The Department of Justice issued a legal brief Thursday in support of a group of Asian American plaintiffs who are suing Harvard for allegedly engaging in racial discrimination with its affirmative action admissions policies.
“Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans,” the department argued in its filing.
In 2017, the Justice Department began seeking lawyers from its civil rights division to investigate and possibly sue universities that use race as a factor in their admissions processes. This investigation runs parallel to the lawsuit that Students for Fair Admissions, a group representing rejected Asian American applicants, filed against Harvard in 2014.
The legal strategist orchestrating the suit, Edward Blum, was also behind Abigail Fisher’s failed attempt to strike down affirmative action policies at the University of Texas. The Harvard court case is set to take place in October.
In its brief, the department echoes many of the same arguments that Students for Fair Admissions has marshaled against Harvard thus far in attempting to prove that the university engages in unconstitutional racial balancing. The department sites the work of Peter Arcidiacono, a statistician hired by the plaintiffs, who ran an analysis finding that admissions officers were consistently ranking Asian Americans lower than applicants of any other race in their personal ratings, which includes traits like kindness and courage.
This analysis at the same time found that Asian Americans scored the highest in terms of other admissions criteria like grades, standardized tests, and extracurricular criteria, but that the low personality scores often outweighed the higher ones. “The evidence … shows that Harvard provides no meaningful criteria to cabin its use of race; uses a vague ‘personal rating’ that harms Asian-American applicants’ chances for admission and may be infected with racial bias,” the department wrote of the findings.
The DOJ also pointed to an internal study that the Harvard admissions office conducted in 2013, which concluded that the share of Asian Americans in the student body would rise if the university did away with its preference for legacies and athletes. The admissions office reportedly decided not to publicize or follow up on the study, which the plaintiffs obtained through court proceedings. The Justice Department argues that Harvard “brushed aside its own internal evidence.”
In a statement accompanying the brief, Attorney General Jeff Sessions said, “No American should be denied admission to school because of their race. As a recipient of taxpayer dollars, Harvard has a responsibility to conduct its admissions policy without racial discrimination by using meaningful admissions criteria that meet lawful requirements.”
Sessions’s Department of Justice has ramped up its assault on affirmative action in recent months. In July, the Justice Department joined the Department of Education in rolling back Obama-era guidelines that encouraged colleges to use race as a factor in admissions and offered advice on how to legally implement policies that foster diversity on campus.
Update, 3:50 p.m. Harvard released a statement about the DOJ’s ruling later on Thursday.
We are deeply disappointed that the Department of Justice has taken the side of Edward Blum and Students for Fair Admissions, recycling the same misleading and hollow arguments that prove nothing more than the emptiness of the case against Harvard. This decision is not surprising given the highly irregular investigation the DOJ has engaged in thus far, and its recent action to repeal Obama-era guidelines on the consideration of race in admissions.
Harvard does not discriminate against applicants from any group, and will continue to vigorously defend the legal right of every college and university to consider race as one factor among many in college admissions, which the Supreme Court has consistently upheld for more than 40 years. Colleges and universities must have the freedom and flexibility to create the diverse communities that are vital to the learning experience of every student, and Harvard is proud to stand with the many organizations and individuals who are filing briefs in support of this position today.
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