In fact, representation of racial and ethnic minorities has indeed remained relatively steady in the first class admitted under the revived early action program. Black students comprise 11.8 percent of those admitted to the pre-early action Class of 2015 and 10.2 percent of those admitted to this year’s admitted Class of 2016. The percentage of Latino students declined from 12.1 percent to 11.2 percent.

Still, Kahlenberg maintains that early admission delivers the greatest blow to socioeconomic diversity.

“Harvard should give greater weight to the economicobstacles that a student has overcome in the admissions process,” he said. “The financial aid piece is terrific, but it doesn’t help students to know that financial aid is available if they’re shut out.”

PLAYING DEFENSE

Legal experts agree that the Court will likely rule against the method of affirmative action employed by the University of Texas. Still, the concrete consequences for Harvard are difficult to predict—depending on the wording and nuances of the decision, the ruling could leave Harvard unscathed, or it could necessitate a dramatic change in the way Harvard evaluates applicants.

Even if the Court rules against Texas, universities could potentially consider race using non-explicit means, a system Justice Ruth Bader Ginsburg described as a set of “winks, nods, and disguises.”

Harvard Law School professor Richard H. Fallon said this sort of system could be particularly effective at institutions with significant resources like Harvard.

“The elite rich universities and private colleges that are in a position to do highly individualized assessments of individual applications would find ways to continue to seek diversity without asking students to identify themselves by race. But that’s only a guess,” Fallon said.

Fallon said he believes that the Court will rule against Texas, but he also expressed skepticism that the decision would completely eradicate the consideration of race in admissions. Justice Anthony M. Kennedy, the Court’s likely swing vote, has stated that he supports Powell’s reasoning in the Bakke decision, according to Fallon.

“Knowing who wins and who loses isn’t going to be enough to give anybody very much guidance until somebody reads an opinion and understands why what Texas is doing is either permissible or not permissible,” said Fallon. “Where will Justice Kennedy draw the line? I don’t know where...but if I were sitting over in Massachusetts Hall I would be very concerned.”

Perhaps for these reasons, Harvard remains invested in helping to defend Texas.

“I think we’re very concerned because having a basis on which to choose students that takes into account a broad variety of factors is extremely important to us,” said Faust of Harvard’s position on Fisher v. Texas.

Faust’s concern has been echoed in the actions of the University and its peer schools. Months away from the Court hearings, Harvard has partnered with six other institutions—Brown, Duke, Princeton, Yale, the University of Pennsylvania, and the University of Chicago—to retain former U.S. Solicitor General Seth P. Waxman ’73 to prepare an amicus brief in defense of affirmative action, according to University General Counsel Robert W. Iuliano ’83

“Student body diversity powerfully improves the educational experience of all students and prepares our graduates to be effective citizens in an increasingly diverse society,” Iuliano wrote in an email. “The consideration of race as one of many factors in an individualized review of each candidate helps us achieve those goals by composing a class that is more than the sum of its parts.”

While experts said they understand the University’s concern for its affirmative action program, they believe the worries stem from a deeper anxiety about universities’ freedom and independence.

“I would suppose it is to defend what you might call academic discretion on behalf of all universities, saying that universities ought to have flexibility into taking race into account,” Tushnet said.

The bottom line, legal experts agree, will only emerge when the Court issues its ruling next spring.

“It’s not at all clear,” said Fallon of how a ruling against Texas would affect Harvard. “You just have to wait and see.”

—Staff writer Justin C. Worland can be reached at jworland@college.harvard.edu.