In Fisher Amicus Brief, Harvard Defends Affirmative Action

Harvard filed an amicus curiae brief in the upcoming U.S. Supreme Court affirmative action case Fisher vs. University of Texas at Austin on Tuesday, putting forth an impassioned defense of race-based affirmative action.

In the 27-page brief, Harvard urged the Court to continue permitting the consideration of race as a factor in college admissions processes, arguing that a diverse student body is “a compelling interest that justifies race-conscious admissions in higher education.” Alternative, rigidly race-neutral policies, Harvard argued, would diminish the “excellence of the education Harvard offers.”

By Shunella Grace Lumas

The amicus brief is the latest statement in Harvard’s ongoing defense of its admissions policies, which have been widely scrutinized in light of a lawsuit filed last year accusing the College of discriminating against Asian American applicants through its use of race-based affirmative action.

Edward Blum, the man behind both the Harvard lawsuit and the original Fisher v. Texas case, said when asked for comment on Tuesday afternoon that he had not yet read Harvard’s brief.

Fisher v. Texas, first heard by the Supreme Court in 2013, involves a white woman who was denied admission to the University of Texas at Austin and filed suit against the school alleging that its admissions department discriminates based on race in violation of the Fourteenth Amendment. After the Court ruled that a lower court had failed to apply the right standard of scrutiny in examining Texas’s admissions policies, a circuit court decided in favor of the university. Fisher appealed that ruling, and the Supreme Court opted to rehear the case. Oral arguments are slated to take place in December.

After the Supreme Court agreed to rehear Fisher, Harvard requested a delay of the lawsuit against it pending the Court’s ruling. In a motion, Harvard argued that Fisher “presents the Supreme Court with an opportunity to clarify the law governing how public universities may consider race in the admissions process.”

Judge Allison D. Burroughs granted Harvard that postponement, and parties are currently awaiting word on the extent and nature of the lawsuit’s discovery period.

Experts have said that both the Harvard lawsuit and the Fisher case pose a significant threat to Harvard and peer institutions’ consideration of race as a factor in its admissions decisions.

Harvard’s brief weighing in on the Fisher case builds on statements from top University officials. It explicitly cites remarks made by University President Drew G. Faust earlier this year affirming the College’s commitment to diversity in its student body. In an address at Memorial Church in September, Faust promised a “vigorous defense of our procedures” in the wake of the lawsuit against Harvard and said its threat to affirmative action challenges Harvard’s “most fundamental values.”

Echoing Faust, the amicus brief goes on to argue that the College seeks to admit students “of varied backgrounds, socioeconomic circumstances, talents, interests, viewpoints, ambitions, and skills,” of which racial and ethnic diversity play a legitimate part.

“Indeed, to say that race and ethnicity are the only aspects of a student’s background that a university may not consider would be willfully blind to the continuing relevance of race in our society,” it says.

In the brief, Harvard continued to defend its consideration of an applicant’s race as part of a holistic evaluation process that does not involve any formulas or quantitative cut-offs.

“Harvard has committed extraordinary resources to a labor-intensive admissions process that aims to consider every dimension of the perspective each individual applicant might bring to campus, including the applicant’s race or identity,” the brief says.

The brief also contends that Harvard’s admissions office considers race as a factor in the same way that it would consider other factors like geographic origin, work experience, and academic or athletic achievement. An applicant’s race, Harvard’s lawyers wrote, “is but a piece of a larger mosaic, and is considered only to understand the applicant as a complete and distinct individual.”

The brief also notes that Harvard does not compel students to “claim membership” in any racial group, but instead permits applicants to self-identify their race or ethnicity if they deem it relevant.

Peter F. Lake ’81, a professor at Stetson University College of Law who specializes in higher education law, said Harvard’s decision to file an amicus brief in the Fisher case is unsurprising.

“Harvard has articulated a valiant defense of its holistic, individualized assessment process and why a race conscious process is preferable to a race-neutral process,” Lake wrote in an email. “The question is whether the Supreme Court will accept the idea that any race-conscious process can survive strict scrutiny. If any can, it is likely it is Harvard’s.”