In a major boost for a group of Asian Americans suing Harvard University over its affirmative action admissions policy, the Trump administration on Thursday signaled its support of a federal lawsuit against the university and contended that it illegally discriminates against Asian applicants in favor of whites.
The move by the Justice Department is the latest sign in what many civil rights groups contend is the administration’s mounting attack on long-standing practices in which Harvard and other universities have used race as a factor in choosing who attends elite public and private schools.
The suit, filed by Students for Fair Admissions on behalf of Asian Americans who have been rejected from Harvard, is seen as a bellwether case that could reach the Supreme Court and potentially reshape affirmative action at America’s universities and colleges.
Students for Fair Admissions unsuccessfully fought the University of Texas in an affirmative action case two years ago that was ultimately decided in the Supreme Court.
In a filing Thursday in a Massachusetts federal court, Justice Department lawyers said Harvard illegally tries to “racially balance” its students, including using subjective personality ratings that give Asian Americans with otherwise stellar applications lower scores.
Though the filing does not mean the department is joining the lawsuit, it does give greater weight to the case.
Harvard, which has asked the court to dismiss the case, has denied discriminating against Asian Americans. Students for Fair Admissions in June released an analysis of Harvard admissions data criticizing its use of considering traits such as “likability” and “kindness” in compiling personality scores. Harvard said the study was flawed and did not fully account for its complicated admissions process.
"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 in a statement.
In a statement outlining Thursday’s court filing, Atty. Gen. Jeff Sessions said the department was stepping in to “protect the civil rights of the American people.”
“No American should be denied admission to school because of their race,” Sessions said. “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 admissions policies at our colleges and universities are important and must be conducted lawfully.”
The issue has sharply divided Asian Americans — particularly between Chinese Americans and other Asian groups. Support for race-based preferences has plummeted among Chinese Americans, from 78% in 2012 to 41% in 2016, according to surveys by AAPI Data, a program based at UC Riverside that collects demographic data and conducts policy research on Asian Americans and Pacific Islanders.
Support for affirmative action remained unchanged at 73% among other Asian American groups during that same period, the surveys found.
Nicole Ochi, an attorney with Asian Americans Advancing Justice-Los Angeles, said Chinese language social media platforms such as WeChat have stirred opposition against affirmative action. She said “flat-out lies” have been posted, such as assertions that half of Asian Americans will get expelled from universities if affirmative action is brought back in such states as California, which banned public institutions from discriminating on the basis of race, sex or ethnicity with the passage of Proposition 209 in 1996.
Ochi said her organization supports Harvard’s claim that it is not intentionally discriminating against Asian Americans and believes that race-based admissions policies are legal. Although her nonprofit does not support racial quotas, it believes race should be one of many factors allowed in an admissions process that takes a broad and holistic view of an applicant’s background.
“The reality is that racism and segregation continues to limit educational opportunities … for students of color,” Ochi said. “Asian Americans need to work with counterparts in the African American and Latino communities to increase diversity and reduce bias in schools and workplaces.”
Since California’s ban on affirmative action took effect, the proportion of Asian Americans among admitted freshmen has slightly declined overall at University of California schools. The percentage of Asian Americans among UC Berkeley’s admitted freshmen grew from 33.6% in fall 1996 to 40.5% in fall 2017. But it declined at UCLA and UC San Diego to about 35% last fall after surpassing 40% in 2009.
UCLA has increased its proportion of African Americans and other underrepresented minorities despite Proposition 209 using aggressive outreach and recruitment. Under UC’s “holistic” admissions process, applicants are evaluated on 14 factors including grades, standardized test scores, high school coursework, special talents and academic achievement despite low income and other hardships.
The Justice Department’s move follows several developments on affirmative action under Sessions that have taken it in the opposite direction of his predecessors in the Obama administration.
Last month, the department rescinded Obama-era guidelines encouraging the use of race to determine admission to educational institutions and suggested race-neutral policies were better. The removal of the guidelines, which the department said was part of a wider effort to cut down government regulations, reinstated ones used under President George W. Bush.
Last year, the department also opened a separate investigation into allegations against Harvard’s affirmative action policies that were raised in a lawsuit filed by a coalition of Asian American groups in 2015. That investigation is pending.
“This is a Justice Department that has fully abandoned its mission and is now waging an all-out assault on efforts to promote diversity,” said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law, in a statement Thursday. Although the case focuses on allegations of discrimination against a minority group, it could establish precedent affecting affirmative action practices across the board.
“At the heart of this case is the unjustified presumption that test scores alone entitle a student admission to Harvard, and the unsupported allegation that race drives admission decisions,” Clarke added.
Edward Blum, president of Students for Fair Admissions, said he welcomed the Justice Department’s support.
“Students for Fair Admissions is gratified that, after careful analysis of the evidence submitted in this case, the U.S. Department of Justice has concluded Harvard’s admissions policies are in violation of our nation’s civil rights laws,” he said in a statement.
For years, affirmative action has been one of the most contentious issues in education in this country. The Supreme Court has upheld it several times, most recently in 2016, but the Harvard case — if it advances to the high court — could test it once again.
Supporters often point to studies showing that diverse schools lead to better outcomes for students of all races. Opponents frequently say students should be judged on merit alone and that affirmative action is a form of discrimination.
The retirement of Supreme Court Justice Anthony M. Kennedy has left civil rights groups worried about the fate of affirmative action. Kennedy wrote the 4-3 majority opinion upholding the University of Texas admissions program’s support of affirmative action in a 2016 case in which a white woman said she was not admitted in part because the school accepted members of minority groups.
President Trump’s nominee to replace Kennedy, federal appeals court Judge Brett Kavanaugh, has not weighed in explicitly on affirmative action in previous cases. Yet, groups that oppose his nomination, including the National Assn. for the Advancement of Colored People and the Leadership Conference on Civil and Human Rights, have raised concerns over how he would rule on a variety of issues, including admissions practices that consider race.