Affirmative Action Questioned, in Court and out

The refusal of the Supreme Court to review an important affirmative action case, while perhaps not actually raising new questions on the controversial issue, has certainly not answered any either.

The Fifth U.S. Circuit Court of Appeals had ruled against the University of Texas, indicating that the school's affirmative action program discriminated against whites.

While the Supreme Court's refusal to hear the case is not necessarily a show of support for the decision of the lower court, it does not overturn the ruling either, leaving the court's position on affirmative action vague.

The Circuit Court's decision has jurisdiction only in Texas, Louisiana and Mississippi. But while the legal effects of the ruling and the refusal to rule are limited to those states, it is clear that other areas of the country are interested in the outcome of the case: nine states, including Massachusetts, supported Texas' appeal in friend-of-the-court briefs.

The ruling of the Circuit Court provides a precedent which other judges, while not bound to follow, may use as a guideline.

In addition, the ruling could be seen as an indication of a societal and judicial movement away from affirmative action--especially when plotted against the background of other such cases, such as the recent lawsuit brought and won by a white student not admitted to a Boston high school.

Prominent Harvard professors disagree on the effects of the case.

"It has absolutely no effect on Harvard," said Laurence H. Tribe '62, Tyler professor of constitutional law, noting the jurisdictional issues involved. "And the facts of the case make it even less relevant."

According to Tribe, who filed the appeal before the Supreme Court, the University of Texas used a two-track system which divided applicants by race before considering them.

"It's really a double standard," said Tribe. "Race is absolutely decisive for a number of applicants in the two-track program."

In contrast, Harvard's program uses race as one of many factors, according to Tribe.

"Harvard compares everybody on an individual basis," Tribe said. "That does not involve classifying people by race, it merely involves considering race as one of many factors."

However Tribe also noted that if the Supreme Court makes a ruling about a program in which race is merely a factor, the decision could indeed affect Harvard's policies.

"Harvard as a private university receiving government funds would be bound by the same principles as a state university," Tribe said.

Harvey C. Mansfield Jr. '53, Kenan professor of government, said he thought the decision was an indication of a trend away from affirmative action--a trend that could affect Harvard's admissions practices.

"The language in the [Circuit Court] judge's opinion is altogether hostile to Harvard's current practices on affirmative action," Mansfield said. "It was in some sense validated by the Supreme Court when they refused to review it."

Tribe, however, emphasized that the Supreme Court's move was an abstention, not a vote one way or the other.

"The Supreme Court's refusal to hear the case is not a decision supporting the lower court's decision," said Tribe.

Tribe also said that the court may just have decided, particularly because of the unusual two-track system, that the case was not the best one to resolve such a controversial issue.

Mansfield, however, said Harvard's admissions policy is not that different from Texas'.

"In fact we've been using race not just as a balance tipper but as a decisive factor," said Mansfield. "We need to rethink our whole affirmative action policy."

Mansfield also said he believes that the case signals the beginning of the end for affirmative action.

"I think at least in the courts the days of affirmative action are numbered," Mansfield said.

In particular, he said he thought Harvard's practices would not stand.

"I think Harvard is quite likely to change its policy," Mansfield said. "The Harvard administration is not made up of fools."

Dean of Admissions and Financial Aid William R. Fitzsimmons '67 refused to comment on the case, as did a Harvard spokesperson reached yesterday

"The Supreme Court's refusal to hear the case is not a decision supporting the lower court's decision," said Tribe.

Tribe also said that the court may just have decided, particularly because of the unusual two-track system, that the case was not the best one to resolve such a controversial issue.

Mansfield, however, said Harvard's admissions policy is not that different from Texas'.

"In fact we've been using race not just as a balance tipper but as a decisive factor," said Mansfield. "We need to rethink our whole affirmative action policy."

Mansfield also said he believes that the case signals the beginning of the end for affirmative action.

"I think at least in the courts the days of affirmative action are numbered," Mansfield said.

In particular, he said he thought Harvard's practices would not stand.

"I think Harvard is quite likely to change its policy," Mansfield said. "The Harvard administration is not made up of fools."

Dean of Admissions and Financial Aid William R. Fitzsimmons '67 refused to comment on the case, as did a Harvard spokesperson reached yesterday