Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 421

DECLARATION re 412 MOTION for Summary Judgment by Students for Fair Admissions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110, # 111 Exhibit 111, # 112 Exhibit 112, # 113 Exhibit 113, # 114 Exhibit 114, # 115 Exhibit 115, # 116 Exhibit 116, # 117 Exhibit 117, # 118 Exhibit 118, # 119 Exhibit 119, # 120 Exhibit 120, # 121 Exhibit 121, # 122 Exhibit 122, # 123 Exhibit 123, # 124 Exhibit 124, # 125 Exhibit 125, # 126 Exhibit 126, # 127 Exhibit 127, # 128 Exhibit 128, # 129 Exhibit 129, # 130 Exhibit 130, # 131 Exhibit 131, # 132 Exhibit 132, # 133 Exhibit 133, # 134 Exhibit 134, # 135 Exhibit 135, # 136 Exhibit 136, # 137 Exhibit 137, # 138 Exhibit 138, # 139 Exhibit 139, # 140 Exhibit 140, # 141 Exhibit 141, # 142 Exhibit 142, # 143 Exhibit 143, # 144 Exhibit 144, # 145 Exhibit 145, # 146 Exhibit 146, # 147 Exhibit 147, # 148 Exhibit 148, # 149 Exhibit 149, # 150 Exhibit 150, # 151 Exhibit 151, # 152 Exhibit 152, # 153 Exhibit 153, # 154 Exhibit 154, # 155 Exhibit 155, # 156 Exhibit 156, # 157 Exhibit 157, # 158 Exhibit 158, # 159 Exhibit 159, # 160 Exhibit 160, # 161 Exhibit 161, # 162 Exhibit 162, # 163 Exhibit 163, # 164 Exhibit 164, # 165 Exhibit 165, # 166 Exhibit 166, # 167 Exhibit 167, # 168 Exhibit 168, # 169 Exhibit 169, # 170 Exhibit 170, # 171 Exhibit 171, # 172 Exhibit 172, # 173 Exhibit 173, # 174 Exhibit 174, # 175 Exhibit 175, # 176 Exhibit 176, # 177 Exhibit 177, # 178 Exhibit 178, # 179 Exhibit 179, # 180 Exhibit 180, # 181 Exhibit 181, # 182 Exhibit 182, # 183 Exhibit 183, # 184 Exhibit 184, # 185 Exhibit 185, # 186 Exhibit 186, # 187 Exhibit 187, # 188 Exhibit 188, # 189 Exhibit 189, # 190 Exhibit 190, # 191 Exhibit 191, # 192 Exhibit 192, # 193 Exhibit 193, # 194 Exhibit 194, # 195 Exhibit 195, # 196 Exhibit 196, # 197 Exhibit 197, # 198 Exhibit 198, # 199 Exhibit 199, # 200 Exhibit 200, # 201 Exhibit 201, # 202 Exhibit 202, # 203 Exhibit 203, # 204 Exhibit 204, # 205 Exhibit 205, # 206 Exhibit 206, # 207 Exhibit 207, # 208 Exhibit 208, # 209 Exhibit 209, # 210 Exhibit 210, # 211 Exhibit 211, # 212 Exhibit 212, # 213 Exhibit 213, # 214 Exhibit 214, # 215 Exhibit 215, # 216 Exhibit 216, # 217 Exhibit 217, # 218 Exhibit 218, # 219 Exhibit 219, # 220 Exhibit 220, # 221 Exhibit 221, # 222 Exhibit 222, # 223 Exhibit 223, # 224 Exhibit 224, # 225 Exhibit 225, # 226 Exhibit 226, # 227 Exhibit 227, # 228 Exhibit 228, # 229 Exhibit 229, # 230 Exhibit 230, # 231 Exhibit 231, # 232 Exhibit 232, # 233 Exhibit 233, # 234 Exhibit 234, # 235 Exhibit 235, # 236 Exhibit 236, # 237 Exhibit 237, # 238 Exhibit 238, # 239 Exhibit 239, # 240 Exhibit 240, # 241 Exhibit 241, # 242 Exhibit 242, # 243 Exhibit 243, # 244 Exhibit 244, # 245 Exhibit 245, # 246 Exhibit 246, # 247 Exhibit 247, # 248 Exhibit 248, # 249 Exhibit 249, # 250 Exhibit 250, # 251 Exhibit 251, # 252 Exhibit 252, # 253 Exhibit 253, # 254 Exhibit 254, # 255 Exhibit 255, # 256 Exhibit 256, # 257 Exhibit 257, # 258 Exhibit 258, # 259 Exhibit 259, # 260 Exhibit 260, # 261 Exhibit 261)(Consovoy, William) (Additional attachment(s) added on 6/18/2018: # 262 Unredacted version of Declaration, # 263 Exhibit 1 (filed under seal), # 264 Exhibit 2 (filed under seal), # 265 Exhibit 5 (filed under seal), # 266 Exhibit 6 (filed under seal), # 267 Exhibit 7 (filed under seal), # 268 Exhibit 8 (filed under seal), # 269 Exhibit 9 (filed under seal), # 270 Exhibit 10 (filed under seal)) (Montes, Mariliz). (Additional attachment(s) added on 6/18/2018: # 271 Exhibit 11 (filed under seal), # 272 Exhibit 12(filed under seal), # 273 Exhibit 13 (filed under seal), # 274 Exhibit 14 (filed under seal), # 275 Exhibit 16 (filed under seal), # 276 Exhibit 17(filed under seal), # 277 Exhibit 18(filed under seal), # 278 Exhibit 19 (filed under seal), # 279 Exhibit 20 (filed under seal), # 280 Exhibit 22 (filed under seal), # 281 Exhibit 23 (filed under seal), # 282 Exhibit 24 (filed under seal), # 283 Exhibit 25(filed under seal), # 284 Exhibit 26 (filed under seal), # 285 Exhibit 28 (filed under seal), # 286 Exhibit 29 (filed under seal), # 287 Exhibit 31 (filed under seal), # 288 Exhibit 32 (filed under seal), # 289 Exhibit 33 (filed under seal), # 290 Exhibit 35 (filed under seal), # 291 Exhibit 36 (filed under seal), # 292 Exhibit 37 (filed under seal), # 293 Exhibit 38(filed under seal), # 294 Exhibit 39 (filed under seal), # 295 Exhibit 40 (filed under seal), # 296 Exhibit 41, # 297 Exhibit 42 (filed under seal), # 298 Exhibit 43 (filed under seal), # 299 Exhibit 44(filed under seal), # 300 Exhibit 45 (filed under seal), # 301 Exhibit 46 (filed under seal), # 302 Exhibit 47 (filed under seal), # 303 Exhibit 48 (filed under seal), # 304 Exhibit 51 (filed under seal)) (Montes, Mariliz).

