Faust, Experts Weigh In on Supreme Court’s Affirmative Action Ruling

As University President Drew G. Faust applauded the U.S. Supreme Court’s ruling on race-conscious college admissions Monday, several legal experts said they do not expect the decision to end holistic admissions processes like Harvard’s.

In the case, Fisher v. University of Texas at Austin, Abigail N. Fisher sued the University of Texas at Austin, saying that she was denied admission in 2008 because she is white.

In a 7-1 decision that both advocates and opponents of affirmative action claimed as a victory, the Court did not directly address the constitutionality of the University of Texas at Austin’s policies, instead sending the case back to the lower courts for further review. The majority opinion, delivered by Justice Anthony Kennedy, argued that the lower courts did not “apply the correct standard of strict scrutiny,” which stipulates that universities must show there are not race-neutral alternatives to affirmative action that can achieve the same goal. Still, the opinion affirmed that universities have an interest in encouraging diversity in their student bodies and may consider race as one factor, among others, in the admission process, as outlined in previous decisions.

In a statement posted on Harvard University’s website Monday, Faust lauded the Court’s decision as a victory for universities with holistic admissions processes.

“We are heartened that the Supreme Court today has affirmed the vital interest of universities in bringing together students from many different backgrounds and points of view,” Faust wrote. “Such diversity enriches the learning experience for all our students, as they live and learn in a community whose collective variety of experiences, interests, and perspectives opens minds, expands horizons, and better prepares students to live and serve in a pluralistic world.”

Several legal experts interviewed for this article said they believe the ruling is unlikely to bring about staggering changes to race-conscious admissions processes at schools like Harvard.

"Certainly Harvard is going take a position that its program has been repeatedly ruled positively by the Supreme Court, and so it will take a position that it doesn't have to do anything, and that's almost certainly right,” Law School professor Mark V. Tushnet ’67 said. “I don't think there will be any effect on whatever it is that Harvard is doing in the area.”

Peter F. Lake ’81, a professor at Stetson University College of Law who specializes in higher education law, added that in the wake of the ruling, "race-conscious admissions in some form or [an]other may still be able to survive into the future.”

Still, legal experts said the decision may lead to greater scrutiny of affirmative action programs.

"I don't think there is a lot new there,” said Tomiko Brown-Nagin, a Law School professor who jointly submitted an amicus brief on the case with Law School professor Lani Guinier ’71 on behalf of Advancement Project, a nonprofit civil rights organization. “Most of what is in that opinion has been said before.... At the same time, the major stress through the opinion is that the federal courts must scrutinize in a very robust way how universities are actually implementing their affirmative action policies.”

Brown-Nagin added that she was not speaking about the impact of the ruling at Harvard specifically.

Lake said that another significant implication of the ruling could be the filing of further lawsuits challenging affirmative action programs.

“[Sending the case back to the lower courts] virtually guarantees that the Court will look at these issues again,” Lake said.

Harvard has used a race-conscious admissions process for years. In the Fisher case, the University, along with several peer institutions, submitted an amicus brief defending the University of Texas’s policies. Harvard’s admission program was also cited as an example of a constitutional affirmative action policy in the majority opinion in Regents of the University of California v. Bakke, a 1978 U.S. Supreme Court decision that set a precedent for the acceptable use of race as a criterion of admission in higher education.

—Staff writer Madeline R. Conway can be reached at mconway@college.harvard.edu. Follow her on Twitter @MadelineRConway.