The Department of Justice is taking its first tentative steps toward dismantling the 40-year-old system of affirmative action that governs admissions at US colleges and universities by opening an investigation into the admissions practices of America’s oldest and most venerated institution of higher education: Harvard.
According to the Wall Street Journal, the DOJ’s investigation into the use of race in its admissions process was inspired by a federal civil lawsuit filed in 2014 that alleged the university discriminates against Asian-Americans. The Department of Education dismissed the group’s allegations back in 2015. The lawsuit was brought by Edward Blum, a conservative lawyer who has focused on eliminating affirmative action. Blum, who successfully sheparded a case alleging the University of Texas discriminated against a white student all the way to the Supreme Court last year, laid out his arguments in a Washington Post op-ed published back in August, where he pointed out that the DOJ was already investigating incidences of discrimination against Asian Americans.
It is unfortunate that the Supreme Court has allowed universities to grant preferences to applicants based on race and ethnicity. Last year in Fisher v. University of Texas — in which Students for Fair Admissions provided counsel to the plaintiff — the Supreme Court allowed the University of Texas at Austin to continue the practice. Nonetheless, in Fisher and earlier cases, the court has been clear about the how these racial preferences must be implemented: Purposeful quotas and racial balancing are strictly prohibited. And, of course, diversity can never be a justification for invidious discrimination.
Proving that Harvard discriminates against Asian Americans is a complex and laborious process that will ultimately play out in open court for all of America to see. But one fact is indisputable: From 1992 through 2013, the percentage of Asians admitted to Harvard each year has been remarkably stable. In 1992, 19 percent of admitted students were Asian, while in 2013, 18 percent were Asian. This is true even though the number of Asian applicants to elite schools have disproportionately risen in recent decades. Research also shows that Asian applicants make up a large percentage of the most qualified applicants.
The issue at the crux of the DOJ’s suit is that the composition of Asians in elite schools’ student bodies has remained, more or less, constant for the 30 years even as the number of Asian-American applicants has increased, which suggests that these schools are adhering to an illegal quota system.
As WSJ points out, Asian-American groups have been raising questions about the unfairness of university admissions policies since 1989. But last year’s 4-3 Supreme Court ruling in favor of the University of Texas left the door open to future legal challenges by saying universities should continue to review their affirmative-action policies to assess their positive and negative effects.
Furthermore, the DOJ is also alleging that Harvard has obstructed its investigation by failing to turn over certain documents requested by the DOJ’s civil rights division. Harvard’s chief attorney has challenged the authority of the Justice Department’s Civil Rights Division to investigate the school under Title VI. In response, the Justice Department said the investigation was properly delegated to that division.
The DOJ provided ample warnings and hints that it intended to investigate affirmative action practices, even posting a jobs listing in August seeking attorneys with experience in affirmative action cases.
Should Harvard lose this court battle, the school could lose its access to federal funds under Title VI of the Civil Rights act (luckily, the university still has a $40 billion endowment to fall back on). The plaintiffs in the lawsuit are members of Students for Fair Admissions, which includes a group of Asian American students who were denied entry to Harvard.
Of course, Harvard is hardly the only school in the Ivy League that has been investigated for its admissions practices pertaining to Asian applicants. Buzzfeed back in May published a trove of documents from Princeton’s admissions department. The files provided unprecedented insight into the role that race plays in admissions - a revelation that unsurprisingly angered Asian-American student groups. In the files, admissions officers rejected Asian candidates with strong test scores and grades because they had “similar profiles” to other applicants, and referred to some candidates as "standard pre-med".
Given that revelation, we imagine the DOJ will soon move on to target other elite schools as it seeks to fundamentally change the federal guidelines surrounding college admissions. Widespread cried of racism by admissions committees will hardly be far behind...