As attorneys representing the University of Texas prepare to defend the school’s affirmative action policies before the Supreme Court this fall, they face an uphill battle. Legal experts say that the Roberts Court is poised to rule against Texas’ policies aimed at increasing racial diversity.
The attorneys reporting to Texas are also indirectly defending Harvard, which originally laid the groundwork for affirmative action as it is used today.
Harvard’s efforts to increase diversity have been a model for peer institutions since 1978 when the Supreme Court cited the University’s affirmative action policy as an “illuminating example” of how race should be considered in college admissions.
Since then, Harvard’s holistic approach has been put to the test on a number of occasions. In 2003, the Court agreed to hear a case challenging affirmative action but ultimately voted to uphold the use of race as one consideration among many in the admissions process. And earlier this year, the College faced a complaint of discrimination against Asian-American applicants which was withdrawn.
Though the University’s policy has managed to endure thus far, this fall’s case—Fisher v. Texas—has Harvard worried. The University’s three-decade-long reputation as the standard bearer of increased diversity and accessibility in higher education has come under attack, and this time around the outcome is far from certain.
BECOMING A MODEL
When the Supreme Court heard Regents of the University of California v. Bakke in 1978, the Court had no precedent on affirmative action in higher education. Eager to help define the acceptable means of considering race in admission, Harvard jumped into the debate. Then-University General Counsel Daniel Steiner ’54 convinced the University of California to allow Archibald Cox ’34, a professor at Harvard Law School, to defend affirmative action to the Supreme Court on behalf of the University of California, according to former University President Derek C. Bok.
“Such a delegation of responsibility was unusual, and I’m not sure how Dan managed it,” Bok wrote in a statement to The Crimson. “Archie put together a team of outstanding constitutional lawyers to prepare the brief and then made the argument to the Court.”
The University also filed an amicus curiae brief—a formal legal expression of support—outlining and explaining Harvard’s treatment of race in admissions.
“[R]ace is considered in a flexible program designed to achieve diversity but it is only one factor weighed competitively against the number of other factors being relevant,” the brief read.
The Court was persuaded not only by Cox’s oral argument, but also by Harvard’s brief. Justice Lewis F. Powell’s majority decision cited the College’s admissions policy as the most effective and thoughtful method of considering race while remaining within the bounds of the Equal Protection Clause of 14th Amendment.
“I have no way of knowing what prompted the Court to use our admissions policy as an appendix to the majority opinion,” wrote Bok. “[B]ut I assume that...the Court felt that it embodied very well what the majority had in mind.”
L. Fred Jewett ’57, who served as dean of admissions at the time, interpreted the Court’s decision as sanctioning the College’s practices already in place.
“It’s hard to tell what it’s going to mean in the long run. There may be subsequent decisions, but we didn’t see anything in Bakke to prohibit what we’re doing,” Jewett said at the time.
Current Dean of Admissions and Financial Aid William R. Fitzsimmons ’67, who was an admissions officer at the time, declined to comment on his office’s response to the Bakke decision.