EXHIBIT 257

AFFIRMATIVE ACTION AND THE HARVARD
COLLEGE DIVERSITY-DISCRETION MODEL:
PARADIGM OR PRETEXT?
ALAN

M.

DERSHOWITZ -

LAURA HANFT*
INTRODUCTION

The Supreme Court's long-awaited decision in Regents of the
University of California v. Bakke 1 has spawned an endless stream of
commentary, criticism, and analysis, as college administrators,
lawyers, and legislators attempt to decipher its 150 pages of studied
2
ambiguity.
The quest for the definitive interpretation of this effort by nine
men to confront a set of perplexing social, moral, legal, and political
issues within the narrow confines of a contrived judicial case and controversy is a futile one. 3 It would be a tragedy if the important debate over the role of race-specific affirmative action programs were to
be deflected into such a quest.
This article does not attempt a systematic interpretation of the
Justices' opinions, either individually or collectively. Nor does it purport to answer the fundamental constitutional question left open by
the court: To what extent and under what circumstances may a state
consider race qua race in the allocation of benefits among its citizens?

Its purpose is to raise questions about some of the implications of
Bakke and more specifically about Mr. Justice Powell's selection of
the Harvard College admissions process as a model of fairness and
constitutionality.
* Mr. Dershowitz is Professor of Law at Harvard, where he has never served ol any
admissions committee. He was of counsel on the amicus curiae brief in Bakke submitted by The
American Jewish Congress, American Jewish Committee, and several other organizations. Ms.
Hanft is a student at Harvard Law School and was a college admissions officer elsewhere.
1 438 U.S. 265 (1978).
2 Since Bakke was decided, in June 1978, there have been many law review commentaries
analyzing the opinion. Among the more notable are several symposia of articles on issues raised
by the Bakke decision. E.g., A Symposium: Regents of the University of California v. Bakke, 67
CALIF. L. REv. 1 (1979); Bakke Symposium: Civil Rights Perspectives, 14 HARV. C.R.-C.L. L.
REV. 1 (1979); Symposium: Equality in America: A Color-Blind Constitution? 21 How. L.J. 481
(1978).
3 See Brief of Amici Curiae for the National Urban League et al., Regents of the Univ. of
Cal. v. Bakke, 438 U.S. 265 (1978), arguing in opposition to grant of certiorari that petitioners
attempted to stipulate to jurisdiction, id. at 13-19, and claiming that "the University's primary
aim was to 'set the stage' for a judicial determination," id. at 16 n.10, and including correspondence between Bakke and Peter Storandt, Assistant to the Dean of Student Affairs/Admissions
at the University of California at Davis, suggesting that Bakke apply a second time and that he
consider legal action if not accepted, id. at app. A.

