The Law School and State Action

At first, the Harvard Law School tried to give Kenneth B. Krohn a gentle let-down. James N. Bierman, then assistant dean and associate director of admissions, wrote to Krohn following his demands to be told the reasons for his rejected application, "I am certain from your fine record that you have been admitted to a number of excellent law schools, and you will do well at whichever one you decide to attend."

But that was May 28, before Krohn filed suit in Massachusetts federal district court asking that Harvard be declared a public institution subject to 14th amendment provisions, and that the Law School be forced to admit him because its secret admissions process violated the due process violated the due process and equal protection clauses of the 14th amendment.

So things have changed. And now, an administrative source says, the University's worries about being declared part of "state action"--not quite public, but still subject to constitutional provisions--are matched only by its concern about the amount of administrative time its lawyers are spending on the case.

If Harvard's attempt to dismiss the case fails outright, Judge Frank Friedman will have to rule on Krohn's argument that the University, under the Massachusetts constitution, is really subject to the state legislature.

If Friedman rules against Harvard and the University's two Ropes and Gray lawyers on that point, the University will have lost the court test, even if Friedman ultimately decides that Krohn, a 37-year-old Harvard Ph.D., is not entitled to admission to the Law School.

Harvard, if it were part of "state action," would have to tailor its hiring, student discipline, and possibly future admissions to constitutional guarantees--meaning that reasons might have to be given and hearings possibly held for fired teachers, disciplined students and rejected applicants.

The University's autonomy would thus be threatened, sources say. For a rejected law school applicant, even one with a "fine record," Kenneth B. Krohn seems to be doing a pretty good job writing his own briefs.