Admissions Goes to Court

As attorneys representing the University of Texas prepare to defend the school’s affirmative action policies before the Supreme Court this fall, they face an uphill battle. Legal experts say that the Roberts Court is poised to rule against Texas’ policies aimed at increasing racial diversity.

The attorneys reporting to Texas are also indirectly defending Harvard, which originally laid the groundwork for affirmative action as it is used today.

Harvard’s efforts to increase diversity have been a model for peer institutions since 1978 when the Supreme Court cited the University’s affirmative action policy as an “illuminating example” of how race should be considered in college admissions.

Since then, Harvard’s holistic approach has been put to the test on a number of occasions. In 2003, the Court agreed to hear a case challenging affirmative action but ultimately voted to uphold the use of race as one consideration among many in the admissions process. And earlier this year, the College faced a complaint of discrimination against Asian-American applicants which was withdrawn.

Though the University’s policy has managed to endure thus far, this fall’s case—Fisher v. Texas—has Harvard worried. The University’s three-decade-long reputation as the standard bearer of increased diversity and accessibility in higher education has come under attack, and this time around the outcome is far from certain.

BECOMING A MODEL

When the Supreme Court heard Regents of the University of California v. Bakke in 1978, the Court had no precedent on affirmative action in higher education. Eager to help define the acceptable means of considering race in admission, Harvard jumped into the debate. Then-University General Counsel Daniel Steiner ’54 convinced the University of California to allow Archibald Cox ’34, a professor at Harvard Law School, to defend affirmative action to the Supreme Court on behalf of the University of California, according to former University President Derek C. Bok.

“Such a delegation of responsibility was unusual, and I’m not sure how Dan managed it,” Bok wrote in a statement to The Crimson. “Archie put together a team of outstanding constitutional lawyers to prepare the brief and then made the argument to the Court.”

The University also filed an amicus curiae brief—a formal legal expression of support—outlining and explaining Harvard’s treatment of race in admissions.

“[R]ace is considered in a flexible program designed to achieve diversity but it is only one factor weighed competitively against the number of other factors being relevant,” the brief read.

The Court was persuaded not only by Cox’s oral argument, but also by Harvard’s brief. Justice Lewis F. Powell’s majority decision cited the College’s admissions policy as the most effective and thoughtful method of considering race while remaining within the bounds of the Equal Protection Clause of 14th Amendment.

“I have no way of knowing what prompted the Court to use our admissions policy as an appendix to the majority opinion,” wrote Bok. “[B]ut I assume that...the Court felt that it embodied very well what the majority had in mind.”

L. Fred Jewett ’57, who served as dean of admissions at the time, interpreted the Court’s decision as sanctioning the College’s practices already in place.

“It’s hard to tell what it’s going to mean in the long run. There may be subsequent decisions, but we didn’t see anything in Bakke to prohibit what we’re doing,” Jewett said at the time.

Current Dean of Admissions and Financial Aid William R. Fitzsimmons ’67, who was an admissions officer at the time, declined to comment on his office’s response to the Bakke decision.

Regardless of Harvard’s immediate reaction, the decision pushed Harvard’s policy into the spotlight. Soon Harvard’s holistic approach became the paragon for affirmative action policies.

“I think Justice Powell was clearly trying to articulate a road map for universities that would work,” said Richard D. Kahlenberg ’85, senior fellow at The Century Foundation. “Harvard was the model that the Supreme Court pointed to, and so that’s what universities sought to do.”

In 2003, when the Court reconsidered affirmative action in the case Grutter v. Bollinger, Harvard again sought to influence the debate by filing an amicus brief in support of the University of Michigan. Though the Court did not cite the document specifically, it upheld Bakke, leaving Harvard’s program as the model framework.

A YEAR OF CHALLENGES

Though it has been 35 years since Harvard helped to lay the legal foundation for affirmative action, diversity remains a controversial topic when it comes to college admissions. In the past year, Harvard has found itself at the center of debate after it was accused of discriminating against Asian-American applicants and after it reinstated its early action admissions program.

As the tug-of-war between supporters and detractors of affirmative actions continues, Harvard has been forced to navigate choppy waters—reaffirming its commitment to diversity while wavering on the means to get there.

In August, an Asian-American student whose undergraduate application had been turned down by Harvard filed a complaint with the Office of Civil Rights at the Department of Education alleging that the rejection was based on race. The Department of Education opened an investigation which lasted several months before the student withdrew the complaint.

When news of the investigation broke, the University defended the legality of its admissions policies using language reminiscent of the majority opinion in Bakke.

