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of an applicant [to] tip the balance in his favor just as geographic origin or a life spent on a farm
tip the balance in other candidates’ cases.”

At bottom, Powell’s opinion really said little about affirmative action as such. It simply delegated
to universities the discretionary power to decide on the degree and definition of the
diversity—including or excluding racial factors—that they feel enhance the educational
experiences of their students.

The Harvard College description, as quoted in the Powell opinion, tells far from the whole story
of Harvard’s quest for diversity. It fails to disclose the enormous efforts that Harvard Colleges
undertakes simultaneously to assure a certain kind of uniformity in its student body over time.
Harvard (like many other Ivy League colleges) always has given great weight to
genealogy—whether the applicant’s parents or other family members attended or taught at
Harvard. Since Harvard’s past student and faculty bodies were anything but diverse, this
“grandfather policy” guarantees a good deal of homogeneity over the generations of Harvard
College classes, as well as homogeneity in a large part of any given class.

Mr. Justice Blackmun doubted whether there was much difference between the Davis and
Harvard programs, commenting that the “cynical” may say that “under a program such as
Harvard’s one may accomplish covertly what Davis concedes it does openly.” Justice Powell
nowhere disputed this. His answer seems to be that even if both programs produce the same
result, the Davis program—because of its explicit acknowledgment of racial quotas—“will be
viewed as inherently unfair by the public generally as well as by applicants for admission...,”
whereas the Harvard program—with its vague consideration of many unquantified factors—will
not be as grating to the public or to its unsuccessful applicants.

But there is one way in which the Harvard system is ultimately less fair than the Davis one. In
order to receive special consideration under the discredited Davis program, an applicant had to be
both individually disadvantaged and a member of a specified racial minority. Under the approved
Harvard program, the applicant’s race alone “may tip the balance” in his favor even if he is the
scion of a wealthy and powerful family who attended the best schools and personally experienced
almost none of the trauma of racial discrimination. (Indeed, today some applicants seek a double
preference: as a disadvantaged black and as an advantaged offspring of a Harvard alumnus.)
Harvard’s program has the effect of preferring the wealthy and black applicant, for example, over
the poor and disadvantaged black or white applicant. In practice, Harvard probably makes more
turn on race alone than did Davis. But it does it with typical Harvard class: low-keyed, muted,
and without displaying too much exposed skin. Moreover, the history of Harvard’s use of
“geographic distribution” as a subterfuge for religious quotas leaves lingering doubts about the
bona fides of its alleged quest for diversity. 88

It will be interesting to see whether the courts, in looking to the Harvard model for constitutional
and statutory guidance, will limit themselves to the Harvard College admissions program as
described by Justice Powell, or whether they will go beneath the placid surface and probe the

88 The current dean of admissions at Harvard College genuinely seeks diversity and has worked hard to recruit
inner city Blacks. But at the time of the Bakke decision this was not nearly as true.

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