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Professor Theodore Ruger writes amicus brief on behalf of basketball coaches

August 29, 2012

University of Pennsylvania Law School Professor Theodore Ruger has seen to it that when the justices of the United States Supreme Court hear a highly anticipated affirmative action case this fall, they will be able to consider the views of a group accustomed to raising their voices on a different type of court:  college basketball coaches.

Ruger, an expert in constitutional law, this month filed an amicus brief in the case of Fisher v. University of Texas. The brief – drafted on behalf of the National Association of Basketball Coaches (NABC), Women’s Basketball Coaches Association, Black Coaches & Administrators, as well as 43 current and former coaches and administrators who signed on as individuals – urges the Court to uphold the university’s affirmative action admissions policy.

“We have seen firsthand the dramatic and lifelong benefits that our team members derive from working and competing alongside individuals of diverse backgrounds,” the coaches and athletic administrators tell the Court. “We are also keenly aware of the importance of not isolating diversity at our university within the athletic department or other subsets of the whole institution.”

Ruger’s brief urges the Court to permit colleges and universities to “continue to use individualized discretion in forming student bodies that reflect university judgment on how to foster such broader and more nuanced diversity on campus.”

Legal experts consider the case, which is scheduled for oral argument on Oct. 10, an important opportunity for the Supreme Court to reconsider a 2003 decision allowing racial preferences in higher education. That decision, Grutter v. Bollinger, involved admissions to the University of Michigan Law School and held that the pursuit of diversity allows admissions personnel at public universities to take account of race as one factor among others in how they select their students.

Though Ruger has joined as a signatory in amicus briefs in the past, including two “professors’ briefs” in the momentous health care case decided by the Supreme Court earlier this year, this is the first time he has served as lead drafter of such a brief. He received the assignment through a law firm where he formerly worked, which represents the NAB C on other matters.

“We knew from prior affirmative action cases like Grutter v. Bollinger that amicus briefs from specific groups of leaders that speak to the tangible benefits of diversity can potentially impact some Justices on the Court,” Ruger said. “The goal was to highlight the specific experience the coaches in these three organizations had in working with a diverse cohort of players over the years.”

The case against the University of Texas was brought in 2008 by undergraduate Abigail Fisher, a white student, who says she was denied admission because of her race. A U.S. District Court in 2009 upheld the legality of the University’s admissions policy. A three-judge panel from the Fifth Circuit also ruled in the University’s favor.

Ruger’s brief notes that African American athletes historically have played a crucial role in integrating several universities, and that today 45.6 percent of all NCAA men’s basketball players and 32.8 percent of women’s basketball players are African American. It goes on to state that “we are also keenly aware that our student-athletes do not, and should not, exist on an island apart from the broader university. The diversity that is important to us as coaches is no less important when our athletes interact as students in the broader university.”