CARDOZO LAW REVIEW

[Vol. 1:379

Sometimes Supreme Court decisions are far more important for
what they could have done, but did not do, than for what they actually did. Bakke is such a case. Numerous briefs urged the Justices to
legitimate racial quotas. 4 Other briefs urged them to strike down all
dirmative action programs. 5 The Court collectively-though not all
of the Justices individually-steered a middle course: it did not
legitimate explicit racial quotas that disqualify certain individuals-on
the basis of their race, religion, or ethnicity-from competing for a
reserved number of places in a university class. Nor did it strike
down affirmative action programs in which the minority racial status
6
of a candidate is given some positive weight in the selection process.
The delphic words of the Justices' opinions-though they may
not contain any more wisdom than the millions of other words written
about affirmative action 7 -stand as the only authoritative judicial
4 Of the more than 50 briefs submitted amicus curiae in Bakke, those urging the legitimation of quotas, or as they are more innocuously termed, "targets," included the briefs of:
Cleveland State University Chapter of the Black American Law Students Association; The Society of American Law Teachers; Asian American Bar Association of the Greater Bay Area; Fair
Employment Practice Commission of the State of California; NAACP Legal Defense and Educational Fund; National Association of Minority Contractors et al.; National Fund for Minority
Engineering Students; Black Law Students Union of Yale University Law School; Lawyers
Committee for Civil Rights Under Law; NAACP; National Association of Churches of Christ et
al.; Council on Legal Education Opportunity; Antioch School of Law; Legal Services Corporation; Native American Law Students of the University of California at Davis et al.; Mexican
American Legal Defense and Educational Fund et al.; and the American Association of University Professors.
5 Among the groups submitting briefs opposing all special programs for designated
minorities were: Queens Jewish Community Council et al.; Order of Sons of Italy in America;
Young Americans for Freedom; Anti-Defamation League of B'nai B'rith; Pacific Legal Foundation; Fraternal Order of Police et al.; Committee on Academic Nondiscrimination and Integrity
et al.
6 The Supreme Court, moreover, is not obliged to decide each of the sticky and divisive
issues generated by its plethora of ambiguous phrases and footnotes. Among the most important
powers possessed by the Supreme Court is the power to decide not to decide. This doctrine is
most clearly articulated in Ashwander v. TVA, 297 U.S. 288, 346-49 (1936) (Brandeis, J., concurring). See also A. BICKEL, THE LEAST DANGEROUS BRANCH 69-72, 111-98 (1962). By the
exercise of its discretion to review or not to review the decision of lower courts, the Supreme
Court can allow these lower courts-both state and federal-to muddle through with inconsistent decisions until the Justices deem the occasion ripe for yet another foray into the admissions
thicket. See id. at 126-27.
1 See, e.g., 438 U.S. at 288 n.25, 315 n.50 (citing Ely, The Constitutionality of Reverse
Racial Discrimination, 41 U. CHI. L. REV. 723 (1974); Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 COLUM. L. REV. 559 (1975); Kaplan,
Equal Justice in an Unequal World: Equality for the Negro, 61 Nw. U.L. REV. 363 (1966);
Karst & Horowitz, Affirnative Action and Equal Protection, 60 VA. L. REV. 955 (1974); O'Neil
Racial Preference and Higher Education: The Larger Context, 60 VA. L. REV. 925 (1974);
Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial
Minorities, 1974 Sup. CT. REV. 1; Redish, Preferential Law School Admissions and the Equal
Protection Clause: An Analysis of the Competing Arguments, 22 U.C.L.A. L. REV. 343 (1974);

1979]

