Aesthetic Affirmative Action

Four years ago, when I was entering Harvard College, affirmative action programs had just been dismantled in the University of California system. Last week, affirmative action was given a shot in the arm when a Sixth Circuit Court of Appeals upheld the constitutionality of the University of Michigan Law School’s admissions process, which grants extra “points” to minority students in the admissions process, to ensure the enrollment of a “critical mass” of black and Hispanic students.

But the battle to preserve affirmative action at the university level will continue on up to the Supreme Court. As it occurs, Harvard has a unique opportunity to play the same role it did 25 years ago, when it stood alongside public universities like Michigan and championed the cause of campus diversity.

Twenty-four years ago the decision in the landmark affirmative action case, the University of California Board of Regents v. Bakke, was handed down. California, it seems, has always been a magnet for affirmative action lawsuits. Bakke said “quotas” were unconstitutional, but that diversity was “a constitutionally permissible goal for an institution of higher education.”

University President Lawrence H. Summers reacted to last week’s news with characteristic sanguinity, saying, “I applaud the circuit court’s decision, which represents the endorsement of the kinds of admissions process that Harvard has used for years.”

Unfortunately for Michigan, though fortunately for Harvard, Summers’ statement is not quite accurate. In fact, Michigan’s program involves a 150 point system, in which minority students are automatically given 20 extra points when they apply. Harvard’s program, carefully crafted by former President Bok with the help of federal attorneys, treats race as one criterion among many that may give equally qualified candidates that extra “boost” to gain admission. Both systems aim to increase campus diversity, and both should be protected by the Constitution.

A program in which students are granted extra “points” on the basis of their race is admittedly less appealing than a program that purports to take into account the entire “experience” of a student when seeking to diversify a student body. Public universities like the University of Michigan rely on numerical systems and admit students that rank high on a certain scale. When these systems result in low minority admissions, they manipulate the scale in order to give minorities an extra boost.

In Bakke, Justice Powell held up Harvard’s affirmative action program as an example of the kind of program that would pass muster in the court’s eyes. But realistically, public universities have never tried to match Harvard’s stringent application review. Nor would that be the best use of their limited resources. Michigan’s diversity may be achieved with fewer resources than Harvard’s, but it seems to get the job done. Indeed, for the last four years Michigan has achieved its “critical mass” of minority students. To be sure, it does not, as Justice Powell wrote of Harvard, “treat each applicant as an individual in the admissions process.” But does this mean that Michigan should redirect money spent on textbooks, classrooms and professors to ensure that each applicant is treated as an individual?

Brennan wrote in his concurrence that Harvard’s method was more appealing to the public because it “proceeds in a manner that is not immediately apparent to the public.” Harvard’s privacy, as well as its status as a private university may therefore protect its affirmative action program even if—and, as it seems increasingly likely, when—the Supreme Court rules Michigan’s program is unconstitutional. (The court has often ruled private institutions exempt from scrutiny on this issue.)

However, if the goals of Harvard and Michigan are substantively the same—to create a diverse student body for diversity’s sake—as Justice Brennan argued in his concurrence to Bakke, they should be treated equally. Just because Harvard is able to conceal its methods from the public by using more sophisticated tools than a 150-point scale does not mean it should duck and cover during the anti-affirmative action backlash.

Although Summers misspoke when he said that Michigan’s admissions process was the same as Harvard’s, his was at most a white lie. Truth be told, Harvard’s method is only a more sophisticated, less numerical version of Michigan’s. They may appear different, but to paraphrase Brennan, just because one system adds points to admit disadvantaged minority applicants and the other adds a non-numerical preference, does not make one constitutional and the other not.

One of the reasons Cornel West left for Princeton was reputedly because Summers did not make a strong enough statement in support of affirmative action to demonstrate his commitment to diversity. Summers’ predecessors have made such commitments. President Bok presided over the creation of Harvard’s affirmative action program and argued for its constitutionality during the Bakke case. Rudenstine presided over the rise of the Afro-American studies department from a one-professor, one-student affair to a nationally recognized, ground-breaking department with a $39 million endowment.

Now that it is almost assured that Michigan’s case will reach the Supreme Court, Summers’ duty should be clear. Harvard should submit a “friend of the court” brief and argue for the constitutionality of Michigan’s affirmative action program on the basis that goals, not methodology, matter in this instance. If diversity is a constitutionally legitimate value for a university, Harvard should stand up for universities without the resources to make their affirmative action programs aesthetically pleasing.

Meredith B. Osborn ’02 is a social studies concentrator in Leverett House. This is her final column.