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Epstein discusses Harvard lawsuit

Richard A. Epstein, the Laurence A. Tisch Professor of Law at New York University School of Law, speaks on the impacts of anti-discrimination laws in the Annual Walter F. Murphy Lecture in American Constitutionalism. Courtesy of the author.
Richard A. Epstein, the Laurence A. Tisch Professor of Law at New York University School of Law, speaks on the impacts of anti-discrimination laws in the Annual Walter F. Murphy Lecture in American Constitutionalism. Courtesy of the author.

One of the nation’s foremost constitutional legal experts would repeal Title VI of the Civil Rights Act in order to solve the quandary that is Students for Fair Admissions v. Harvard.

“Well, I say, what you do is to repeal [Title VI], and then Harvard can do pretty much whatever it wants,” Richard A. Epstein, the Laurence A. Tisch Professor of Law at New York University (NYU) School of Law, said in a lecture Monday, Nov. 26. 

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Epstein is best-known for his libertarian and classical liberal views on constitutional legal matters, and in addition to his professorship at NYU, he is the director of the Classical Liberal Institute at NYU School of Law, the James Parker Hall Distinguished Service Professor of Law Emeritus and senior lecturer at the University of Chicago, as well as the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution, a conservative-leaning think tank based at Stanford University. Epstein is widely-known for his writings on classical liberal interpretations of legal texts, most notably for his 1985 book Takings: Private Property and the Power of Eminent Domain.

Epstein said he has “very mixed emotions” regarding Harvard’s lawsuit, which has gathered controversy across the country.

“I essentially have still taken the view that every private institution should be allowed to choose the composition of its faculty, [staff, and students],” Epstein said.

However, Epstein said that Title VI of the Civil Rights Act prohibits institutions from doing that, which is why he argues that Title VI should be repealed. 

“If you read the Harvard briefs, it is unmistakable that there is a kind of cultural superiority by Harvard,” Epstein said. He claimed Harvard has expressed a mentality which seems to convey the idea that the entire admissions process is a complex system of operations. Harvard doesn’t believe that Washington fully appreciates that complexity, according to Epstein.

When asked about how the confirmation of Supreme Court Justices Neil Gorsuch and Brett Kavanaugh may influence the outcome of Students for Fair Admissions v. Harvard, Epstein said he thinks their impact will be very unpredictable.

“Both of these guys, each of them libertarian, and each of them kind of emotionally committed to the colorblind principle,” Epstein said. “So, you don’t know which impulse is going to come out.”

The lecture took place in 222 Bowen Hall on Monday, Nov. 26, at 4:30 p.m. Epstein spoke in the Annual Walter F. Murphy Lecture in American Constitutionalism of the James Madison Program in American Ideals and Institutions, cosponsored by the Program in Law and Public Affairs, and funded by the Bouton Law Lecture Fund.

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