Justice Department criticizes Harvard in affirmative action case

Washington Post

The Justice Department sharply criticized Harvard University's admissions practices Thursday, asserting that evidence in a federal lawsuit suggests the Ivy League school engages in "racial balancing" when it selects a class, a potential violation of boundaries the Supreme Court has set on affirmative action in college admissions.

With a legal brief filed in federal court in Boston, the department weighed in on a closely watched lawsuit challenging Harvard's use of race and ethnicity in admissions, alleging that the university is biased against Asian-Americans. The Justice Department's brief showed that the Trump administration is sympathetic to that argument and believes that Harvard has failed to show it does not unlawfully discriminate against Asian-Americans.

The action demonstrated anew the administration's deep skepticism of affirmative action in education and pointed to the direction it is likely to take if the issue reaches the Supreme Court again. Under President Barack Obama, the Justice Department had made legal arguments in support of how colleges use race in admissions.

The department said it drew several conclusions from evidence it has reviewed. Among them: that Harvard has failed to explain exactly how it weighs race against other factors in an application; that Harvard uses a "personal rating" that may be biased against Asian Americans; and that "substantial evidence" indicates admissions officers monitor and manipulate the racial makeup of incoming classes, despite court rulings that have found "racial balancing" unconstitutional.

"No American should be denied admission to school because of their race," Attorney General Jeff Sessions said in a statement. "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's brief urged the judge in the case to deny Harvard's effort to secure victory in the suit without a trial. But the department stopped short of endorsing the plaintiff's view that courts should ban consideration of race in admissions.

Harvard has repeatedly denied wrongdoing and said the lawsuit is part of an ideological campaign to overturn Supreme Court rulings that allow affirmative action.

On Thursday, the university said in a statement it was "deeply disappointed" that the Justice Department had sided with the plaintiff, "recycling the same misleading and hollow arguments that prove nothing more than the emptiness of the case against Harvard."

But the university said the department's action was "not surprising" given the Trump administration's record on the issue.

"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," the university said. "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."

The case, likely to be tried in October, could become the next test of whether the Supreme Court is willing to overturn decades of precedent on affirmative action and ban the consideration of race in college admissions. The high court has affirmed multiple times, most recently in 2016 in a suit challenging policies at the University of Texas, that schools may take race into account as one factor among many in pursuit of assembling a diverse class. The court ruled most recently in 2016 in a suit challenging policies at the University of Texas,

But the court also has put limits on the practice. It has prohibited racial quotas and pushed schools to consider whether they can achieve their goals through race-neutral alternatives, using financial aid and other recruiting tools to ensure socioeconomic and geographic balance. The premise is that such methods could produce adequate racial diversity indirectly, without subjecting applicants to racial bias.

The results of that theory have been tested in several states, including California and Florida, that prohibit the consideration of race in public university admissions. Many educators say those results have proved disappointing, with the share of African-Americans and other historically underrepresented minorities falling at the most competitive schools.

The plaintiff in the Harvard case, a group called Students for Fair Admissions, sued in 2014, alleging that the university unfairly and unlawfully discriminates against Asian- Americans by limiting the number of seats they are offered in an incoming class in a quest to boost the chances of applicants from other groups.

Harvard denies the allegation and says it is following guidance from Supreme Court rulings dating back to the 1970s. Many selective colleges and universities have filed briefs with the court supporting Harvard's position and arguing for preservation of the status quo. These prestigious schools describe their admissions process as "holistic," saying that they review the entirety of an applicant's academic credentials and background - including race and ethnicity - before deciding whether to offer a seat.

Thursday's action marked the Trump administration's second direct intervention in the case this year. In April, the Justice Department urged U.S. District Judge Allison Burroughs to allow internal documents about Harvard's admissions process that are relevant to the suit to be made public.

Separately, the department last year launched a civil rights investigation of Harvard's admissions policies.

Harvard is one of the world's most selective universities. It received 42,749 applications for the freshman class entering this fall and offered entry to 1,962, fewer than 5 percent. About 1,650 were projected to enroll.

Of those admitted, 22.7 percent were Asian-American, 15.5 percent were African- American, 12.2 percent were Latino, and 2 percent were Native American. Twelve percent were international students. Harvard says the Asian-American share in the admitted class has grown significantly in the past decade. 

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