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Court's Affirmative Action Decision May Impact Harvard

By Dev A. Patel, Crimson Staff Writer

UPDATED: May 29, 2013, at 11:08 p.m.

Harvard may have to change its admissions policies depending on the Supreme Court’s ruling in a landmark affirmative action case expected to be decided in the next few weeks.

The case, Fisher v. University of Texas, centers around a white woman who claims she was denied admission to the University of Texas on the basis of her race in violation of the equal protection clause of the Fourteenth Amendment. The Justices are expected to rule on the case before the Court’s term ends the last week of June.

Because Harvard receives federal funding, a Supreme Court ruling impacting affirmative action policies might force the University to adjust to comply with federal law.

In the most extreme circumstance, if the Justices find affirmative action to be wholly unconstitutional, Harvard will be forced to dramatically transform the way it evaluates applicants.

“If the Court says that the Texas practices are a form of discrimination, it would seem hard to believe that any form of affirmative action, even the kind that Harvard uses as part of a holistic process with diversity as part of its goals, would be considered legal,” said Julie A. Reuben, a professor at Graduate School of Education.

Matthew P. Shaw, a doctoral student at the Graduate School of Education who like Harvard submitted an amicus brief on the case, pointed out that because the current holistic admissions process accepted by the Court is based off of Harvard’s model, “if affirmative action is found to be a discriminatory use of race, Harvard will have to assess it’s policies for admissions and recruitment.”

On the other extreme, if the Justices choose to rule narrowly and base their decision on Texas’s history of discrimination, this case would not affect Harvard’s policies, Reuben said.

“Harvard might not have to change anytime soon, but we might expect the Court to take another case...where the school does not have a history of de jure segregation,” she said.

Nevertheless, the Court could still rule against Texas without affecting Harvard’s policies if the Justices make a narrow decision specific to the situation of the University of Texas, a likely scenario according to Harvard Law professor Richard H. Fallon. “Everything would depend on how the opinion was written,” he said.

Following the oral arguments for the case in October and the Court’s unexpected ruling on the Affordable Care Act in 2012, many predicted the Court would rule in favor of Texas. But the outcome still remains up in the air.

“I think they’re going to overturn the policy. The question is how far they might go,” said Jeffrey R. Toobin ’82, a former Crimson sports and editorial editor.

Fallon agreed, saying, “The Texas plan is doomed.”

Shaw said that since Justice Elena Kagan, the former Dean of Harvard Law School, has recused herself from the case, it is likely that the Justices will split their vote. If that happens, the Court will defer to a lower court ruling in favor of the University of Texas.

Legal experts predict that Justice Anthony M. Kennedy will cast the deciding vote, siding either with the more liberal-leaning Justices to produce a deadlock or with the conservatives to strike down the existing affirmative action policy.

Harvard Law School professor Tomiko Brown-Nagin wrote in an email that while most commentators think Kennedy will “forbid or further restrict the use of race in admissions,” she thinks it is possible that he will support the University of Texas’s affirmative action policy “if he recognizes the historical and social significance” of the case.

“[I]t’s the first case in which the Court will rule on an affirmative action case that arises from the South or South West, where the history of discrimination in higher education is egregious and effects of discrimination linger,” she wrote.

Shaw said it is also possible that Chief Justice John G. Roberts Jr. ’76 will join Kennedy and the liberal Justices if he wants to write the majority opinion in order to narrow the impact of the decision.

Reuben said that because the issues in Fisher are so similar to those in Grutter v. Bollinger and Gratz v. Bollinger, two 2003 cases about admissions policies at the University of Michigan, she is unsure how the Justices will approach a precedentJ set so recently.

“I was frankly somewhat surprised that the Court decided to take this case so soon after the Michigan case,” she said.

—Staff writer Dev A. Patel can be reached at devpatel@college.harvard.edu. Follow him on Twitter @dev_a_patel.

This article has been revised to reflect the following correction:

CORRECTION: May 29, 2013

An earlier version of this article misspelled the first name of Matthew P. Shaw, a doctoral student at the Graduate School of Education.

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