WHEREAS, the United States Supreme Court has granted certiorari to review Grutter v. Bollinger 288 F.3d 732 (2002), the decision of the Sixth Circuit Court of Appeals that upheld the right of the Board of Regents of the University of Michigan to employ an affirmative action policy in its law school admissions program;

WHEREAS, in 1978 the United States Supreme Court declared in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733 (1978) that "the attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education";

WHEREAS, Justice Powell in his opinion announcing the judgment of the Court gave the example of the Harvard Plan as a constitutionally permissible model for an affirmative action plan, and noted that Harvard employed race or ethnicity as one "plus" factor among many factors that it considered in selecting its student body;

WHEREAS, the Sixth Circuit found that the policy challenged at the University of Michigan Law School was modeled after the Harvard Plan, and that it merely used race or ethnicity as one factor among many that it considered in selecting among student applicants in an effort to promote the goal of diversity;

WHEREAS, there has been a decline in the percentage of minority students in a number of our leading law schools that have been prohibited by statute or judicial order from continuing to implement a policy of affirmative action in their admissions programs, to the detriment of their educational programs;

WHEREAS, the ABA Commission on Racial and Ethnic Diversity in the Profession recently concluded that "the legal profession-already one of the least integrated professions in the country-threatens to become even less representative of the citizens and society it serves";

WHEREAS, the Philadelphia Bar Association has opposed state legislation that would "prohibit affirmative action based on race, sex, color, ethnicity or national origin in the Commonwealth system of public employment, public education, or public contracting";

WHEREAS, the American Bar Association is on record as an amicus curiae supporting the affirmative action program adopted by the University of Michigan Law School;

NOW, THEREFORE, BE IT RESOLVED, that the Board of Governors of the Philadelphia Bar Association declares its support for the goal of student diversity in higher education and for the consideration of race or ethnicity as a "plus" factor among others in an academic admissions policy.

ADOPTED: February 26, 2003

1. The Court has also granted certiorari in an appeal pending before the Sixth Circuit that challenged the constitutionality of the consideration of race as a factor to promote diversity in the undergraduate admission program of the University of Michigan. Gratz v. Bollinger, 123 S.Ct. 617 (Dec. 2, 2002).

2. Id. at 311-12, 98 S.Ct. at 2759 (Justice Powell, opinion announcing the judgment of the Court).

3. Id. at 316, 98 S.Ct. 2761-62 (Justice Powell, opinion announcing the judgment of the Court).

4. See e.g., New York Times, January 19, 2003, Section 4, at 1, col. 1 ("Affirmative Action By Any Other Name") (Week In Review).

5. "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned." Bakke, 438 U.S. at 314, 98 S.Ct. at 2760 (Justice Powell) (quoting Sweatt v. Painter, 339 U.S. 629, 634, 70 S.Ct. 848, 850 (1950)(14th Amendment required that African American be admitted to the University of Texas Law School)).

6. Elizabeth Chambliss, American Bar Association, Miles to Go 2000: Progress of Minorities in the Legal Profession x (2000).

7. See Affirmative Action Policies and Remedies, Board Resolution, July 27, 1995.