The U.S. Department of Justice, in an amicus brief filed to a federal appeals court on Tuesday, is arguing against a ruling from last October, which defended Harvard’s use of affirmative action in its admission process. In that ruling, a federal court said Harvard didn’t discriminate against Asian Americans in its admissions process, a contention made in a lawsuit filed in 2014 against it by an anti-affirmative action group called Students for Fair Admissions (SFFA).
The DOJ’s amicus brief supports an appeal made by SFFA, three days after the federal court’s ruling in favor of Harvard last fall. The DOJ filed its brief in the United States Court of Appeals for the First Circuit in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
In a statement, the DOJ says Harvard’s “use of race in its admissions process violates federal civil rights law and Supreme Court precedent.” In the statement, the DOJ said Harvard must comply with Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin in programs and activities that receive federal financial assistance.
“Race discrimination hurts people and is never benign,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division, in the statement about the brief. “Unconstitutionally partitioning Americans into racial and ethnic blocs harms all involved by fostering stereotypes, bitterness and division among the American people. The Department of Justice will continue to fight against illegal race discrimination.”
The DOJ’s brief agrees with SFFA’s contention that Harvard evaluates Asian Americans differently from other groups.
“In other words, Harvard’s admissions officers tended to evaluate Asian Americans, as compared to members of other racial groups, as having less integrity, being less confident, constituting less-qualified leaders, and so on,” says the DOJ’s brief.
The DOJ’s brief also says “the remarkably stable racial composition of Harvard’s incoming classes reflects racial balancing,” and that Harvard “achieves racial balancing by considering race throughout the admissions process and continually monitoring and reshaping the class’s racial composition.” And while it says the Supreme Court has held that colleges receiving federal funds may consider applicants’ race in certain limited circumstances, Harvard has “failed to prove that its use of race is narrowly tailored.”
The SFFA praised the DOJ for filing the brief, reported The Harvard Crimson.
“Students for Fair Admissions is grateful the U.S. Department of Justice has formally recognized that Harvard’s admissions policies discriminate against Asian American applicants,” said SFFA President Edward J. Blum to the Crimson in an email. “DOJ’s amicus brief accurately highlights the emails, depositions, internal studies, data analysis and testimony that SFFA presented to the district court to prove that Harvard’s admissions policies are discriminatory.”
Some civil rights activists criticized the DOJ’s move.
“This Justice Department just issued a hostile brief in the Harvard affirmative action case …. We continue to fight back against this attempt to turn the clock back on racial diversity in the higher education context,” tweeted Kristin Clarke, president and executive director at National Lawyers’ Committee for Civil Rights Under Law.
Others said the DOJ’s action was to be expected.
“Predictably, the Trump administration has filed an amicus brief in support of the appeal,” tweeted Diverse Harvard, a group that describes itself as comprising “Harvard & Radcliffe alumni, students, staff and faculty fighting for diversity, equity and inclusion at Harvard and in higher education.”
Last fall, some academics predicted to Diverse that the judgment would be appealed.
“This is going to be appealed and obviously the administration would like to take a case to what they think is a much more conservative Supreme Court and be able to win in spite of all of these powerful factual findings,” said Dr. Gary Orfield, distinguished research professor of education, law, political science and urban planning and co-director of the Civil Rights Project at University of California, Los Angeles.
Another academic concurred with Orfield last fall, saying the fight over affirmative action will be ongoing and will likely come before the U.S. Supreme Court again.
“Civil rights are being challenged at their most basic levels” on a daily basis, said Dr. Stella M. Flores, associate dean for faculty development and diversity and associate professor of higher education at the Steinhardt School of Culture, Education, and Human Development at New York University.
Harvard is scheduled to submit its brief in the case by May 14, said the Crimson.
In 2019, Harvard admitted 2,009 students for what will be its class of 2023, according to statistics on its website. Of those admitted, it said 14.3% are African American, 25.3% are Asian American, 12.2% are Hispanic or Latino and 2.4% are Native American or Native Hawaiian.