The Justice Department Is Rethinking Affirmative Action—That’s a Good Thing

A complaint against Harvard’s use of race in admissions may result in an end to this discriminatory practice.

I wrote the article below for the Weekly Standard back August, when the story first came out. Here at CEO we’ve been following the complaint. It’s taken longer than we thought it would for the Justice Department to decide whether to enter the case as a friend of the court or to file its own complaint or—the wrong course in my view—to do nothing. Yet in recent weeks issues over the government’s access to Harvard’s admissions records have been resolved. So there’s reason to think a decision out of Justice might be imminent. Harvard could be the defendant in arguably the most important affirmative action case in higher education since the Michigan pair of cases that the Supreme Court decided in 2003.

The Justice Department is pushing back against a New York Times article that claimed it was preparing to investigate and sue universities over affirmative action admissions policies deemed to discriminate against applicants not of the preferred race or ethnicity.
The initial Times story was based on “an internal announcement to the civil rights division” that was leaked, and the leaker had a motivation not hard to guess—to warn civil right liberals about the project and stimulate opposition to it.

However, says the Justice Department, there is no such “project” to sue multiple universities. There is an effort to recruit volunteers “to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior administration left unresolved. The complaint alleges racial discrimination against Asian Americans in a university’s admissions policy and practices,” that university being Harvard. That the department should seek volunteers for this labor could mean that the career civil servants in the civil rights division are not keen on handling the complaint. Justice has not intervened in the case or filed a friend of the court brief—as the Times says in its story Thursday, accurately.

All of this is heartening news, for it reveals a Justice Department unwilling to ignore the racial discrimination in admissions that takes place in many elite schools, which have more applicants than seats. One benefit of the endeavor could be the advance of colorblind law, the only kind that makes sense in a multi-racial nation like ours.

It is worth noting that when race-based affirmative action in admissions was introduced, in the 1960s, its advocates vowed that it would be a temporary measure. Obviously, it has not been. Nor has the policy proved as beneficial to minorities as its sponsors have claimed. There are reasons to rethink affirmative action, and finally get it right with the law of non-discrimination.

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