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The University LAte Yesterday filed its amicus brief in Fisher v. University of Texas at Austin (hereafter, University of Texas), the latest in a series of high-stakes cases concerning the consideration of race in admissions to institutions of higher education. The case is scheduled for oral argument before the Supreme Court of the United States on October 10. In a statement accompanying the filing, President Drew Faust said, “A diverse student body is fundamental to the educational experience at Harvard. Bringing together students from different backgrounds and walks of life challenges students to think in different ways about themselves, their beliefs, and the world into which they will graduate.”

In preparing the brief, as it has done in prior, related cases (see below), and welcoming peer institutions—the rest of the Ivy League, the University of Chicago, Stanford, MIT, Duke, Vanderbilt, and Johns Hopkins—to join Harvard’s argument, the University aimed to underscore “why we think student-body diversity both improves the quality of education on campus and creates successful citizens in a world that is diverse and pluralistic,” said vice president and general counsel Robert Iuliano, in an interview preceding the filing. Harvard engaged Seth P. Waxman ’73,  of Wilmer Cutler Pickering Hale and Dorr, LLP, for the filing. His experience includes service both as Solicitor General of the United States from 1997 to 2001 (in which capacity he represented the federal government in cases before the Supreme Court) and as president of the University’s Board of Overseers (2010-2011)—a period when significant changes in Harvard governance and the Corporation were effected.

A separate amicus brief was filed by Harvard Law School dean Martha Minow, author of the recent In Brown’s Wake: Legacies of America’s Educational Landmark (on Brown v. Board of Education, the 1954 case on school desegregation), and Yale Law School dean Robert C. Post ’69, Ph.D. ’80, a constitutional-law scholar whose published books concern academic freedom, antidiscrimination law, and other subjects. 

 

The Harvard Briefs

Amicus briefs aim to provide a perspective on the issues the court will hear apart from the specific matters the parties to the litigation themselves necessarily cover in their detailed presentations. (See below on the details of the University of Texas case.) In their brief, Harvard and its partners argue the “profound importance of assembling a diverse student body—including racial diversity—for their educational missions.” Diversity, they argue, “encourages students to question their own assumptions, to test received truths, and to appreciate the spectacular complexity of the modern world. This larger understanding prepares Amici’s graduates to be active and engaged citizens wrestling with the pressing challenges of the day, to pursue innovation in every field of discovery, and to expand humanity’s learning and accomplishment.”

The Supreme Court’s decision in this case, even though it concerns a state university’s admissions process, could affect Harvard and other private institutions’ admissions policies because Title VI of the Civil Rights Act of 1964 “forbids institutions that receive federal funds from engaging in racial ‘discrimination.’” The amicus brief’s authors therefore urge the Supreme Court, consistent with prior rulings, “to continue to allow educational institutions to structure admissions programs that take account of race and ethnicity as single factors within a highly individualized, holistic review process.” Such programs consider many factors, including whether an applicant is “the first in the family to attend college,…comes from a disadvantaged background, and whether languages other than English are spoken in the home.”

The institutional aim, explain the brief’s authors, is to create an optimal learning environment, “a class greater than the sum of its parts.” The brief makes clear that this goal in an educational context is distinct from “public contracting and employment contexts, where race was the predominant consideration in measures ostensibly taken to remedy historical discrimination or to avoid claims of discrimination.”

Because race continues to play a role in society—the brief notes the “persistence of segregated schools and communities”—some students are inevitably affected or even shaped by it, note the authors. Given that, the brief argues, “If an applicant thinks his or her race or ethnicity is relevant to a holistic evaluation—which would hardly be surprising given that race remains a salient social factor—it is difficult to see how a university could blind itself to that factor while also gaining insight into each applicant and building a class that is more than the sum of its parts…In view of that reality…it would be extraordinary to conclude at this time that race is the single characteristic that universities may not consider in composing a student body that is diverse and excellent in many dimensions, not just academically.”

The brief filed by Harvard Law School dean Martha Minow and by Robert Post, her counterpart at Yale Law School, expands on many of the same themes.

To enable law schools such as Harvard and Yale to select “the most meritorious applicants, it is necessary to evaluate intangible aspects of their character,” they write. “This same evaluation process is indispensable to our efforts to create a rich and dynamic learning environment. We use individualized assessments to assemble a broadly diverse student body that can robustly debate ideas inside and outside the classroom in ways that are essential for legal education.” They note that a “diverse student body is also of great pragmatic value in preparing students for the practice of law in today’s increasingly globalized and heterogeneous economic world.” Because race is for some applicants “a salient aspect of identity,” barring its consideration would leave educational institutions “unable to conduct holistic evaluations.”

 “The educational environment of Harvard and Yale Law Schools is immeasurably enhanced because we select students so as to facilitate hard discussions of controversial topics,” they continue.

We structure our admissions processes to maximize the diversity of views and experiences that our students will encounter. It almost certainly would be mutually beneficial for students raised in Catholic schools and Yeshivas to encounter one another, because each will come away with an enlarged perspective on the law and on themselves. A national leader of the American bar ought to know what life looks like from the perspective of those who have grown up in the South, in South Dakota, in Harlem, or in Delhi. The racial backgrounds and experiences of our students are without doubt relevant to this educational diversity.

Noting the extraordinary contribution of law schools generally to the ranks of national leaders by quoting from the case of Grutter v. Bollinger (“Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives.”), they further point out that “every current member of [the Supreme Court] attended either Harvard Law School or Yale Law School.”

In so noting, Minow and Post underscore the importance of preserving the ability to capture diversity in all its forms as part of the admissions process at law schools:

Were we to be compelled to ignore race, we would be prevented from evaluating all that racial identity might mean to any individual person. To some applicants, race may not matter much at all. To others, however, it may be urgently salient. We do not prejudge this issue. We affirm only that enforced colorblindness will both undermine the capacity of our admissions processes fully to assess many applicants and severely injure our efforts to ensure that our classrooms and study groups will generate the robust debate that is surely essential to much legal and policy analysis.

On the larger, national effect that a ruling barring consideration of race might have, Minow and Post conclude:

The ultimate effect of purging admissions processes of all reference to race will not be a colorblind Constitution; it will be a Constitution that disadvantages on the basis of race. The effort to cleanse admissions processes of all mention of race would also almost assuredly invite lawsuits from disappointed applicants who might claim that they had not been admitted because race had been inappropriately considered. Such suits will be difficult and costly to defend. They will thus create perverse incentives for schools to return to the legally safe harbor of admitting students entirely ‘on the numbers.’ It is hard to imagine a less attractive outcome for American higher education.

 

The University of Texas Case

It is uncertain why the Supreme Court decided to hear the University of Texas case on appeal from the Fifth Circuit Court of Appeals; the university’s position had been upheld there and in a lower court, and there were no conflicting appellate-court opinions on race-conscious admissions. In 2003, when the court last took up these issues, that was not the case; then, the court ruled 5-4 in Grutter v. Bollinger that the University of Michigan’s law school could consider race as a factor in evaluating individual applicants for admission (and ruled 6-3, in a companion case, Gratz v. Bollinger, that Michigan’s undergraduate admissions policy was unacceptable, in that it automatically awarded bonus points to applicants from certain minority groups).

It is notable that the court’s composition has changed, with the retirement of Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter. She was succeeded by Justice Samuel A. Alito Jr., who is thought to be less supportive of race-based affirmative action. Perhaps of particular moment, the newest justice, Elena Kagan, who was previously Solicitor General (2009-2010) and dean of Harvard Law School (2003-2009), has recused herself from Supreme Court consideration of the University of Texas case; as Solicitor General, she was involved in the Obama administration’s Fifth Circuit brief.

The University of Texas (UT), that state’s flagship public institution, admits most of its student body under the “top-10-percent” rule: graduates of Texas high schools who rank in the top 10 percent of their high-school classes are granted admission. This process, legislated in 1998 following the 1996 decision in Hopwood v. Texas (which struck down a UT admissions process that considered race), was meant to “increase minority admissions given the loss of race-conscious admissions,” according to the university’s brief in the current case. (This rule, of course, gives total weight to class rank, but ignores other criteria—difficulty of the high-school course of study, extracurricular activities, etc.—and, as the brief notes, achieves racial diversity principally because “of the fact that Texas public high schools remain highly segregated in regions of the state,” such as the largely Hispanic student bodies in the Rio Grande Valley and the largely African-American student populations in the Dallas and Houston school districts.)

For remaining applicants (20 to 40 percent of the class), the university in 2004 devised a complex process that compares an academic index (AI, reflecting class rank, standardized test scores, and high-school curriculum) and a personal achievement index (PAI). The PAI, according to the brief, is based on two essays and a personal achievement score (PAS). The essays are read and scored on a race-blind basis. The PAS score is based on holistic consideration of six equally-weighted factors: leadership potential, extracurricular activities, honors and awards, work experience, community service, and special circumstances; the latter category, in turn, has seven further attributes, including socioeconomic considerations and, since 2005, race. The AI and PAI scores (embedding the PAS scores) are arrayed on a grid, and admissions to each school or program are made in a mechanical fashion across cells on the grid—a decision in which students are admitted race-blind, in groups.

The university argues that this process is sufficiently specific and individual in considering candidates to satisfy the law governing consideration of race in admissions; that it contributes to composing a diverse student body in ways the 10-percent rule cannot, and that the educational and social benefits of such diversity are compellingly important; and that, moreover, formulaic admissions rules do not achieve those educational benefits because they do not consider the diverse characteristics of candidates within racial groups (as an individualized, holistic review of candidates does), and because the university continues to struggle to achieve meaningful diversity within its classes—most of which remain relatively undiverse, thus falling short of the goal of exposing students to differences of view, life experience, and so on.

Abigail Noel Fisher applied for admission to the university’s fall 2008 class in business administration or liberal arts. She did not fall under the 10-percent rule, and so was evaluated under the AI and PAI criteria. She was not admitted, nor did she gain admission to the summer program (which offers provisional admission to some applicants). She subsequently sued, claiming that she had been improperly denied admission—and that the university’s consideration of race was impermissible. As noted, her case did not prevail in lower courts, and is now on appeal to the Supreme Court.

 

Diversity Background and University Involvement

Bakke. The foundational case in this field is Regents of the University of California v. Bakke (Bakke), decided in 1978—a formal challenge to the Civil Rights Act of 1964. Justice Lewis Powell’s deciding opinion condemned numerical set-asides or quota-based systems of admission, but found it permissible to take race into account as one of several factors—so long as the practice was necessary to promote a substantial educational interest and treated applicants as individuals (he famously cited Harvard’s holistic admissions process as a way to do so).

As noted, the Hopwood case challenged some systems of taking race into account in admissions. The Grutter ruling appeared to give majority support for Powell’s (previously solitary) view that there was a “compelling state interest” in racial diversity. In Justice O’Connor’s 2003 language:

Today, we hold that the Law School has a compelling interest in attaining a diverse student body.

            …The Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decision to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.

The University of Texas case could hypothetically result in a narrow affirmation or denial of that institution’s specific admission procedures; could, more broadly, overturn those procedures in light of a seemingly “race-neutral” process like the 10-percent admissions rule; or could, broadly, overturn the Bakke and Grutter decisions that found a compelling need for student-body diversity. Harvard has strongly favored admissions procedures that allow consideration of race in the context of evaluating applications individually, and has opposed processes like the 10-percent rule, which would be difficult or impossible to use in the context of a national and international applicant pool and student body, and which would hamstring admissions officers in considering applicants’ talents and interests in ways not measured solely by grade-point averages or standardized tests.

The Rudenstine Era. President Neil L. Rudenstine was a vigorous proponent of student diversity, devoting his President’s Report, 1993-1995: Diversity and Learning (excerpted here), to the subject. He took public exception to the Hopwood ruling, saying, “I respectfully and strongly disagree.” Diversity among students, he said, makes possible “the kind of understanding that can come only when we are willing to test our ideas and arguments in the company of people with very different perspectives”—the “remarkable variety of men and women whom we might not otherwise have the opportunity to learn from or even to meet.” Fueled by the desire to narrow “the real gaps that continue to exist among many people of different races,” he then enlisted other university presidents to support affirmative action publicly.

Bowen and Bok on Diversity. Rudenstine’s predecessor, Derek C. Bok, and Princeton president emeritus William G. Bowen, undertook a searching, empirical study of the effects of student diversity in their 1998 book, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (reviewed here). Bowen and coauthors summarized those findings in a subsequent book, Equity and Excellence in American Higher Education (2005, after the Grutter decision), concluding (among other points):

  • The presumed educational benefits of diversity have been strongly affirmed.
  • Race-sensitive admissions policies have increased substantially the number of well-prepared minority students who have gone on to assume positions of leadership in the professions, business, academia, the military, government, and every other sector of American life—thereby reducing somewhat the continuing disparity in access to power and opportunity that is related to race in America.
  • The costs of race-sensitive admission policies have been modest and are well justified by the benefits; most of the alleged negative effects of race-sensitive admissions are, on examination, seen to be minor or non-existent.

Summers and Harvard’s 2003 Brief. On February 17, 2003, the University filed an amicus brief, preceding the Supreme Court’s April 1 oral arguments in the University of Michigan cases. (Brown, Chicago, Dartmouth, Duke, Penn, Princeton, Yale, and Harvard joined in the filing.) President Lawrence H. Summers—who had been seen at the outset of his administration as skeptical of affirmative action— issued a statement emphasizing 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.

The 2012 brief echoes these arguments, noting that despite the hope that one day race may not matter, “race continues to shape the backgrounds, perspectives, and experiences of many in our society, including Amici’s students.”

In addition to stressing the precedent established in Bakke, the 2003 brief argued 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.

The 2003 brief also stated the case against applying percentage-based admissions rules to selective national colleges and universities and graduate schools (as is the case in the public California, Florida, and Texas systems). It maintained that 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 argued that race-conscious admissions programs such as those practiced at Harvard are not quotas. The brief included data on the variation in admissions of applicants of different characteristics, and then commented on the relative consistency of applicant pools from year to year: “One would expect 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 declared 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.’”

In Prospect. Harvard’s views in 2003 turned out, in Grutter, to be on the winning side. Justice O’Connor cited Justice Powell’s Bakke language extensively, again citing Harvard admissions practices as a worthy model. Whether the same logic holds in the University of Texas case depends on the arguments this October and the justices’ subsequent deliberations.