AFFIRMATIVE ACTION

guideline available to university officials and will inevitably have a
significant impact on the course of university admissions for the foreseeable fiture.8 These words will be all the more important if other
guidance is not forthcoming from the Court. 9
Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role,
42 U. CHI. L. REV. 653 (1975); Sedler, Racial Preference, Reality and the Constitution: Bakke
v. Regents of the University of California, 17 SANTA CLARA L. REV. 329 (1977); Seeburger, A
Heuristic Argument Against Preferential Admissions, 39 U. PITT. L. REV. 285 (1977)).
8 Although various guidelines and interpretations of the Bakke decision have appeared
since June 1978, the task of admissions officers has not been notably clarified. The Office for
Civil Rights of the Department of Health, Education and Welfare, for instance, recently published its own guideline for university officials. HEW, Nondiscrimination in Federally Assisted
Programs; Title VI of the Civil Rights Act of 1964; Policy Interpretation, 44 Fed. Reg. 58,509
(1979) [hereinafter cited as Policy Interpretation]. This guideline, which was sent to the presidents of 3000 colleges, outlines permissible techniques that institutions of higher education may
use to comply with the Bakke decision while continuing and expanding affirmative action programs under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4 (1974).
The policy interpretation may, however, exacerbate the confusion. For example, while it notes
quite correctly that "Bakke prohibits an institution from setting aside a fixed number of places
for minority students," Policy Interpretation, supra, at 58,510, the interpretation nevertheless
allows an educational institution to "[e]stablish and pursue numerical goals to achieve the racial
and ethnic composition of the student body it seeks," id. at 58,511. The interpretation does not
indicate how such numerical goals are to be actively pursued without producing, in practice,
precisely the kind of racial set-aside that was declared unconstitutional in Bakke, 438 U.S. at
315-20. See H.E.W. Offers Guide on Bakke Decision, N.Y. Times, Oct..11, 1979, at A15, col. 6.
Similarly, the HEW guidelines approve the use of goals and affirmative programs based on
race "to overcome the effects of conditions that have resulted in limited participation by persons
of a particular race." Policy Interpretation, supra, at.58,511. In Bakke, Justice Powell explicitly
found that neither the goal of increasing the numbers of traditionally disfavored minorities in
medical schools nor the goal of countering the effects of societal discrimination was compelling
enough to justify the use of race-based admissions. 438 U.S. at 305-10.
A recent study by the Anti-Defamation League of B'nai B'rith provides further evidence
that the Bakke mandate may be widely misunderstood and misinterpreted. Answers received by
June 1979 from 272 professional schools to a questionnaire about admissions policy and practice
revealed that:
Sixteen schools maintain facially discriminatory admissions procedures based on
ethnic/racial classifications clearly in violation of Bakke. Another twenty schools
maintain admissions procedures that are visibly suspect with respect to the ethnic/
racial classifications made illegal by Bakke. These procedures range from fixed
quotas and goals (or their numerical equivalents) to a stated special consideration or
special preference policy for minority groups.
A Study of Post-Bakke Admissions Policies in Medical, Dental & Law Schools Throughout the
United States, RIGHTS, Summer 1979, at 1 (Rights is a periodic report of the Anti-Defamation
League of B'nai B'rith, 823 United Nations Plaza, New York, N.Y. 10017) [hereinafter cited as
ADL Study].
One conclusion to be drawn from these reports is that the impact of the Bakke decision on
admissions practice may be less than anticipated. Universities may either ignore it entirely, or,
with the encouragement of HEW, ignore part of its substance by pursuing "numerical goals"
and other race-based admissions procedures.
9 Last term, in United Steelworkers v. Weber, 99 S. Ct. 2721 (1979), the Supreme Court
interpreted the legislative history and context of § 7 03 (a) and (d) of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a)(d) (1974), to permit a voluntary affirmative action plan that
was collectively bargained by an employer and a union to reserve for black employees 50% of

CARDOZO LAW REVIEW

[Vol. 1:379

Perceived through a morass of rhetoric, citations, footnotes, and
dicta, the bottom line seems to be that a five-man majority of the
Supreme Court has held-for a variety of irreconcilable reasonsthat the type of admissions program used by Davis Medical School of
the University of California does not pass constitutional and/or statutory muster, while the type used by Harvard College does. Justice
Powell-whose opinion contained the judgment of the Courtexpressly singled out the Harvard College admissions system for approval.1 0 He quoted extensively from the description of the Harvard
program contained in the amici curiae brief submitted by Harvard,
Columbia, Stanford, and Pennsylvania Universities " and concluded:
In such an admissions program, race or ethnic background may be
deemed a "plus" in a particular applicant's file, yet it does not
insulate the individual from comparison with all other candidates
for the available seats ....

