Harvard Strikes Back on Affirmative Action

Harvard will be striking back against efforts to short circuit its admissions process, its latest filing at the Supreme Court suggests. It offers a full throated defense of the use of race in determining who receives an offer to matriculate at the nation’s oldest college.The stakes stretch far beyond Cambridge. This fall the court will hear arguments in not only Students for Fair Admissions v. Harvard and a companion case. It will also hear SFFA’s suit against the University of North Carolina.These suits, which were disaggregated this week, invite the high court to reify or reject the use of affirmative action in higher education in light of the Fourteenth Amendment and federal anti-discrimination law. Of the Supreme Court’s precedents, which allow for the limited use of race in admissions, Harvard that “those decisions were correct then and remain correct today.” Students for Fair Admissions, Harvard’s foe, insists that the court’s most recent case upholding affirmative action “deserves its place beside Plessy in the dustbin of failed racial experiments.” This case reaches the court following Harvard victories at both the district and appellate level. The litigation has been spearheaded by SFFA, which maintains that a student’s race “should not be factors that either harm or help that student gain admission to a competitive university.” The group argues that affirmative action betrays the Constitution’s promise of equality. Harvard scored victories at the district and appellate levels in decisions that turned on whether its racial methodology discriminated against Asian-Amerian applicants. Both the United States District Court for the District of Massachusetts and the United States Court of Appeals for the First Circuit failed to be persuaded that Harvard unlawfully discriminated. Now, Harvard urges the court to uphold a string of precedents that have allowed for the consideration of race in pursuit of student diversity. While the school admits the Constitution guarantees “equal protection of the laws,” it notes that “nothing in the text or history of the Fourteenth Amendment suggests that universities must uniquely exclude race from the multitude of factors.” “Race is one piece of Harvard’s interest in diversity,” the school explains, and maintains that “adequate representation mitigates feelings of alienation and isolation that can inhibit learning” for students of color. In defending what it terms its “time consuming, whole-person review process,” Harvard rejects an approach that focuses “narrowly on test scores and grades.”Harvard is hunting bigger game than just its own parochial process. It suggests: “Contemporaneous measures, state and federal, show that the generation of legislators who adopted the Fourteenth Amendment also embraced measures that took race into account far more expansively than the narrow consideration” permitted under the court’s affirmative action jurisprudence.In other words, Harvard wants the Nine to not just uphold its affirmative action stance, but to expand it. To that end, it alleges that “absolute neutrality has never been a universal constitutional principle, either at the time of ratification or in the Court’s jurisprudence.” Race-conscious policies, Harvard asserts, have been with us from the beginning. Leaning on what it sees as the court’s indulgence of consideration of race when it comes to admissions, Harvard insists that it “must be allowed to consider race as one of many characteristics in admissions to achieve the compelling benefits of student-body diversity,” an approach it insists will yield “pedagogical benefits” for all students on campus. In a statement timed to coincide with the filing of its written argument, Harvard’s president, Lawrence Bacow, extolled “the powerful case” the school’s lawyers made to the court and urged “everyone to read the brief.”

Harvard Strikes Back on Affirmative Action

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