Harvard Files Brief With High Court

Harvard—in a friend-of-the-court brief signed by seven other universities—asked the Supreme Court to uphold the principle of affirmative action in college admissions yesterday.

In April, the court will hear arguments in two cases challenging the University of Michigan’s undergraduate and law school admissions policies as well as the concept of affirmative action in admissions in general.

The brief argues that the court should find both of Michigan’s policies constitutional.

Michigan’s undergraduate admissions decisions are based on a point system, in which minority students are given a 20 point boost. The law school’s policy more closely resembles that of Harvard College, which says only that race is considered as a factor in admissions.

The bulk of the brief outlines and defends Harvard’s policy, making the argument that diversity is an educational benefit and that alternative means of ensuring a diverse student body are flawed.

Drafted by Tyler Professor of Constitutional Law Laurence H. Tribe and attorney Jonathan S. Massey, the brief is one of more than 60 in support of Michigan’s policies filed by today’s deadline.

Brown University, the University of Chicago, Dartmouth College, Duke University, the University of Pennsylvania, Princeton University and Yale University accepted an invitation to sign Harvard’s brief.

The move once again puts Harvard in the spotlight as the affirmative action debate is played out in court.

The last time the high court considered affirmative action in admissions, in the 1978 Regents of the University of California v. Bakke case, a Harvard brief proved central to its decision. Though the court prohibited the use of quotas in admissions, it upheld some forms of affirmative action, citing Harvard College’s admission policy as a model.

University President Lawrence H. Summers was unavailable for comment yesterday, but Summers outlined the main points of the brief in a press release.

“We hope the Supreme Court, as it did 25 years ago in Bakke, will preserve universities’ flexibility to maintain carefully tailored admissions programs that do not turn a blind eye to the powerful educational value of student diversity,” Summers said.

University General Counsel Robert W. Iuliano stressed the importance of speaking out in support of affirmative action, particularly since private universities like Harvard could be negatively affected by a ruling overturning Bakke.

“We have a stake in this—this is an important case for us,” Iuliano said.

If the court were to reverse the Bakke decision, private institutions including Harvard could risk losing federal funds for financial aid and research based on Title VI of the Civil Rights Act.

Derek C. Bok, a vocal supporter of affirmative action who served as Harvard’s president during the Bakke case, said in an interview last week that the University’s brief would likely play an important role in the Michigan cases.

“My guess is people will look carefully at Harvard’s brief,” he said. “Harvard has visibility and a track record in this area.”

The Process

Though Harvard served as the primary writer of the brief, the other signatories provided feedback during the drafting process.

Dartmouth General Counsel Robert B. Donin said he began to review the brief shortly before winter vacation.

He stressed the importance of universities banding together to sign a single brief instead of filing individually.

“In a case such as this, the court receives many amicus briefs. If each school submitted an individual one, there would be many more briefs than the court has time to read,” Donin said.

Langdell Professor of Law Martha A. Field said the quantity of signatories is not as important as the quality.

“I don’t think that the number is important,” Field said. “But the fact that top educational institutions signed, including ones known as rather conservative, could have some influence with the court.”

Princeton Counsel Lorraine Sciarra said the schools’ shared principles made filing a joint brief a logical step.

“We are absolutely at one with the view expressed in the brief,” she said.

Despite the other signatories, the brief only specifically cites Harvard’s undergraduate admissions policy—a choice those signing the brief decided upon from the start.

“The admissions policies that are mentioned in the brief are representative of all of the admissions policies at these eight schools,” Donin said.

The Shape of the Brief

The 29 pages of text that comprise the University’s brief present an argument which explains Harvard’s use of race as one factor in admissions.

But the primary focus of the brief, Sciarra said, is “the importance of diversity for the country and the world.”

“It’s not arguing every case and fine point of the law,” Sciarra said. “It’s almost a sociological view grounded in the law.”

The brief cites several Harvard-linked studies, including one conducted by Professor of Education and Social Policy Gary A. Orfield, in which a majority of Harvard and Michigan law students said that “students of different races” provided a “clearly positive element of their educational experience.”

The brief also cites a study released last week by Harvard’s Civil Rights Project, which Orfield heads, that argues against percentage plans, which some state universities use to automatically admit high-ranking high school students.

The study used data from Texas, California and Florida state schools to conclude that percentage plans are an ineffective means for attaining ethnic diversity.

The plans have been cited by President Bush as an alternative to race-based admissions policies.

The Bush administration filed briefs against the University of Michigan, arguing that the court should declare its policies unconstitutional without reversing the Bakke decision.

The Harvard brief also cites data from a 1998 book defending affirmative action in college admissions—The Shape of the River, authored by Bok and former Princeton President William G. Bowen—to prove what they consider the success of the Bakke decision.

Data from the book shows that “minority students admitted under these programs were highly successfully in completing rigorous academic programs, securing good jobs and contributing to community life,” according to the brief.

Another section of the brief presents what one University official called a “relatively new argument”—that American professions and businesses need leaders with experience in diversity.

“Leading corporations, business groups, professional organizations and executives have repeatedly called for consideration of race and ethnicity in university admissions,” the brief states.

MIT announced last week that it would file its brief jointly with Stanford University, the National Academy of Sciences, IBM and Du Pont.

And in a speech yesterday to the American Council on Education, University of Michigan President Mary Sue Coleman said that more than 60 Fortune 500 corporations, including General Motors, Microsoft and American Express, will file briefs in support of Michigan.

Coleman also noted that the number of the case may set a record for “the largest number of briefs ever filed in the history of the court on a single issue.”

Also, late last night the Harvard Black Law Students Association (BLSA) announced it will file a brief today along with the Stanford and Yale BLSA groups.

Convincing the Court

The bulk of Harvard’s brief argues for the importance of diversity and outlines the methods Harvard uses to ensure a diverse student body, ultimately recommending that the court uphold the Bakke decision and both of Michigan’s admissions policies.

Today, Harvard says it looks at race as one of many factors in admissions.

“Admissions officials give special attention to, among others, applicants from economically and/or culturally disadvantaged backgrounds, those with unusual athletic ability, those with special artistic talents, those who would be the first in their families to attend college, those whose parents are alumni or alumnae, and those who have overcome various identifiable hardships,” the brief states.

It further argues that “an individualized admissions process” does not “become a ‘quota’ simply because the number of admitted minority students may not vary radically from year to year.”

Brief History

Harvard has long played an active role in advocating the use of race as a factor in admissions.

In addition to his own advocacy for affirmative action, Bok said that it was Harvard that convinced the University of California to allow Harvard Professor Emeritus Archibald Cox to argue the Bakke case in front of the court.

Neil L. Rudenstine, Bok’s successor as president, publicly criticized the 1996 ruling of the Fifth Circuit Court of Appeals in the case Hopwood v. Texas, which forbade the University of Texas from using race as a factor in law school admissions.

Rudenstine organized a statement on diversity signed by members of the Association of American Universities and published in The New York Times in April 1997. He was honored by the National Association for the Advancement of Colored People that year for his efforts.

And along with Bowen, Rudenstine co-authored an article in favor of race-conscious admissions policies which appeared in the Feb. 7 edition of The Chronicle of Higher Education, and was cited in Harvard’s brief.

Bok’s connections to the affirmative action debate, however, don’t end with his scholarship and advocacy work.

With the court likely to split down the middle, one of his former Stanford classmates could end up casting the deciding vote.

“I went to college with Sandra Day O’Connor, but we didn’t talk too much about preferential admissions,” Bok said.

—Staff writer Jenifer L. Steinhardt can be reached at steinhar@fas.harvard.edu.