The government says there is evidence strongly suggesting that Harvard may be engaging in ‘racial balancing.’
The lawsuit claiming that Harvard College discriminates on the basis of race is scheduled to be heard starting on October 15. I wrote the piece below for The Weekly Standard, praising the Justice Department for filing a Statement of Interest in the case. As the date approaches the department may add to its filing. There is a lot to be tried, as I point out in the article. If it reaches the Supreme Court, the case could generate a landmark decision.
The Justice Department didn’t have to get involved in the private lawsuit brought against Harvard College alleging racial discrimination in admissions. But perhaps the department decided it could wait no longer, given what it already had learned about the school’s admissions process. Harvard is going to have a hard time defending it.
The case arose four years ago when a group of students opposed to racial preferences sued Harvard, claiming that the college is biased against Asian-American applicants in particular. The trial in Students for Fair Admissions v. Harvard is set to begin on October 15 in the federal district court in Boston.
Earlier this summer Harvard asked the court to grant its motion to have the case dismissed. And now Justice has filed “a statement of interest” opposing that request. Justice is in the case, you could say, as a protector of a government interest—the enforcement of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance. And this assistance, not incidentally, Harvard receives, thereby obligating it not to discriminate.
There is nothing unusual about statements of interest. Authorized by Congress, they have been used by attorneys general of Democratic as well as Republican administrations, with the interests at stake involving national security and, more recently, civil rights. Doubtless to the consternation of legal progressives, the current attorney general, Jeff Sessions, has added free speech and religious liberty to this growing list of interests, having entered such statements in at least four First Amendment cases in the past year.
Filed in cases in district courts, statements of interest don’t reach the merits, and Justice’s statement in SFFA doesn’t, though it’s not hard to predict which side the department would take in the case if it went up on appeal to the First Circuit or the Supreme Court. The statement argues that the case raises serious issues that must be tried—and not dismissed. The department filed the statement having had access to relevant information from its own ongoing probe of admissions at Harvard and also to the complete record developed by the parties in the SFFA litigation.
Harvard acknowledges that it voluntarily uses race as a factor in admissions and says it does so in pursuit of “the educational benefits of diversity,” which it regards as a “compelling interest.” At issue is whether Harvard’s use of race is illegal under Title VI and the Constitution. The Supreme Court has said that racial classifications must satisfy “strict scrutiny,” the most stringent test there is. Thus, racial classifications are illegal unless they are “narrowly tailored” to attain a compelling interest.
The statement of interest says that Harvard “has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans. To the contrary, the record evidence demonstrates that Harvard’s race-based admissions process significantly disadvantages Asian-American applicants.” In sum, Harvard has failed to satisfy strict scrutiny by showing that its use of race is narrowly tailored to achieve a compelling interest.
In support of that assessment, the statement of interest cites evidence showing that Harvard, while providing at least three points in the admissions process where race may be taken into account, has “no meaningful criteria to cabin its use of race.” The school has not said, for example, what it means “to provide a slight tip for some students”—as one admissions officer has described the use of race. The size of the preferences and whether they harm the chances of Asian-American applicants are among the issues that need to be resolved through a full trial, argues the statement.
The statement also notes evidence both “direct and circumstantial” that the process takes race into account in assigning a “personal rating,” one of four “profile” ratings given to applicants, and one often influential in deciding whom to admit. Justice says that the personal rating correlates against admitting Asian-American applicants and “may be infected with racial bias.” Harvard says it does not take race into account in scoring the rating. Here are more issues, in the government’s view, that should be resolved through a full trial.
Noting that the Supreme Court has condemned the use of quotas in admissions programs as illegal, the government says there is evidence strongly suggesting that Harvard may be engaging in “racial balancing” in order to limit the number of Asian-American students when it chooses a class. Racial balancing is more or less the same as a quota and thus presumptively illegal. Harvard denies that it purposely seeks a racially balanced class, but the numbers admitted year to year for every major racial group have barely moved. Here again, in the government’s view, there are issues that warrant a trial.
There is yet another argument for trial that the government makes—that there is evidence suggesting that Harvard has no intention of ever stopping the use of race in its admissions decisions. The unending use of race in admissions is not what the Supreme Court imagined when, in the 1978 Bakke case, it first ruled on the matter. Over the years it has set forth means of limiting and indeed ending the use of race. But from the statement of interest it appears that Harvard has rarely if ever been interested in ending the use of race in admissions. “It has never engaged in the serious, good-faith consideration of race-neutral alternatives for achieving its diversity-related goals.”
Harvard’s interest is Harvard, and it treats Title VI as though it were a set of suggestions about the use of race in admissions that need not be taken seriously. But a trial would be a serious matter, and on the issues in the case it is not obvious that mighty Harvard would prevail.
The Justice Department deserves credit for getting into the case by filing a statement of interest that makes a compelling case for a trial. The story of the litigation so far has been about the skirmishing between the parties. It could end in the Supreme Court as a landmark case confirming Title VI as an important bulwark against racial discrimination.
