by Jessica Howard
Vanderbilt recently filed two amicus curiae — friend-of-the-court — briefs in support of separate cases filed by two major universities. The briefs were filed to articulate Vanderbilt’s position on two important issues: a Supreme Court case on how affirmative action affects university admission policies, and a U.S. Circuit Court of Appeals case on patent infringements for academic scientific research.

It’s not unusual for the University to become involved in issues shaping national policy, but it is uncommon for Vanderbilt to file two amicus briefs in the period of two months, said Leona Marx, University counsel.

The Supreme Court is interested in how broadly a ruling will affect the various sectors of the national community and takes amicus briefs into consideration when making a decision, she said.

Garnering the most national attention is the brief with the U.S. Supreme Court by four other private universities in support of the University of Michigan and the University of Michigan Law School in their efforts to defend the principles of affirmative action in college admissions.

“ The purpose of the brief is to alert the court that there is a powerful First Amendment issue,” prominent First Amendment attorney Floyd Abrams told The Tennessean. “The decision of a university to reflect the diversity of the nation in its student body is a serious one and a legitimate one.”

The brief, which was jointly developed and signed by Vanderbilt, Cornell, Columbia, Georgetown and Rice, is one of what is expected to be a large number of friend-of-the-court statements submitted on both sides of the landmark legal case, which the Supreme Court is expected to hear in April.

“ Vanderbilt and our fellow institutions are focused on preparing students for the complexities of a rapidly changing world, one in which diversity of background, perspective and thought is an essential component,” said Chancellor Gordon Gee. “It is equally essential that we maintain the ability to select and provide opportunities for students free of arbitrary legal mandates.”

The brief states that a university’s constitutionally based academic freedom interests can be accommodated and the equal protection interests of the plaintiffs still vindicated by giving “a high degree of deference to a university’s good-faith determination as to how to further its academic mission.

“ In the course of the wrenching legal and public policy debate about university admission policies that take account of race to some degree or other, little has been said about the First Amendment rights of the universities themselves.”

The argument concludes by noting, “In this case, the University of Michigan has determined that to achieve a level of diversity consistent with the university’s educational mission, it was necessary to consider race as one of many factors in the admissions process. That is the same decision that public and private colleges and universities throughout the country have made for themselves, tailored by each for the accomplishment of its educational mission.”

Abrams, from the law firm Cahill Gordon & Reindel in New York City, prepared the brief with input from Vanderbilt Vice Chancellor for University Affairs and General Counsel David Williams II and the chief legal officers from the four schools.

In another gesture of support, Vanderbilt was one of 31 universities and associations that filed an amicus curiae as a result of Duke University’s request for the U.S. Supreme Court of Appeals to review the ruling in Duke v. Madey, the 2002 case that eliminated universities from being exempt from “liability for patent infringement of noncommercial academic research,” the Association of American Universities recently reported.

John M.J. Madey invented the free-electron laser while he was a faculty member at Duke University. When he left, his former employer continued to use the laser for non-commercial, experimental research. Madey, who had registered a patent on the laser, filed suit against Duke and the circuit court ruled in his favor.

The brief indicated that universities spent more than $30 billion on scientific research in 2000, and the court’s decision “poses a serious threat not only to the viability of many individual academic research projects but also to the vitality of academic scientific research generally.”

Citing the court’s decision as a “significant roadblock to the advancement of science,” the amicus curiae expressed concern that basic biotechnology and biomedical research costs would significantly increase, among other concerns.

“ The reason Vanderbilt is demonstrating its leadership in this area is because this case is extremely important because of its impact on our faculty’s ability to do their research,” said Chris McKinney, director of the technology transfer office.

Posted 2/24/03 at 10 a.m.