Recently, the Department of Justice filed a Statement of Interest in a lawsuit against Harvard University for racial discrimination against Asian-Americans in undergraduate admissions. The Statement was filed in opposition to Harvard’s motion for summary judgment because “Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans.” Statement of Interest at 1.
DOJ makes several arguments in support of the claim that Harvard has so failed to meet its burden. First, it points to problems with Harvard’s use of “personal ratings” scores, which are extremely important to determining whether an applicant is eventually admitted. Asian Americans do worse on this measure than do members of other groups, and their low scores are especially noteworthy in contrast to their academic index scores, which are high relative to the averages for other groups. Differences in Asian Americans’ alumni interviews, counselor, and teacher recommendations do not appear to explain the low personal rating score, suggesting that the personal rating measure is tainted by racial bias.
Second, there is substantial evidence that Harvard is engaged in unlawful racial balancing. It closely tracks racial data for admitted students throughout the admissions process. Further, throughout the last few years, there has been remarkably little variation in the racial breakdown of each Harvard entering class, implying use of racial targets or quotas in admissions. Finally, the Supreme Court’s affirmative action jurisprudence requires universities to undertake serious, good faith consideration of race-neutral alternatives that could achieve their student body diversity goals. The record evidence shows that Harvard has not undertaken such study, convening only pro forma committees to consider race-neutral admissions in response to litigation, despite its having used race preferences in admissions for decades.
Why is this Statement of Interest important? First, it is a marked departure from the enforcement approach of the previous administration. For the Obama DOJ, the unlawful use of race preferences in admissions was an enforcement priority so low that one might fairly question whether it was on their list of priorities at all. It issued guidance essentially telling universities that they had a great deal of latitude to use race in admissions and that they were unlikely to face investigation from the federal government for using race. By contrast, this Statement of Interest stands out for its length (37 pages) and the thoroughness of the research that went into it. It tells colleges and universities that the DOJ will be watching their use of race in admissions.
Because the Supreme Court’s affirmative action cases basically require race-preference policies to be challenged one at a time and at significant expense, whether DOJ is carefully monitoring colleges and universities or not can make a large practical difference. In its major Supreme Court affirmative action cases, the Court could have held that race preferences in admissions are unconstitutional full stop. Or it could have been very deferential and held that they are generally legal. But instead, it has issued a series of decisions that steer a middle course between those two extremes, holding that the Court will defer to universities’ educational judgments about student body diversity, but that it will not defer completely.
The effect is that any challenge to a single university’s use of race in admissions will require significant resources. For example, figuring out if a university properly considered race-neutral alternatives will require hours of lawyers’ time and thousands of dollars to go through records of faculty and administrative meetings, e-mail records, and the like. Few if any rejected teenage applicants have the resources to finance these discovery costs. I suspect that many universities know this and have concluded the litigation risk of continuing to use race preferences is low. On the other hand, nearly all American colleges and universities receive significant federal funding, and nearly all must take the potential loss of such dollars seriously. If the federal government is watching the use of race in admissions closely, universities will be much less inclined to push up against (or over) the limits of the law.
The choice to intervene in a case involving Harvard University is also significant because of the “cascade” effect of the use of race preferences in admissions. The racial and ethnic minority students who are admitted to Harvard because of preferential treatment are all capable of being admitted to other excellent but slightly less selective universities under race-neutral admissions. This poses a difficulty for the school a notch below Harvard. It might wish to avoid using race-preferential admissions. But if all of the students who would qualify to attend there under race-neutral standards are instead attending Harvard, then it must either use race-preferential admissions or accept having few or no minority students. So many such schools adopt race preferential admissions and thus create the same difficulty for institutions a tier below them. In other words, top schools’ decisions about race-preferential admissions have significant downstream effects. If Harvard shifts its policies in response to DOJ’s actions, it thus has significant consequences for schools elsewhere in the academic hierarchy.