As one of the premier institutions in the country, Harvard is used to acting affirmatively.

But on affirmative action, the University has been forced to adopt an uncomfortable "wait and see" attitude.

And University officials say they are frightened that an adverse Supreme Court ruling might throw their entire philosophy of diversity in education out the window.

Last March, the Fifth Circuit Court of Appeals struck down the University of Texas Law School's affirmative action program for admissions, ruling that race could not be considered as a factor.

The case, Hopwood v. Texas, was appealed to the Supreme Court, but the court refused this summer to hear the case, leaving the lower court decision on the books.

The Hopwood ruling now affects only Texas, Louisiana and Mississippi, which are covered by the Fifth Circuit.

Because the Supreme Court refused to hear the case, the rest of the country remains governed by the 1978 Bakke v. California decision, which ruled that race can be used as one factor among many in the admissions process.

Officials at schools across the nation say they are concerned that another case may soon reach the Supreme Court and the Bakke ruling could be overturned.

At Harvard, President Neil L. Rudenstine has spoken out repeatedly during the past six months in favor of affirmative action, saying that it, as defined by the Bakke case, is necessary to achieve educational diversity.

Now he, and college officials across the country, can only wait and watch for the Supreme Court's next move.

The Legal History

In 1992, four white students sued the University of Texas, claiming that they were discriminated against because of race when they were denied admission to its law school.

According to Steven W. Smith, the Austin attorney who originally took their case, the students never objected to the principles of admissions outlined by the Bakke ruling, but rather wanted the school to take into account more factors than simply race in giving preference in admissions.

Smith says he and his clients believed that in many cases, race was not as important a factor in establishing the need for preference as family background, schooling and socio-economic class.

"The system said that people who are situated similarly economically and scholastically, say where they went to school or where they grew up, should be treated differently," Smith says. "Blacks, Mexican-Americans and whites who grew up on the same street were treated vastly differently when it came to admissions."

University of Texas Executive Vice-President and Provost Mark G. Yudof says the previous policy was not intended to be significantly different from what the plaintiffs in the case wanted.

According to Yudof, under the previous system, there were no separate cutoffs for minority and white applicants. However, minority applicants were examined by the assistant dean of the school, in addition to the standard admissions committee, while white applicants were not.

In order to assuage concerns that the U-Texas policy amounted to separate committees reading the applications, Yudof said the school modified its previous system several weeks before the trial, so that the same committee read all of the applications.

"The university defended everything," Yudof says. "We defended based on past and present discrimination and made a lot of arguments about the need to integrate professions and the socioeconomic pipelines through which people can obtain jobs."

"We won a smashing victory in trial court," Yudof says. "The judge made extensive findings to say that what we said was true."

The judge agreed that Texas' policy fell in line with national law under the Bakke case, according to Yudof.

In appellate court, however, Yudof says the university "ran into a buzzsaw." Not only did the court rule that the previous structure of separate readings for the applications was unconstitutional, but the court also ruled that taking race into account at all was unconstitutional.

"The court ruled that Bakke was no longer the law of the land," Yudof says.

The Stormy Present

The results in the Hopwood case have left national laws ambiguous, with Hopwood applying in three states and Bakke in the other 47.

The result has been that colleges and universities have scrambled to determine their courses of action; affected schools have had to completely redesign their admissions processes and non-affected schools have had to ready themselves for possible future changes.

From the Harvard perspective, the Supreme Court's decision over the summer is a mixed blessing, Rudenstine says.

"Bakke remains the law of the land, which is where we want to be, where we stand and where we ought to be," Rudenstine says.

The Harvard admissions process was, in fact, cited in by the Supreme Court in the Bakke decision as a model for other schools to follow.

Harvard's Director of Admissions William R. Fitzsimmons '68 says admissions offices around the country have been talking about the decision, and everyone is watching for another case to reach the Supreme Court.

"The timing on this is very unclear," Fitzsimmons says. "It could be that there will be another case in the near future, or it could be quite some time until a case emerges for the U.S. Supreme Court to review."

In the meantime, U-Texas has been forced to fundamentally alter the way it considers applications.

"If we didn't adhere to the opinion, we would be subject to punitive and regulatory damages," Yudof says. "The court would order--and put into effect--injunctions."

Schools who do not comply could have the courts take over their admissions processes completely, Yudof says.

