WHERE DOES Larry Summers, Harvard University’s new president, stand on affirmative action? That may or may not have been the major concern of the senior members of the Afro-American Studies Department who laid various grievances before Summers in recent weeks. But by year’s end it had elbowed aside all other issues, thanks in part to the predictable intervention of Jesse Jackson, who called Summers’s position on affirmative action “disturbing.” On January 2, Summers issued a statement that in its support of “diversity” made very happy the Afro-studies profs and their outside supporters, including the ubiquitous Jackson. It would thus appear that Summers and his pro-affirmative action critics now see eye to eye. But the Wall Street Journal resists that interpretation. In its lead editorial Monday, the Journal correctly noted that Summers’s statement “lacks any mention of affirmative action.” The Journal concluded: “We’d like to think we’re watching a stand-off and not a surrender here.”
Opposed as I am to race-based affirmative action, I’d like to think that, too. But I’d be ignoring evidence to the contrary in Summers’s statement if I did. “I take pride in Harvard’s longstanding commitment to diversity,” it says, in pertinent part. “I believe it is essential for us to maintain that commitment, working to create an ever more open and inclusive environment that draws on the widest possible range of talents. Our approach to admissions, cited as a model in the nation’s highest court, advances our compelling interest in racial and other forms of diversity. Diversity contributes to educational excellence by enabling outstanding students, faculty and staff of all backgrounds to come together and learn from one another.”
You have to be standing pretty far away to see that as a stand-off. “Our approach to admissions,” Summers was proud to say, has been “cited as a model in the nation’s court.” Justice Lewis Powell was the one who cited it–in his opinion in the 1978 Bakke case. At issue was an admissions program used at a California medical school that segregated minority from non-minority applicants, reserving 16 of the 100 seats in each class for the former. Bakke was two 5-to-4 decisions in one, with Powell providing the fifth vote for both majorities. He agreed with four Justices who found the program illegal. But he also agreed with a different four that an admissions office may, in his words, “take race into account.” Powell argued that you couldn’t run a racially bifurcated admissions program, that all the applications–whether from non-minorities or minorities–must be considered together, in the same pile, as it were. Yet as you looked at the applications, you still, in order to achieve a more diverse campus, could regard race (or ethnicity), as he put it, as a “plus” that could “tip the balance” in favor of a minority.
Powell appended to his opinion a summary of the Harvard College admissions program, which was indeed his model. The summary said Harvard’s view of diversity now included race and ethnicity, noting (with earnest condescension) that minorities could contribute “something a white student cannot offer.” The summary declined to say how many minorities should be admitted. Nor did it say how big a factor race could be. Powell’s gloss was unhelpful: The weight given to race would “vary” from year to year “depending on the ‘mix’ both of the student body and the applicants for the incoming class.” Even so, the summary left no doubt that Harvard College, while considering all applications together, used race as a plus to tip the balance for certain minorities–and necessarily against those lacking minority status. It conceded that “race has been a factor in some [of the school’s] admissions decisions”–enough, presumably, to achieve the numbers the college wanted.
Since Bakke, Harvard College, as well as its graduate and professional schools, have continued to use race as “a plus.” So have many other institutions of higher education. After all, most higher educators have thought, Powell said it was okay to do it that way. It’s hard to imagine that Summers would have described “our approach to admissions” as one “cited as a model” in the Supreme Court unless he accepted what Powell’s opinion has always been understood by people in positions like his to authorize–racial plussing, which is to say racial preferences.
It’s also striking that Summers said “our approach to admissions . . . advances our compelling interest in racial . . . diversity.” Since Bakke the Court has held that under the Constitution state-sponsored racial classifications are highly suspect and must be held to “strict scrutiny”–the most demanding there is. Under strict scrutiny, a racial classification is unconstitutional unless it serves a “compelling interest” and is “narrowly tailored” to further that interest. In Bakke, Powell, while accepting strict scrutiny, said “educational diversity” is an interest sufficiently compelling to justify the use of race in admissions decisions. Granted, Harvard is not a public institution (though as a federal grantee it must abide by the civil rights laws). But it would appear that Summers sees the legal issues much as Powell did.
A big question bubbling up to the Supreme Court is whether Powell, after all these years, was right. The 11th Circuit correctly observed last year in a Georgia admissions case that “a majority of the Supreme Court has never agreed that student body diversity is or may be a compelling interest.” The Supreme Court may soon get the chance to decide whether Powell’s opinion ought to have a majority’s imprimatur. Last month the Sixth Circuit heard two cases from the University of Michigan: One district judge rejected Powell’s diversity rationale in the course of striking down the law school’s racially weighted admissions program, but a different judge, accepting Powell, sustained a similar program used to admit undergraduates.
If the Court were to take the Michigan cases, Summers could prove me wrong about where he stands on affirmative action by authorizing a friend-of-the-court brief in opposition to the Michigan programs. But given his statement, and the pleased responses it drew, I’d say the chance of that happening are next to nil.
Terry Eastland is publisher of The Weekly Standard. His books include “Ending Affirmative Action” (Basic Books, 1996).