In short, an admissions program oper-

ated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each
applicant, and to place them on the same footing for consideration,
12
although not necessarily according them the same weight.
Thus, instead of attempting to define the factors that would satisfy the
constitutional and statutory standards, Justice Powell apparently
found it easier to refer to an existing system. 13

the openings in an in-plant training program. In its opinion the Court emphasized the differences between Title VII (relating to employment and passed under commerce clause powers)
and Title VI, at issue in Bakke (relating to education and passed as part of the government's
power to regulate the use of federal funds) noting that the two "cannot be read in pari materia,"
99 S. Ct. at 2729 n.6. The Weber decision was thus explicitly narrow in scope and its application restricted to the employment context. As such, it is substantially irrelevant to the issues of
educational policy and statutory interpretation in Bakke.
10Section V-A of Powell's opinion focuses on the "illuminating example" of Harvard College. 438 U.S. at 315-19.
1
1 Id.at 316-17 (quoting Brief of Columbia University, Harvard University, Stanford University and the University of Pennsylvania as Amici Curiae [hereinafter cited as Universities
Amici Curiae Brief]. A four-page description of the Harvard College admissions process was
included as an appendix to both the Powell opinion, 438 U.S. at 321 app., and the amici curiae
brief submitted by the four universities, Universities Amici Curiae Brief, supra, at app.
12 438 U.S. at 317 (footnote omitted).
"3The Harvard diversity model rejects the notion of quotas in favor of a selection process
that evaluates each applicant individually on the basis of his or her unique qualities. One would
expect the percentage of specified minority enrollees produced by such a system to vacillate
widely from year to year, reflecting changes in each year's applicant pool.
It is questionable, however, whether Harvard University follows in practice the dictates of
its own "diversity-discretion model." An article in the undergraduate newspaper reported these
percentages for black students:

1979]

AFFIRMATIVE ACTION

383

It is the thesis of this article that Justice Powell erred seriously
in selecting the Harvard College admissions system as the guidepost
of constitutionality. To begin with, there are three technical reasons
why Justice Powell blundered in selecting Harvard College as a
model for other colleges and professional schools. First, an admissions
system developed in the context of Harvard's unique abundance of
wealth and enormous pool of applicants will necessarily have only limited applicability at institutions with lesser resources.14 Second, an
undergraduateadmissions system is hardly the appropriate model for

Class

Percentage of Black Students

1963
1969
1972
1973
1974
1975
1976
1977
1978

1
3
3
7
7
7
7
7
7

1979
1980
1981

7
8
7

Melnick,, Minority Recruitment at Harvard: Still a Ways to Go, Harvard Crimson, Jan. 23,
1978, at 2, col. 1, at 3, cols. 1-4.

The inference is inescapable that a decision to increase the number of black students was
made in the late sixties (the class of 1973 started college in 1969). Since that time, the percentage of black students-with the single exception of the class of '80-has not varied even one
percentage point in either direction.
In the face of such stubbornly constant percentages, it is difficult to avoid the inference that
some sort of implicit racial "target" or "quota" may be operating in the admissions process.
14 Over the last sixty years, Harvard has developed and refined an admissions model that
capitalizes on its advantages. See P. Feldman, Recruiting an Elite: Admission to Harvard College (1975) (unpublished Ph.D. dissertation in Harvard archives). Because almost all of Harvard's thousands of applicants present uniformly high academic credentials, discrimination
among applicants can be made on some basis other than a straightforward selection of the most
academically qualified. And because Harvard is the wealthiest school in the world, it need not
accept most of its financially able applicants in order to assure the university's economic stability. Free of qualitative and economic constraints that are essential elsewhere, Harvard has the
luxury of developing an admissions philosophy that emphasizes less essential criteria such as
diversity, personal talents, and character traits.
Institutions with severely limited financial resources and inadequate numbers of applicants
will continue to make their decisions with proportionately less selectivity, and such schools will
not find much of practical value in Harvard's approach. Although every admissions office in the
country will now paraphrase and purport to follow the Bakke mandate, most admissions decisions will continue to be made on the basis of the same limited spectrum of factors that have

informed them in the past. See ADL Study, supra note 8 (documenting universities' unresponsiveness to Bakke).