Although the ruling was against a public institution, private schools are not exempt from the law. Current federal statutes stipulate that any university receiving federal money must abide by the Constitution and hence federal court rulings.

According to Julie M. Browning, director of admissions at Rice University in Houston, Rice has already removed all questions pertaining to race from its application.

Instituting new admissions processes is time-consuming and costly for an institution the size of U-Texas, Yudof says.

Private schools like Rice are often much better equipped to handle the new regulations than U-Texas because they have more comprehensive admissions procedures in the first place, Browning says.

"Ironically, like most highly-selective schools, we are best prepared to deal with change, because they are not formula-driven," Browning says. "We include a couple of essay questions designed to get at special experiences and talents."

In another irony of the current state of federal law, Browning says that while Rice is not allowed to use race at all in admissions, the federal government still requires it to release statistics about race.

According to Rudenstine, eliminating this contradiction in policy would be disastrous because if the government cannot keep statistics on race, it cannot prevent schools from discriminating against minorities.

Even so, Yudof says the ruling will dramatically injure the school's ability to maintain diversity in the student body because it is not playing by the same rules as the rest of the nation.

"Even when we are considering students who are clearly qualified by any standard, we cannot offer them the same [financial] support as those schools that are still governed by Bakke," Yudof says.

Browning says Rice, too, is unhappy with its predicament and would like a national ruling on the issue.

"We were very disappointed the Supreme Court didn't rule on the issue," Browning says. "We don't like the idea that the Fifth Circuit has one set rules and rest of the country has another."

The Uncertain Future

Harvard officials say the possibility that a ruling like Hopwood could come into effect for the whole nation would be disastrous to the school's philosophy of providing diversity in education.

"It would be a very damaging judgment," Rudenstine says. "To have schools not have flexibility in admissions is very damaging."

But Rudenstine says that because of the complex nature of Harvard's admissions system, it would be difficult for such a judgment to alter that process.

Even if the government flatly says that admissions cannot take race into account, as it has in the Fifth Circuit, Rudenstine says, the question of what it means to consider race is very ambiguous.

"Should we blindfold ourselves?" Rudenstine asks. "If we're interviewing a Russian of Vietnamese student without a great command of the English language, are we going to say we didn't notice? Are we going to say, 'Sorry, don't tell me anything about the person?'"

Fitzsimmons says many admissions offices have already designed strategies to circumvent the kind of restrictions in effect in the Fifth Circuit.

"Schools will look at involvement in activities to do with race and ethnic relations, will look for people who have been very active in community work, and other things to find students from broader range socioeconomic backgrounds," Fitzsimmons says.

According to Fitzsimmons, Harvard would not likely be as affected by strict federal legislation as other institutions because it already takes a broad range of factors into account to find students of diverse backgrounds.

Also, because such a high percentage of Harvard applicants are more or less equally qualified to be admitted, affirmative action has never been used to admit lesser-qualified applicants but rather as a "tie-breaker," he says.

While limitations on admissions offices would be damaging, the effect of a national ban on affirmative action in admissions could vastly reduce the number of minorities who apply to highly selective schools, Fitzsimmons says.

"Since we don't know what the ruling might be, we can't know what the resulting climate might be," Fitzsimmons says. "Over a long period of time, perhaps, it might have a chilling effect on minority applications."

Prospective minority students often consider the racial make-up of schools to which they apply, Fitzsimmons says, and if they don't perceive the school as a place friendly to minorities, they are far less likely to apply.

In this scenario, Harvard's current strategy may become even more important, Fitzsimmons says.

Harvard has and does aggressively recruit minority students--in some cases as early as middle school--to persuade them to come to Harvard, he says.

The result is that the pool of applicants from which Harvard selects its students contains many more highly qualified minority applicants than most schools, Fitzsimmons says.

"Recruiting could take on even greater importance in the future," Fitzsimmons says.

While there is not much Harvard can do now but wait, Rudenstine says that when the issue again enters the national consciousness, he will not hesitate to speak out.

"I wanted to wait to consider where the admissions process is under questioning, then we will take on the issues and take them on substantively," Rudenstine says.

He says he remains confident that if the issue is properly put into the context of the need for diversity in education and the actual mechanics of college admissions, affirmative action will prevail.

"I wonder to what extent people outside this issue know anything about admissions," Rudenstine says.