The Department of Justice on Thursday lent its support to Asian-American students suing Harvard University over "personal rating" affirmative action policies they claim are discriminatory - a case with far-reaching consequences for reversing Obama-era policies "to promote diverse educational settings," reports the Wall Street Journal.
he statement of interest filed Thursday by the Justice Department supported the claims made by the plaintiffs, who have sued Harvard for allegedly limiting the number of Asian-American students it admits and holding them to a higher standard than students of other races. -WSJ
The 37-page DOJ brief filed on Thursday concludes that Harvard violated the law with the "personal rating" system, and that it has failed to demonstrate how its use of the system is narrowly tailored to suit a competing interest.
"Harvard acknowledges that it voluntarily uses race as a factor in deciding whether to offer certain young adults admission to, and the substantial educational benefits of, its elite institution," reads the DOJ brief. "Harvard seeks to justify this use of race to award educational opportunities as necessary to its pursuit of the ‘educational benefits of diversity.’ But Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans."
"As a recipient of taxpayer dollars, Harvard has a responsibility to conduct its admissions policy without racial discrimination by using meaningful admissions criteria that met lawful requirements," said Attorney General Jeff Sessions in a statement.
The lawsuit, originally filed in Boston federal court in 2014 by Students for Fair Admissions, has become a "closely watched battle over how one of the nation's most selective colleges chooses who gets admitted," and whether the university has been discriminating based on race.
On Monday, the Ivy League school argued that the lawsuit should be dismissed because the case is founded on "invective, mischaracterizations and in some cases outright misrepresentations," adding that the judge should rule in their favor since the lawsuit is nothing but a "litigation vehicle" to advance the ideological objectives of the plaintiffs' group, led by Edward Blum.
The plaintiffs allege that based on their analysis, Asian-American applicants receive Harvard's lowest subjective personal rating scores, while consistently achieving the highest academic and extracurricular ratings of any other racial group. The personal rating is in part based on teacher recommendations, personal essays and admissions interviews, according to Harvard.
DOJ lawyers say the personal rating reflects racial stereotypes that Asian-Americans are less "likeable," which hurts their chances of admission.
“The vague and elusory ‘personal rating’ may be infected with racial bias against Asian Americans,” the Justice Department wrote in the filing.
The government said in the filing that Harvard acknowledged it tends to score Asian-American applicants lower on the personal rating but couldn’t explain why, representing an “intentional and unexplained use of race” in the admissions process. It said the school’s practice defies Supreme Court decisions requiring schools to consider race in a “narrowly tailored” way to achieve diversity.
The Justice Department’s Civil Rights Division has also opened its own investigation into the use of race in Harvard’s admissions practices. A Justice Department official said Thursday that the investigation is still ongoing and could result in a separate lawsuit or administrative proceedings. -WSJ
In response to the DOJ letter, Harvard said they are "deeply disappointed" that the DOJ has taken the side of 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 the Obama-era guidelines on the consideration of race in admissions."
"Harvard does not discriminate against applications from any group..."
Harvard response to DOJ re-affirmative action/race considered in admissions process: pic.twitter.com/u84CoqyfNd
— Trish Turner (@caphilltrish) August 30, 2018
Harvard claims that their admissions process takes several factors into account besides race, including athletics, socioeconomic background, legacy status and extracurricular activities.
Several students and alumni, meanwhile have condemned the lawsuit.
In briefs filed in support of Harvard at the end of July, students and alumni said that they “condemn” the plaintiffs’ “attempt to manufacture conflict between racial and ethnic groups in order to revive an unrelenting agenda to dismantle efforts to create a racially diverse and inclusive student body through college admissions.” -NYT
"It’s alarming that Trump is aligning himself with anti-civil rights activist Edward Blum in this subversive attempt to say that civil rights protections cause discrimination," said Jeannie Park - head of the Harvard Asian American Alumni Alliance. "Asian-Americans have long benefited from policies to increase equal opportunity and still do. Our fear is that Harvard’s admissions system is just the latest target in a larger fight to roll back protections for people of color in all fields, including government and business."
The DOJ briefing marks the first time the government has weighed in with legal arguments against Harvard's admissions practices - however as the Journal notes, "its stance was not unexpected" after the department had been signaling for months its desire to dismantle Obama-era affirmative action policies.
Over the summer, the DOJ and Department of Education began jointly directing schools to adopt race-neutral admissions standards - reversing the Obama-era guidance encouraging the use of race to promote diversity.
The reversal would restore the policy set during President George W. Bush’s administration, when officials told schools that it “strongly encourages the use of race-neutral methods” for admitting students to college or assigning them to elementary and secondary schools.
Attorney General Jeff Sessions said last month:
"The American people deserve to have their voices heard and a government that is accountable to them. When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the President," Sessions said. "In previous administrations, however, agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website. That's wrong, and it's not good government."
In its Thursday court filing, the DOJ said it had a "substantial interest" in the outcome of the lawsuit because it could affect their ongoing Civil Rights Division investigation, along with the interpretation and scope of several federal anti-discrimination laws.
In the bigger picture, the action to rescind Obama-era guidelines comes at a rather sensitive time for the nation, following Trump's appointment of Brett Kavanaugh for SCOTUS - a move likely to inflame a long-running national debate over the role of race in college admissions, a sensitive issue the U.S. Supreme Court has revisited on several occasions since the 1970s.
In 2016, the high court reaffirmed the practice in a 4-3 decision, but in his opinion, Justice Anthony Kennedy left the door open to future legal challenges by saying universities must continue to review their affirmative-action policies to assess their positive and negative effects.
As such, the motive behind the process to undo one of Obama's core legacies may be to serve as a litmus test by the Trump administration to gauge just how conservative Kavanaugh will be, especially since the affirmative action guidelines are relatively innocuous.
Kavanaugh wrote in a 1999 article that "in the eyes of government, we are just one race."
Sixteen prestigious US colleges supported Harvard in a July court filing, arguing that any prohibition on considering race in admissions decisions would be an "extraordinary intrusion" by the federal government.