CARDOZO LAW REVIEW

[Vol. 1:379

professional or graduate schools. 15 Third, Harvard University is a
private institution whose legal obligation not to discriminate derives
from statutes such as Title VI of the 1964 Civil Rights Act; 16 the

15 Justice Powell's Harvard analogy is flawed because the diversity-discretion system described at length by Powell is simply not a description of the selection process at Harvard
Medical School, Harvard Law School, or, in fact, at any of Harvard's graduate programs. Instead, it describes the admissions model used to admit freshmen to Harvard College and ignores completely the enormous and crucially relevant differences between the admissions
policies of elite professional schools and those of elite undergraduate colleges.
Some colleges purport to seek diversity among the musical and athletic talents, subject
matter interests, backgrounds, and genealogies of their students (though the motive behind this
quest for diversity is by no means "without controvery"). Universities Amici Curiae Brief, supra
note 11, at 12. Law schools and medical schools have traditionally paid far less attention to such
diversifying considerations, with the possible exception of geography. Indeed, the Harvard Law
School in particular has prided itself over the years-and has been praised-for its almost
single-minded commitment to a meritocratic admissions policy.
Although Justice Powell may not be expected to be familiar with the ins and outs of university admissions, the same excuse cannot be made for the attorneys who wrote the amici brief on
behalf of Harvard, Columbia, Pennsylvania and Stanford Universities, from which Powell quotes
so extensively. See note 11 supra & accompanying text. These attorneys included the deans of
the law schools at each of these universities, acting in their "individual" capacities as lawyers.
See Universities Amici Curiae Brief, supra note 11, at 2 n.1.
In Section I of the brief, which argues that "the Inclusion of Qualified Minority Group
Members in a Student Body Serves Important Educational Objectives," id. at 11-14, the gen-"
eral discussion of factors which contribute to student diversity is followed by the conclusion that
"[a]cademic ability has not, therefore, been the sole criterion for selecting students at our institutions." Id. at 12. This conclusorv statement seems to imply that the principle of diversity is
actively applied in professional school admissions as well as in freshman admissions. Yet the
appendix describing Harvard College admissions, relied on in the body of the brief as the
source for all conclusions about Harvard's successful diversity-seeking program, describes only
freshman admissions. Id.at app. Also, the seemingly inclusive footnote to the text pointing out
that the Harvard description "applies generally to the selection of undergraduates at the other
three amici institutions," id. at 12 n.5, actually serves the purpose of excluding all graduate and
professional schools fn'om the ambit of the Harvard description. Another footnote observes with
apparently studied vagueness that "some of our professional schools give great weight to predicted academic performance and hence relatively less weight than our undergraduate and other
professional schools to the other factors mentioned here." Id. at 12 n.4. In fact, a close reading
of the brief discloses that the actual factors relied on at Harvard in the medical school admissions process, presumably at issue in the Bakke case, are never described specifically at all.
Thus, although the Universities Amici Curiae Brief contained the technically necessary
caveats disclosing that there are differences between professional and undergraduate admissions
policies, id. at 11-12, these differences were made to seem like mere matters of degree
when-in fact-they are plainly matters of kind.
It is fair to ask why law school professors and deans, undoubtedly familiar with the critical
differences between graduate and undergraduate admissions, nevertheless chose to highlight
the admissions policy of an undergraduate college in cases involving law school and medical
school admissions programs. The most probable answer, in light of the obvious differences between the two, is that the policies of their own professional schools were not described because
they would probably not have supported the diversity argument the brief-writers were seeking
to make.
16 42 U.S.C. §§ 2000d to 2000d-4 (1974).

1979]

AFFIRMATIVE ACTION

Davis Medical School, on the other hand, is a state institution governed directly by the United States Constitution. 17 But Mr. Justice
Powell's focus on the Harvard College admissions process was worse
than a simple blunder. By approving the Harvard College systemthe paradigm of the "diversity-discretion model" of admissions-Mr.
Justice Powell legitimated an admissions process that is inherently
capable of gross abuse and that, as we will demonstrate, has in fact
been deliberately manipulated for the specific purpose of perpetuating
religious and ethnic discrimination in college admissions.
Indeed, the historical evidence points inexorably to the conclusion that the current Harvard College admissions system was born
out of one of the most shameful episodes in the history of American
higher education in general, and of Harvard College in particular. We
will attempt to demonstrate that, aside from the origins and past
abuses of the Harvard College admissions model, its present use-for
the ostensible purpose of enhancing the educational diversity of the
student body-serves largely as a pretext for the commendable, but
legally questionable and politically controversial, goal of simply increasing the number of minority persons in the universities and in
the professions that these universities feed. We will argue that Harvard's current claim to be seeking diversity as a means of improving

