Minow Champions Affirmative Action in Amici Brief

UPDATED: November 16, 2015, at 12:22 a.m.

Harvard Law School Dean Martha L. Minow defended race-based affirmative action for law school admissions in an amici curiae brief filed for the the upcoming U.S. Supreme Court case Fisher vs. University of Texas at Austin.

Counsel for Minow and Yale Law School Dean Robert C. Post ’69 filed the brief last week. Harvard has also submitted an amicus brief for the Fisher case offering similar pro-affirmative action argument.

Martha L. Minow
Harvard Law School Dean Martha L. Minow, shown here during Celebration 60 in 2013, defended race-based affirmative action for law school admissions in an amici curiae brief.

In 2008, Abigail N. Fisher—who is a white woman—brought a suit against the University of Texas at Austin after being denied admission alleging that Texas’s admissions department discriminates based on race. In 2013, the Supreme Court ruled that a lower court had failed to apply the proper standard of scrutiny in examining the university’s admissions policies. A circuit court then ruled in favor of the university, but Fisher appealed the verdict and the Court has decided to rehear the case, with oral arguments scheduled for December.

In 32-page brief, which was penned by their counsel, Minow and Post contend that law schools should continue to consider race as a factor in a holistic admissions process and that a ruling to the contrary would have “devastating” educational consequences.


“It is neither feasible nor desirable to ignore race in the evaluation of an applicant’s file,” the deans argue. "Later, it continues “It would be as arbitrary and misleading as ignoring an applicant’s college major or the quality of an applicant’s undergraduate training or whether English is an applicant’s first language.”

While the brief states that neither Minow nor Post represent the position of their respective law schools, its arguments supporting affirmative action are similar to those expressed by Harvard in its amicus brief from last week. Namely, Minow and Post argue that holistic admissions allow their schools to select the best students and create an effective learning environment.

“Each year, therefore, we aspire to assemble a student body in which the potential for students to learn from and with each other is maximized,” the brief reads. “This requires selecting a class in which students have different points of view, are committed to diverse aspirations, and have complementary strengths.”

This amici brief also comes as Harvard’s undergraduate admissions policies garner legal scrutiny. In a lawsuit filed last year, the anti-affirmative action group Project on Fair Representation accused the College of discriminating against Asian-American applicants in its admissions process. The suit is currently on hold, pending the Supreme Court’s decision in the Fisher case.

Neither Minow nor Post are strangers to the Supreme Court. They each served as clerks to former Supreme Court justices, and, as Minow and Post make clear in their brief, each sitting justice on the Court attended either Yale Law or Harvard Law. Elena Kagan, Minow’s predecessor as dean of the Law School, has recused herself from the case.

During her six-year tenure as dean, Minow has shaped admissions standards at the Law School to emphasize less-quantifiable aspects of a student’s application, like work experience.

—Staff writer Andrew M. Duehren can be reached at Follow him on Twitter @aduehren.

—Staff writer Daphne C. Thompson can be reached at Follow her on Twitter @daphnectho.

This article has been revised to reflect the following correction:

CORRECTION: November 16, 2015

An earlier version of this article incorrectly stated that Elena Kagan will hear Fisher v. University of Texas at Austin this December. In fact, Kagan has recused herself from the case.


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