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John Harvard's Journal

Affirmative Amicus

May-June 2003

Continuing a long tradition of University leadership on diversity in admissions, Harvard filed an amicus curiae brief in the University of Michigan cases scheduled for argument before the Supreme Court on April 1. The brief — filed February 17 on behalf of Harvard, Brown, the University of Chicago, Dartmouth, Duke, the University of Pennsylvania, Princeton, and Yale — presented the case in favor of continuing to consider race as one factor in individualized admissions systems. (The text appears on line at www.news.harvard.edu/gazette/daily/0302/17-amicus.html.)

In a statement accompanying the filing, President Lawrence H. Summers emphasized the "vital educational benefits for all students" of bringing them together from different backgrounds, and the benefit to society of educating graduates who will, accordingly, be better prepared to "serve as leaders in a multiracial society." Such admissions policies, he noted, "carefully consider each applicant as a whole individual, not just as a product of grades or test scores," and so are more appropriate than externally imposed "blunter" policies or standards that purport to be oblivious to ethnicity or race.

Harvard's friend-of-the-court role is of special interest because its admissions procedure was singled out in the precedent-setting 1978 Bakke case, the current legal underpinning for educational institutions' admissions processes that take race into account in evaluating individual applicants. In the years since, then-president (now president emeritus) Derek Bok and Princeton president emeritus William G. Bowen wrote The Shape of the River, the most comprehensive study of the effects of considering race as part of college and university admissions (reviewed in the November-December 1998 issue, page 27). Bok's immediate successor, Neil L. Rudenstine, made the educational benefits of diversity the subject of his President's Report 1993-1995: Diversity and Learning (excerpted in the March-April 1996 magazine, page 48). Those works, current writings on the subject by Bok, Rudenstine, and Bowen, and recent research by Harvard scholars are all cited in the brief, lending a strong chain of support to its argument that the "principle underlying Bakke has become the basis of well-settled reliance" not only by the amici, but by secondary schools, students, alumni, and businesses. The Supreme Court, the brief argues, should not "trigger wrenching disruption" by overturning its own established precedent.

Turning to substantive matters, the brief argues that universities should be free to compose classes comprising many different kinds of students, so long as they do not rely on impermissible processes that "separate, subordinate, or stigmatize" applicants or exclude a student from a place in a class on account of her or his race. Moreover, universities ought to be able to pursue diverse approaches in lawfully composing their student bodies, rather than being subjected to the "dead hand of a stifling uniformity." Given agreement on the ends of diversity, the means by which it should be achieved — at issue in the Michigan cases — ought to be left to the "institutional competence and academic freedom" of the universities themselves.

"Diversity helps students confront perspectives other than their own and thus to think more rigorously and imaginatively," the brief argues. Among the educational benefits are the opportunity for students to discover that "there is a broad range of viewpoint and experience within any given minority community...."

Those benefits are realized through the admissions practices now in place (for a brief description, see the "Browser," page 15). Harvard and its side assert that the arguments advocated by the litigants who challenge the University of Michigan are "beset by intractable contradictions": their supposedly "race-neutral" alternatives, meant to produce diverse and racially inclusive student populations, will displace as many or more nonminority applicants than the policies they oppose — or they will fail to bring about diversity. Either way, such policies would cripple universities' abilities to diversify their student bodies by musical talent, personal experience, or other criteria, and so are "anti-meritocratic and utterly contrary to...individualized admissions philosophies." Moreover, for selective national universities and for graduate schools, rules such as guaranteeing admission to the top 4 to 20 percent of each high-school class (the practice in California, Texas, and Florida) are simply impossible to effect. Admissions cannot be squeezed into "so Procrustean a bed," nor is it wise policy to force universities "to serve one vital interest (racial diversity) at the expense of another (individualized selection of students)," sacrificing academic freedom.

Finally, the brief argues that race-conscious admissions programs such as those practiced at Harvard are not quotas. The brief includes data on the variation in admissions of applicants of different characteristics, and then comments on the relative consistency of applicant pools from year to year: "One would expect," it notes, "that the number of redheaded students in the entering class would be relatively constant from year to year — but that hardly demonstrates the existence of a 'redhead quota.'"

In sum, the brief declares that university decisions on "which minority groups deserve favorable consideration in an individualized admissions process designed to foster...diverse representation...are necessarily and appropriately decisions to be made as a matter of educational judgment,...not as a matter of conflicting 'rights.'" Whether that view continues to prevail as a matter of law now depends on the Supreme Court. A ruling is expected as the academic year ends.