The Trump administration last week endorsed the appeal of a federal judge's decision that Harvard University's consideration of race in admissions was legal.
The White House's decision was not a surprise; the administration backed the lawsuit against Harvard at the federal district court. But the brief filed is an indication of the arguments the administration will make, both on Harvard and on other universities.
The amicus brief outlines two major arguments against Harvard's use of affirmative action. The first was that Harvard failed to prove "that its use of race is narrowly tailored."
"Harvard meticulously tracks and shapes the racial makeup of its emerging incoming class throughout the process, continuously comparing the new class’s racial composition with that of the previous year," the brief says. "This overt engineering of racial stasis bears no resemblance to the flexible, non-mechanical 'plus' factor that the Supreme Court’s cases to date have permitted."
The brief continues, "The evidence also showed that Harvard’s process has repeatedly penalized one particular racial group: Asian Americans. Indeed, Harvard concedes that eliminating consideration of race would increase Asian-American admissions while decreasing those of Harvard’s favored racial groups. The resulting racial penalty stems in part from one component of Harvard’s admissions rubric -- a nebulous and entirely subjective 'personal rating' -- that consistently and inexplicably produces poorer scores for Asian Americans than for other applicants. That disparity is undisputed, and unexplained. Harvard bore, but did not carry, the burden of proving that this disparity is not the product of racial discrimination. As the district court observed, based on the trial record, one could not rule out racial discrimination as the source."
The second argument was that Harvard has also "failed to articulate a sufficiently concrete and measurable interest" in its affirmative action policies.
"Harvard’s admitted inability to measure progress toward its stated diversity goal independently renders its race-based process infirm," the brief says. "And deeming such an interest sufficient would frustrate, if not foreclose, meaningful judicial review. Courts cannot perform their function of carefully scrutinizing whether a school’s policy is narrowly tailored to advance a compelling interest, if progress toward that interest using a particular policy cannot be assessed."
In addition, the brief said, "although the Supreme Court has emphasized that 'race-conscious admissions policies must be limited in time,' a court’s inability to compare a school’s policy against any objective measure risks '[e]nshrining a permanent justification for racial preferences,' which 'would offend fundamental equal protection principle[s].' Harvard’s inability to identify objectively measurable goals that its race-based admissions process advances provides further reason to hold that it has failed to carry its burden."
Harvard said that it was not responding to the brief.
But Michaele Turnage Young, senior counsel at the NAACP Legal Defense and Educational Fund, said via email that the brief makes "clear that this lawsuit is a direct attack on important efforts to level the playing field and provide opportunities for qualified black, Latinx, Asian American and Native American students. In their latest briefs, Students for Fair Admissions [which brought the suit] and DOJ have dropped the guise of acting to help Asian American applicants, and instead are actually trying to force colleges to adopt policies that would return us to the not-too-distant past when students of color were virtually shut out of elite institutions like Harvard. A win for SFFA would be a loss to all Harvard students, regardless of their race, as the number of black and Latinx students would drop precipitously."