17 This public/private distinction means that the University of California, as an arm of the
state, must obey the 5th and 14th amendments of the Constitution by not violating due process
and by not denying equal protection to any student, faculty member, or administrator, and it
must also obey statutes which proscribe discriminatory behavior "under color of state law." The
policies and acts of a private university such as Harvard, however, have been held not to be
"state action" and not subject to constitutional scrutiny. See, e.g., Krohn v. Harvard Law
School, 552 F.2d 21, 25 (1st Cir. 1977) (holding Harvard Law School admissions policies not
"state action" for purposes of an attack under the Civil Rights Act of Apr. 20, 1871, 42 U.S.C.
§ 1983 (1974)).
This distinction may, however, mean less in the Bakke context than would appear at first
blush. Because Harvard, like most private universities, accepts federal funds for educational
purposes, it is subject to the nondiscrimination requirement of Title VI of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000d to 2000d-4 (1974). Justice Powell, at the outset of his opinion in
Bakke found that the legislative history of the Act showed that Title VI incorporated a constitutional standard, and that it "must be held to proscribe only those racial classifications that would
violate the Equal Protection Clause [of the fourteenth amendment] or the Fifth Amendment."
438 U.S. at 287. The opinion goes on to find that the University of California's system violates
the 14th amendment, 438 U.S. at 320, while a student processed by a system of "individual
consideration" such as Harvard's "would have no basis to complain of unequal treatment under
the Fourteenth Amendment," 438 U.S. at 318.
Whether the equal protection standard is applied to the state university as part of a
straightforward 14th amendment analysis, or whether it is applied to a private university by
incorporation into Title VI, the result appears to be the same: the University of California at
Davis program is not permissible, but the Harvard program is. Thus the Bakke mandate would
appear to apply equally to all schools that either are state-run or accept federal funds.

386

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[Vol. 1:379

the educational experience of its students obscures the real issue in
the debate over race-specific affirmative action admissions policies,
and further that the Court's acceptance of that claim as a sufficient
justification for considering race qua race in an admissions process
creates an unnecessary and dangerous constitutional precedent. We
will conclude that the Court should have approached the issues in a
more explicit and direct manner by deciding whether the admirable
goal of increasing the number of minority persons in the universities
and professions could be achieved by less race-specific alternatives
than the consideration of race as such in the admissions process.
Part I of this article will document the origins and history of the
current Harvard College admissions system; 18 Part II will demonstrate that the "diversity-discretion" model is still being employed
to mask its true purposes; 19 Part III will argue that Justice Powell, by
accepting the claim for diversity as a sufficiently compelling ground
for considering race, has trivialized the real issues and created a
dangerous precedent; 20 and Part IV will suggest some alternative approaches that could have been-and in our view, should have
been-explored by the Court before it legitimated the consideration
21
of race as a factor in the admissions decision.
I. THE UNSAVORY ORIGIN OF THE HARVARD COLLEGE
"DIVERSITY-DISCRETION" MODEL OF ADMISSIONS

An understanding of the unsavory origin of the twin conceptsdiversity and discretion-is essential to an evaluation of the admissions process legitimated by Justice Powell's opinion in Bakke.
Before the mid-1920's, admission to Harvard College was open to
anyone who met the relatively stringent academic requirements and
who, with the exception of a few scholarship students, could afford to
22
pay the tuition.
Between 1890 and 1920, admissions requirements began to be
standardized and made more academically rigorous. 2 3 This movement, which was designed in part to enable boys from public high
schools around the country to apply to Harvard, produced the so-

18 See text
19 See text
20 See text
21 See text
22

accompanying notes 22-68 infra.
accompanying notes 69-87 infra.
accompanying notes 88-103 infra.
accompanying notes 104-32 infra.

P. Feldman, supra note 14, at 1, 7. See also S.

STEINBERG, THE ACADEMIC MELTING

POT 20 (1974).
23

F.

RUDOLPH, THE AMERICAN COLLEGE AND UNIVERSITY 436-38 (1962).