Judicial Decision May Affect Constitution's Minority Clause

The University may not be able to recognize the student assembly ratified last month, because the U.S. Circuit Court of Appeals in North Carolina recently ruled illegal a student government clause similar to the Harvard constitutional convention's minority clause, Archie C. Epps III, dean of students, said yesterday.

The Fourth U.S. Court of Appeals ruled last year that a clause in the student government constitution at the University of North Carolina (UNC) designed to ensure that black students were adequately represented "blatantly fouls the letter and the spirit of both the Civil Rights Acts and the Fourteenth Amendment." The ruling overturned a district court decision in favor of the minority clause.

Daniel Steiner '54, general counsel to the University, said yesterday it is possible that Harvard will not have to comply with the ruling because the University is largely a private institution.

Garry W. Martin '79, president of the Harvard-Radcliffe Black Students Association (HRBSA) when the organization campaigned vigorously for the minority clause last March, and Kathy Rice '80, current president of HRBSA, will meet with Epps this week to "explore the ramifications" of the court decision, Martin said yesterday.

"There might be a trade-off between University recognition of the student assembly and the minority clause," Epps said, adding that former Harvard-Radcliffe Constitutional Convention delegates should seek legal counsel.

Epps said, however, that even though UNC is a state university, it appears that Harvard will be affected by the ruling because the University receives federal funds.

Epps requested that Steiner present a report on the possible ramifications of the appeals decision on the University, but Steiner said Friday "there is a fair amount of research on the issue that has not been done."

The president of UNC has appealed the decision to the United States Supreme Court. The case is on the Supreme Court docket and will probably go before the court this year, Hugh J. Beard Jr., a Charlotte, N.C. lawyer and main plaintiff to the original appeal, said yesterday.

Beard was active in the UNC student government as an undergraduate and opposed the student government when it passed the special minority clause. "When I argued it as an undergraduate I lost. I took it to court years later and won," Beard said, adding he was unsure how the Supreme Court would rule on the decision.

"We have organizational representatives, not racial quotas. BSA could send a white. The court cases are totally inapplicable," Michael A. Calabrese '79, convention chairman said yesterday, adding that the administration would want to eliminate the minority clause for its "noxious overtones rather than legal status."

Epps brought the court decision to the attention of Calabrese before the ratification vote, but Calabrese did not inform all convention delegates, delegates said yesterday.

Epps sent a letter to Calabrese before the ratification vote stating that he had informed Calabrese about the court decision and its possible ramifications in order that he might protect himself should the issue become controversial, Calabrese said last week.

"Epps didn't make an effort to publicize it and neither did the convention," Gideon R. Gil '79, a convention delegate, said yesterday, adding that the few delegates who knew about the court decision felt it would be inappropriate to bring the issue up just before the ratification vote because it would only confuse the minority clause issue.

The University will definitely want to discuss the issue with the student assembly when students elect its members in the fall, Epps said.

Beard said he took UNC to court because the minority clause in the student government's constitution "was immoral and completely ambiguous."

When the nature of the minority clause of Harvard's student government constitution was explained to him, Beard said the court decision definitely applies to Harvard's constitution. He added, "I thought Harvard students had enough intelligence not to partake of any of that kind of insanity."

Martin said the decision bothers him because "it is indicative of a trend against affirmative action in the country. These decisions are based on legal principles and fail to look at reality."

Martin said he thinks the University should recognize the student assembly and not take any action until the Supreme Court has handed down a decision.

Many convention delegates said yesterday the student assembly has no need of University recognition.

"If the University listens to us and takes action on our recommendations, I don't perceive a need for recognition," Peter Fleischer '80, a Lowell House delegate, said yesterday.

Epps said last week the student assembly could not use University buildings, the University name, and other perquisities unless the assembly is recognized by the Faculty or the Committee on Houses and Undergraduate Life (CHUL).

Beard and another UNC law school graduate brought UNC to court, contending that a clause in the UNC student government constitution requiring that there be at least two blacks, two women and two men on the Campus Governing Council (CGC) violated a Supreme Court decision giving citizens a right "to attend a state university free from officially imposed or sanctioned discrimination."

The North Carolina district court ruled that the case was moot because the UNC student body president, who appoints the CGC members if the desired number of men, women and blacks aren't popularly elected, had never had to use his power to appoint any students.

The district court ruled as well that the constitution was not discriminatory because the provisions allow for the appointment of males as well as blacks and females.

The plaintiffs appealed, and the appeals court overturned the district court, stating in its decision "we reverse now on the plain and simple ground that, without either reasonable basis or compelling interest, the composition of the Council is formulated on the basis of race.