Inside Harvard's Brief

HARVARD JOINED at least 25 institutions from all over the country in filing briefs with the Supreme Court last week which defended the practice of giving preferential treatment to minority applicants in American colleges and universities.

The outpour of support for the minority cause came as a result of the court's decision last November to hear a test case challenging admissions offices' rights to allow race to be a factor in admission decisions. The case, DeFunis v. Odegaard (1973), will be heard by the court beginning on February 26, and judging from the furor which it has created in educational circles, educators and administrators see the possible effects of this case to be at least as significant as the Brown v. Board of Education (1954) court decision.

Observers are now saying that the ruling of the court could affect not only admissions procedures for non-white minorities, but also compensatory admissions procedures based on sex, ethnicity, or socio-economic status as well. Even affirmative action plans involving hiring practices could be altered by a sweeping court ruling.

Harvard could not have found anyone to argue the case for present admissions practices more eloquently than Archibald Cox '34. The 52-page brief which Cox and some of his graduate students at the Law School put together in a little over two weeks time was probably one of the best of the 25 amicus curiae (friend-of-the-court) opinions, and will no doubt have a great influence upon the ultimate decision which the Burger court makes. Lawyers for Charles Odegaard, president of the University of Washington, acknowledged this week just how influential they think Cox is when they asked him to consider presenting oral arguments in their favor.

Cox's brief argues that as a result of its "long experience" in the area of admissions and its expertise in choosing a well-rounded, diversified class representative of all ethnic, socio-economic and racial groups, the "oldest and largest privately-endowed institution of higher learning in the United States" knows best.

In the end there is a hollow ring to Harvard's argument. Why has Harvard suddenly leaped into the fore in defending minority students? Harvard's position has not always been so emphatic. The Graduate School of Arts and Sciences, for example, admitted a grand total of eight black students to this year's class. At the same time, Harvard continually argues that it cannot hire more qualified black faculty members until there are more blacks with Ph.D.s. And Harvard went through three affirmative action plans before having its marginal one approved.

Why, in fact, have the 25 institutions which filed briefs found this case so fascinating and relevant to their interests? Some of the groups, such as the minority legal defense funds who became involved with the briefs have an obvious interest. But what of such organizations as the American Bar Association and the American Association of Law Schools? Past evidence indicates that the interests of these groups are, at best, indirect and spurious.

Any court ruling that admissions decisions must be made completely without consideration of race would be a very dangerous precedent for renewed efforts to exclude minority groups from educational and professional opportunities. Race, when considered as one factor, is a necessary input in any school's effort to achieve a diversified and representative student body. There is no doubt that such a varied student population enhances the overall educational experience of everyone.

An iron rule of color-blindness would seriously endanger much of the progress made since 1968 in the numbers of minority students in universities. Test scores of minority applicants from ghetto schools and of lower socio-economic background, cannot be expected to come out as high as those of students from suburban schools and environments which stress educational achievement, especially when the tests continue to have a strong middle-class bias in content and value.

But the court may rule that the only valid means of determining admissions qualifications is by the supposedly objective measure of academic achievement. This opens up a realm of possibility which could have a farther reaching and more devastating effect upon the make-up of the Harvard community than minor reversals of the minority policy which never received total committment in the first place.

Specifically, DeFunis v. Odegaard is a case of "reverse discrimination" involving the legality of granting special rights to groups in the population in order to help them overcome disadvantages in educational and professional opportunity. But in a broader sense, it involves the basic criteria which rightfully should be used for admissions of any students, regardless of race, creed or color.

It would be nice to believe that Harvard's benevolence in DeFunis v. Odegaard was based on its long-standing committment to minority education and a genuine fear for the minority students who must overcome severe barriers before obtaining good education or occupational training. But Harvard's tremendous interest in the DeFunis case probably owes more to a fear for the interests of those groups to which Harvard has a longer and certainly more deeply-rooted committment. Alumni son, athletic, prep school and other such groups which Harvard actively recruits for other than mere scholarly reasons all could be affected by a sweeping court ruling doing away with all but meritocratic considerations.

Perhaps as many as 80 per cent of the present student body would not be attending Harvard today if the admissions committee had to chose those applicants with the highest grade and test score index (which, in fact, is the reason Marco DeFunis claims he should have been admitted to the University of Washington Law School).

Harvard has subtly acknowledged the broader issues on which the DeFunis case could conceivably be brought to bear, but it nonetheless holds fast to the contention that its decision to file the brief came from deep concern for minorities. Yet, until Harvard demonstrates that this committment is stronger than that shown in the deficient affirmative action plans--and until Harvard begins to make convincing efforts to recruit minorities and to offer an educational alternative to intellectual assimilation--it is hard not to agree with Leon Fraser '75, president of Afro, and other minority students who contend that Harvard has stepped into the case because it fears losing control over the admission of groups far more dear to Fair Harvard than are minorities.