1 Cardozo L. Rev. 379 (1979)
Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext

handle is hein.journals/cdozo1 and id is 389 raw text is: AFFIRMATIVE ACTION AND THE HARVARD
COLLEGE DIVERSITY-DISCRETION MODEL:
PARADIGM OR PRETEXT?
ALAN M. DERSHOWITZ -
LAURA HANFT*
INTRODUCTION
The Supreme Court's long-awaited decision in Regents of the
University of California v. Bakke 1 has spawned an endless stream of
commentary, criticism, and analysis, as college administrators,
lawyers, and legislators attempt to decipher its 150 pages of studied
ambiguity.2
The quest for the definitive interpretation of this effort by nine
men to confront a set of perplexing social, moral, legal, and political
issues within the narrow confines of a contrived judicial case and con-
troversy is a futile one.3 It would be a tragedy if the important de-
bate over the role of race-specific affirmative action programs were to
be deflected into such a quest.
This article does not attempt a systematic interpretation of the
Justices' opinions, either individually or collectively. Nor does it pur-
port to answer the fundamental constitutional question left open by
the court: To what extent and under what circumstances may a state
consider race qua race in the allocation of benefits among its citizens?
Its purpose is to raise questions about some of the implications of
Bakke and more specifically about Mr. Justice Powell's selection of
the Harvard College admissions process as a model of fairness and
constitutionality.
* Mr. Dershowitz is Professor of Law at Harvard, where he has never served ol any
admissions committee. He was of counsel on the amicus curiae brief in Bakke submitted by The
American Jewish Congress, American Jewish Committee, and several other organizations. Ms.
Hanft is a student at Harvard Law School and was a college admissions officer elsewhere.
1 438 U.S. 265 (1978).
2 Since Bakke was decided, in June 1978, there have been many law review commentaries
analyzing the opinion. Among the more notable are several symposia of articles on issues raised
by the Bakke decision. E.g., A Symposium: Regents of the University of California v. Bakke, 67
CALIF. L. REv. 1 (1979); Bakke Symposium: Civil Rights Perspectives, 14 HARV. C.R.-C.L. L.
REV. 1 (1979); Symposium: Equality in America: A Color-Blind Constitution? 21 How. L.J. 481
(1978).
3 See Brief of Amici Curiae for the National Urban League et al., Regents of the Univ. of
Cal. v. Bakke, 438 U.S. 265 (1978), arguing in opposition to grant of certiorari that petitioners
attempted to stipulate to jurisdiction, id. at 13-19, and claiming that the University's primary
aim was to 'set the stage' for a judicial determination, id. at 16 n.10, and including correspond-
ence between Bakke and Peter Storandt, Assistant to the Dean of Student Affairs/Admissions
at the University of California at Davis, suggesting that Bakke apply a second time and that he
consider legal action if not accepted, id. at app. A.

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