“Our review of every applicant’s file is highly individualized and holistic, as we give serious consideration to all of the information we receive and all of the ways in which the candidate might contribute to our vibrant educational environment and community,” wrote Faculty of Arts and Sciences spokesperson Jeff Neal in a statement at the time.

Harvard Law School professor Mark V. Tushnet ’67 said that universities are always vulnerable to attacks from disgruntled applicants.

“It’s always a threat that some disappointed applicants would invoke Title VI,” said Tushnet, referring to the section of the Civil Rights Act of 1964 that prohibits discrimination at institutions that receive federal funding. “As far as I know, it’s an effort that has been met with little success.”

In addition to the negative publicity surrounding the civil rights complaint, many criticized the College’s restoration of its early action admissions option, which it had eliminated in 2007, arguing at the time that it advantaged students from privileged backgrounds. This year’s admissions cycle was the first in four years to offer an early action option.

“I thought it was unfortunate that Harvard reversed itself on early admission. I thought it was a step background,” said Kahlenberg, who praised Harvard for its other efforts to improve economic diversity.

Despite this criticism, administrators maintain that early admission no longer detracts from efforts to promote diversity.

When early admission was reinstated, University President Drew G. Faust said that the return of early action had become “consistent with our bedrock commitment to access, affordability, and excellence.”

In fact, representation of racial and ethnic minorities has indeed remained relatively steady in the first class admitted under the revived early action program. Black students comprise 11.8 percent of those admitted to the pre-early action Class of 2015 and 10.2 percent of those admitted to this year’s admitted Class of 2016. The percentage of Latino students declined from 12.1 percent to 11.2 percent.

Still, Kahlenberg maintains that early admission delivers the greatest blow to socioeconomic diversity.

“Harvard should give greater weight to the economicobstacles that a student has overcome in the admissions process,” he said. “The financial aid piece is terrific, but it doesn’t help students to know that financial aid is available if they’re shut out.”

PLAYING DEFENSE

Legal experts agree that the Court will likely rule against the method of affirmative action employed by the University of Texas. Still, the concrete consequences for Harvard are difficult to predict—depending on the wording and nuances of the decision, the ruling could leave Harvard unscathed, or it could necessitate a dramatic change in the way Harvard evaluates applicants.

Even if the Court rules against Texas, universities could potentially consider race using non-explicit means, a system Justice Ruth Bader Ginsburg described as a set of “winks, nods, and disguises.”

Harvard Law School professor Richard H. Fallon said this sort of system could be particularly effective at institutions with significant resources like Harvard.

“The elite rich universities and private colleges that are in a position to do highly individualized assessments of individual applications would find ways to continue to seek diversity without asking students to identify themselves by race. But that’s only a guess,” Fallon said.

Fallon said he believes that the Court will rule against Texas, but he also expressed skepticism that the decision would completely eradicate the consideration of race in admissions. Justice Anthony M. Kennedy, the Court’s likely swing vote, has stated that he supports Powell’s reasoning in the Bakke decision, according to Fallon.

“Knowing who wins and who loses isn’t going to be enough to give anybody very much guidance until somebody reads an opinion and understands why what Texas is doing is either permissible or not permissible,” said Fallon. “Where will Justice Kennedy draw the line? I don’t know where...but if I were sitting over in Massachusetts Hall I would be very concerned.”

Perhaps for these reasons, Harvard remains invested in helping to defend Texas.

“I think we’re very concerned because having a basis on which to choose students that takes into account a broad variety of factors is extremely important to us,” said Faust of Harvard’s position on Fisher v. Texas.

Faust’s concern has been echoed in the actions of the University and its peer schools. Months away from the Court hearings, Harvard has partnered with six other institutions—Brown, Duke, Princeton, Yale, the University of Pennsylvania, and the University of Chicago—to retain former U.S. Solicitor General Seth P. Waxman ’73 to prepare an amicus brief in defense of affirmative action, according to University General Counsel Robert W. Iuliano ’83

“Student body diversity powerfully improves the educational experience of all students and prepares our graduates to be effective citizens in an increasingly diverse society,” Iuliano wrote in an email. “The consideration of race as one of many factors in an individualized review of each candidate helps us achieve those goals by composing a class that is more than the sum of its parts.”

While experts said they understand the University’s concern for its affirmative action program, they believe the worries stem from a deeper anxiety about universities’ freedom and independence.

“I would suppose it is to defend what you might call academic discretion on behalf of all universities, saying that universities ought to have flexibility into taking race into account,” Tushnet said.

The bottom line, legal experts agree, will only emerge when the Court issues its ruling next spring.

“It’s not at all clear,” said Fallon of how a ruling against Texas would affect Harvard. “You just have to wait and see.”

—Staff writer Justin C. Worland can be reached at jworland@college.harvard.edu.