Justice Department backs suit challenging Harvard's use of race in admissions

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The U.S. Justice Department on Thursday filed a brief to formally back a lawsuit that charges Harvard University with discriminating against Asian American applicants.

In a brief filed with the federal district court hearing the case, the Justice Department says that evidence in the case "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; engages in unlawful racial balancing; and has never seriously considered race-neutral alternatives in its more than 45 years of using race to make admissions decisions."

The brief cites existing Supreme Court rulings, which permit colleges to consider race in admissions, and says that Harvard is going beyond the limits established in those rulings. Many legal observers have believed that the department ultimately hopes to use the case to challenge those Supreme Court rulings. And with the retirement of Justice Anthony Kennedy from the Supreme Court, many legal experts doubt that a majority of justices in the future will back affirmative action in college admissions.

The outcome of the case could be significant far beyond Cambridge. Many elite colleges have admissions systems similar to that of Harvard, and so a defeat for Harvard could impact them as well. Many other colleges, far less competitive than Harvard is on admissions, consider race in awarding scholarships or in various academic enrichment programs. So they could also be affected.

The Justice Department has already backed the plaintiffs in the case on some preliminary issues. But today's filing formally seeks to join the case.

Attorney General Jeff Sessions issued this statement on why the Justice Department was joining the case: "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. The Department of Justice has the responsibility to protect the civil rights of the American people. This case is significant because the admissions policies at our colleges and universities are important and must be conducted lawfully."

While Harvard admits that it considers race and ethnicity in admissions (and defends the practice as consistent with the Supreme Court rulings), the brief asserts some things that Harvard denies. For example, the brief says that Harvard engages in "constant monitoring and manipulation of the racial makeup of its formulating class. The result is remarkably stable racial demographics in Harvard’s admitted classes from year to year."

The brief also says Harvard has failed to consider (as required by the Supreme Court) whether there are race-neutral alternatives to its current policies. "Harvard has been using race to make admissions decisions for more than 45 years -- but substantial record evidence demonstrates that, even now, it has never engaged in 'serious, good faith consideration of workable race-neutral alternatives,'" the brief says. "Harvard thus has stacked the deck to reject race-neutral alternatives."

The filing comes at a time when various groups are weighing in with the court -- on both sides -- over the issues in the case.

Shortly after the brief was filed, Harvard issued a statement in response.

"We are deeply disappointed that the Department of Justice has taken the side of Edward Blum and Students for Fair Admissions [the plaintiffs in the case], 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," the statement said. "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."

Also today, 531 scholars of race, ethnicity, Asian American studies and education filed a brief backing Harvard's position.

The brief argues that it is the plaintiffs, and not Harvard admissions officials, who are guilty of using stereotypes.

"High achieving Asian American applicants benefit from Harvard’s individualized whole person review because it treats each applicant as an individual and inhibits the influence of racial biases and assumptions," the brief says.

It adds: "Plaintiff’s arguments to the contrary are largely premised on racial stereotypes of Asian Americans as a monolithic group with uniformly high test scores and high school [grade point averages] -- and on related negative stereotypes about African American and Latino students’ academic abilities. Asian Americans comprise an incredibly diverse population, with a variety of national origins, economic circumstances, and educational opportunities. But, ironically, Plaintiff treats Asian Americans as a homogenous population, never pausing to acknowledge the immense diversity within that group. Harvard, in contrast, treats each Asian American applicant (like applicants of every other race) as an individual person whose achievements along multiple axes reflect the individual’s personal context and life experience."

The American Civil Liberties Union also filed a brief Friday backing Harvard. The ACLU argued that the suit was seeking to undermine Harvard's right to, within legal limits, determine its own admissions standards.

"Plaintiff’s request that this court require Harvard to ignore the role that race plays in contributing to campus diversity is unmoored to the claims on which they seek summary judgment; even if they were to prevail on any of those claims, the requested remedy would be unjustified." the ACLU brief says. "To impose such a straitjacket on the admissions process where not required by equal protection would violate the university’s First Amendment-protected academic freedom. And because a diverse student body furthers equality beyond the university’s walls, integration within, and the dignity of each student, barring the limited consideration of race that Harvard -- like virtually all other universities -- deems necessary to achieve diversity would have widespread deleterious effects."

Here are some recent articles on the case and related issues: