<p>Harvard can’t discriminate–eg take only blue eyed white boys–if they receive federal funds but don’t have to use or not use affirmative action. They are careful in how it is phrased–which is key–so as not to be viewed as discriminating and thus violating Federal regulations. It isn’t as cut and dry, but courts will give private institutions a great deal of slack. Also those private institutions which have as their mission to educate a certain type of person–women’s colleges, historically black colleges for example, or religious colleges would be free to continue their practices.</p>