Affirming Diversity

When the Supreme Court handed down its landmark 1978 Bakke decision upholding affirmative action in education, Harvard was at the forefront of the fight—its admissions system put forward by the Court as a model for other universities to follow.

Twenty-five years later, Harvard and others anxiously await the Court’s decision—expected this month—on a pair of affirmative action cases that threaten to overturn the precedent Harvard helped set.

And for the last year, Harvard has again taken a prominent position in the debate over the role race should play in admissions.

Driven by a philosophy that racial diversity should be a pedagogical priority and by its legacy as a champion of affirmative action, the University acted aggressively in submitting a friend-of-the-court-brief co-signed by seven other Ivy League institutions that argued for race to be considered as one factor in admissions.

A slew of Harvard studies, academic works and editorials provided the fodder for affirmative action supporters nationwide.

And when the Court heard oral arguments for the two cases—which challenge the University of Michigan’s undergraduate and law school admissions systems—Harvard again was a focus, as the two sides debated the merits of the “Harvard plan” that was upheld in Bakke.

Meanwhile, other developments this spring hammered home that for Harvard, the debate was not just a philosophical one.

Down the river, MIT was forced to radically revamp a summer program for high school students which a conservative group complained discriminated in admitting only minorities. And a similar program at the Harvard Business School for college seniors is also under fire, raising the prospect that it too would have to abandon its central mission of serving under-represented racial minorities.

The Shape of the Brief

In the 1978 Regents of the University of California v. Bakke case the Court struck down admissions quotas but permitted the use of race as one factor in admissions.

Now, two students denied admission to the University Michigan argue that the schools’ admission policies are de facto quotas.

Michigan’s undergraduate program uses a 150-point system to rate applicants, with minorities, athletes or economically disadvantaged students receiving a 20 point boost.

The Michigan law school’s policy more closely resembles that of Harvard College, which says only that race is considered as a factor in admissions.

Harvard’s amicus curiae brief, drafted by Tyler Professor of Constitutional Law Laurence H. Tribe ’62 and attorney Jonathan S. Massey, argues that the Court should find both of Michigan’s policies constitutional.

Brown University, the University of Chicago, Dartmouth College, Duke University, the University of Pennsylvania, Princeton University and Yale University accepted Harvard’s invitation to sign the more than 60-page brief, but the focus remained mainly on Harvard’s use of race as one factor in admissions.

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.”

It also cites a study released 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 and have been put forward by some as an effective method of increasing diversity.

And the work of a former Harvard president, mentioned in the brief, supports the University’s argument.

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

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.

Ultimately though, the brief is an updated defense of the “Harvard plan,” arguing 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.”

Inside the Courtroom

When the Supreme Court heard oral arguments for both the undergraduate case, Gratz v. Bollinger, and the law school case, Grutter v. Bollinger, Harvard’s admissions policy and research studies surfaced numerous times during the debate.

Maureen E. Mahoney, the attorney for University of Michigan Law School, explicitly referred to Harvard’s plan as a model plan without a quota, and then compared it to Michigan’s law school policy of considering race as one factor in admissions.

Mahoney said that to achieve diversity, “a plan like the Harvard plan...can be used as an effective means.”

But when Justice Ruth Bader Ginsburg later referred to Harvard’s admissions policy, Justice Antonin Scalia dismissed the idea of Harvard’s policy as a model.

“Did the Court know that when the Harvard plan was originally adopted, its purpose was to achieve diversity by reducing the number of Jewish students from New York that were getting into Harvard on the basis of merit alone?” Scalia asked.

Scalia was referring to evidence that in the early 20th century, Harvard used a quota system to restrict the admission of Jewish students, according to Climenko Professor of Law Charles J. Ogletree, who attended the oral arguments. But Ogletree said in April that Scalia’s comment had little relevance to arguments today.

“The plan Harvard has talked about is quite the contrary,” he said. “It is a plan designed to promote diversity of all points of view and to create a strong class of students.”

Besides referring to Harvard’s admissions plans, attorneys also cited Harvard studies to support their arguments.

Justice David H. Souter ’61 mentioned a study by Bok to challenge Solicitor General Ted Olson’s argument that affirmative action may in fact stigmatize minorities instead of benefit them.

Mahoney mentioned a study conducted by 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.”

Scalia’s quick remark—“Sure, they’re already in!”—evoked laughter from the courtroom audience, but also underlined that the Harvard brand played differently with different audiences.

Legal Letter

While the Court considers the Grutter and Gratz cases, two national conservative groups—the Center for Equal Opportunity and the Civil Rights Institute—are challenging the admissions policy of the HBS program.

Representatives from the groups sent a letter to Harvard’s general counsel in mid-March requesting that the HBS Summer Venture in Management Program (SVMP)—a one-week summer academic seminar to introduce rising college seniors to life at the school—end what they called its “racially exclusive” admissions policy.

The program is currently open to African-American, Hispanic and American Indian students.

Since receiving the letter, Harvard has responded that it is too late for the program to consider altering this year’s admissions policy, but that it will reevaluate its admissions procedure after the Supreme Court ruling.

Edward Blum, director of Legal Affairs at the Civil Rights Institute, said that the organizations will file a complaint with the Office for Civil Rights if SVMP admissions policies do not change for next year.

“Regardless of the ruling in the Michigan cases, I believe Harvard will eventually be sued over this program unless it is changed,” Blum said. “I think they very well intend to change it. What they have done is buy themselves another year to offer a program that’s both illegal and immoral.”

Brandon A. Gayle ’03, an SVMP alum and former Black Students Association president, said the lack of minority representation in business schools across the country renders current SVMP admission policy both fair and necessary.

“It’s a wonderful opportunity for minority students to find out what business school is all about, Gayle said. “Given the lack of representation that exists now, [SVMP] is meant to serve a purpose and it’s serving that purpose very well.”

Blum said that his office and the Center for Equal Opportunity sent similar letters to more than 30 universities, and 60 percent have changed the admissions policies of such programs. Their efforts led MIT to open one of its summer programs—Minority Introduction to Engineering, Entrepreneurship and Science—to non-minorities for the first time.

Awaiting the Ruling

Bok said that a ruling in the Michigan cases will likely affect Harvard regardless of which side wins.

“They’re not merely deciding the Constitution, they’re also resolving the meaning of the Higher Education Act which applies to all institutions that receive federal aid,” he said.

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 in February.

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