It was nearly 40 years ago when a fractured U.S. Supreme Court was searching for an acceptable and lawful way to take race and ethnicity into account in college admissions. The court majority viewed as unconstitutional a system that would set aside a specific number of seats for one racial group or another. But justices also wanted to enable colleges to take steps they might deem necessary to attain a racially diverse student body.
How to do that? Justice Lewis F. Powell Jr. turned to the nation’s oldest college for answers.
Powell, writing the principal opinion in the 1978 landmark case Regents of the University of California v. Bakke, cited the “Harvard College program” as an exemplar of race-conscious admissions because it did not use explicit numerical quotas to achieve diversity.
“This kind of program treats each applicant as an individual in the admissions process,” Powell wrote. “The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname.”
Powell even appended a summary of Harvard’s policy to his opinion to provide a kind of template for affirmative action in higher education. Now, the court is deliberating the issue anew through a case arising from Texas. A ruling is expected soon as the court nears the end of its term.
But even though Fisher v. University of Texas at Austin centers on the public flagship in that state, Harvard’s policy on race and admissions remains very much part of the larger legal battle. Cited repeatedly in the case files, Harvard filed its own “friend of the court” brief in Fisher to support the status quo. It also is the target of a separate lawsuit pending in federal court in Massachusetts that alleges the university engages in unlawful discrimination in admissions against Asian American applicants. The university has denied that allegation.
So what is the Harvard program? Here is the appendix to Powell’s opinion:
A few key takeaways from this document:
- Diversity is about much more than race. It also is about geography, social class and other attributes of background and life experience.
- But race matters. “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer,” the document notes. “Similarly, a black student can usually bring something that a white person cannot offer.”
- There are no enrollment quotas for specific groups. But numbers matter. As the document notes: “10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States.”
- Sometimes race is a plus factor, sometimes not: “[C]ritical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it.”
Now it is worth bearing in mind a few things that are not in the document:
- Harvard is very unlike most colleges, even most selective colleges. Its wealth, tradition and global brand give it enormous recruiting power.
- That enables Harvard to cherry-pick the best students from all racial and ethnic groups to achieve the kind of diversity it desires.
- Harvard’s record on diversity is far from pristine. Its history, dating to 1636, reflects many of the norms and prejudices of the society at large. One early 20th century Harvard president, A. Lawrence Lowell, became known for efforts to restrict admission of Jewish students.
The lawsuit pending against the university in U.S. District Court in Massachusetts, filed in 2014, alleges that Harvard has engaged in a long pattern of discrimination.
“The ‘Harvard Plan’ was created specifically to be an admissions system that methodically discriminated against high-achieving Jewish applicants in the 1920s, and today it is being used in the same way to deny admissions to high-achieving Asian students,” said Edward Blum, president of Students for Fair Admissions, an Arlington, Va.-based group that is the plaintiff in the Massachusetts case.
Harvard officials reply that their approach is legally sound and has been ratified in repeated court rulings, including the Bakke case and the 2003 Supreme Court decision in Grutter v. Bollinger, which upheld affirmative action procedures at the University of Michigan law school. Race, the court has said, may be considered as one of many factors in a “holistic” review of an individual application. “Holistic,” as college-bound students know, is the way many selective colleges describe their admission process.
Harvard and many other prestigious schools have pushed the court in the Fisher case to leave that process in place. The court essentially acceded to their wishes in the first Fisher decision in 2013, sending the case back to Texas courts for further review. Now the case is back for a second ruling. Higher education leaders have urged the justices not to meddle with a system they say is essential to building a campus community with a robust variety of points of view. It would be folly, they say, to allow colleges to consider every element of an applicant’s background except race or ethnicity at a time when the nation is immersed in debates that touch on numerous racial questions.
“If an applicant believes that his or her race or ethnicity is relevant to a holistic evaluation — as do many applicants — it is difficult to see why a university should be compelled to ignore that fact,” Harvard said in a brief filed to the court in November.
The university added: “It is more apparent now than ever that maintaining a diverse student body is essential to Harvard’s goals of providing its students with the most robust educational experience possible on campus and preparing its graduates to thrive in a complex and stunningly diverse nation and world.”
Here is the racial and ethnic profile of 6,636 undergraduates at Harvard as of fall 2014, according to the Common Data Set survey: 44 percent white, 19 percent Asian American, 11 percent non-resident foreign, 10 percent Hispanic or Latino, 7 percent African American, 7 percent multiracial and 2 percent unknown.