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Justice Department increasing attacks on affirmative action in college admissions

Yale president Peter Salvoes accused the Justice Department of trying to impose a new standard that is inconsistent with the law on college admissions.
Yale president Peter Salvoes accused the Justice Department of trying to impose a new standard that is inconsistent with the law on college admissions.Bloomberg

The US Justice Department’s recent complaint that Yale University discriminated against Asian American and white applicants in its admissions process opens a new front in the Trump administration’s fight against affirmative action in college admissions, legal experts say.

The move signals the administration is expanding its attack against longstanding policies aimed at increasing diversity on campuses, they said — and growing more confident it can win.

The Justice Department’s complaint against Yale on Aug. 13 comes just a month before the agency’s attorneys are set to urge the First Circuit Court of Appeals to overturn a lower court’s ruling that Harvard University’s use of race in its admissions is legally sound.

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Taken together, the two cases suggest the Justice Department is expecting an eventual showdown over affirmative action in the Supreme Court and, with a majority of conservative justices on the bench, is expecting a favorable outcome, said Deborah Archer, an associate professor at the New York University School of Law and co-director of its Center on Race, Inequality, and the Law.

“Their intention is to get rid of affirmative action completely,” Archer said. “They have confidence in the Supreme Court. They’re moving full steam ahead.”

Richard Sander, a professor at the University of California Los Angeles School of Law who, along with a Chinese-American Republican activist, has sued the public university system in his state for information about how it admits students, concurs.

“Things are moving to a climax,” Sander said. “There are five Supreme Court Justices that have expressed skepticism about affirmative action.”

The Justice Department accused Yale of discriminating in its undergraduate admissions process by favoring Black and Latino applications at the expense of Asian Americans and white people. The findings followed a two-year investigation launched by the agency after complaints from Asian American groups.

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Under current law, colleges and universities can use race as a factor, but not the determining one, in admissions. According to its letter to Yale, the Justice Department said the university used race at multiple junctures in the admissions process. As a result, Asian Americans and white people have only one-tenth to one-fourth the likelihood of admission to Yale as Black applicants with similar academic credentials, the Justice Department alleges.

Yale must agree to stop using race in its upcoming admissions cycle or submit a detailed explanation of how it plans to use race in a limited way, the Justice Department said in its letter. If Yale fails to agree to those conditions by the end of the month, the Justice Department has threatened to sue the university.

Yale president Peter Salovey has called the allegations baseless and accused the agency of trying to impose a new standard that is inconsistent with the law.

“Yale College will not change its admissions process,” Salovey said in a message to the Yale community.

Yale received almost 37,000 applications for admissions last year and enrolls slightly more than 1,550 freshmen. Last year, about 12 percent of the freshmen class were Black, 15 percent were Hispanic, 26 percent were Asian American, and 49 percent were white. Students can list more than one ethnicity.

Yale, with its $30 billion endowment, can afford to wage a legal battle to defend its admissions process, but less wealthy institutions may become increasingly wary of using race in their admissions if they fear action from the Justice Department, Archer said.

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Last year, the Texas Tech University agreed to stop using race in admissions for its medical students after the Department of Education began investigating a complaint filed by an anti-affirmative action group.

The Justice Department “is sending a message,” said Angela Onwuachi-Willig, dean of the Boston University School of Law.


Opponents of affirmative action are trying to illustrate that race-conscious admissions is a widespread problem, and not just an issue at Harvard, she said.

Students for Fair Admissions, which brought the lawsuit against Harvard, has also challenged the admissions process at the University of North Carolina Chapel Hill. The UNC case is awaiting trial.

The high court is generally reluctant to take up the same issue again in a short time span, legal experts say, and the last affirmative action decision is just 4 years old.

But if the Justice Department files a lawsuit against Yale, it offers another example and could prompt the Supreme Court to take up the issue more quickly, Onwuachi-Willig said.

In 2016, the Supreme Court upheld the use of race-conscious admissions, in a case brought by Abigail Fisher, a white student who was denied a seat to the University of Texas Austin.

Edward Blum, leader of Students for Fair Admissions, who backed Fisher in the Texas case and is suing Harvard, applauded the Justice Department’s letter to Yale.

“We hope that the Department will file a lawsuit against Yale to enforce our nation’s civil rights laws in the event the school fails to comply with the terms DOJ has set forth,’' Blum said in a statement. “Yale must be taken to court.”

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Students for Fair Admissions has also filed a Freedom of Information Act request with the Justice Department seeking the Yale admissions data and documents. Blum has suggested that the information could be similar to what the group received in the Harvard case.

Blum and his organization had alleged that Harvard’s admissions policies were unfair to Asian American students, who performed well academically and participated in many extracurricular activities but received poor personal scores from the university’s screeners. The case relied heavily on statistics and analysis of Harvard’s admissions data.

But US District Court Judge Allison Burroughs was unconvinced and ruled that Harvard’s admissions process was “legally sound.”

The First Circuit Court of Appeals will hear oral arguments in that case on Sept. 16.

Harvard declined to comment on whether the Justice Department’s move against Yale would have any impact on its case.

The Justice Department declined to comment further about its findings against Yale.

Sander, the UCLA professor, said that the Justice Department seems to have done a similar statistical analysis of Yale’s admissions data that Students for Fair Admissions did in the Harvard case. That could help the group if the federal government is following its lead, Sander said.

“I don’t think it’s transformative, but it’s helpful,” Sander said. “It’s another stick in the pile, it adds a little bit of weight to the argument.”

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Deirdre Fernandes can be reached at deirdre.fernandes@globe.com. Follow her on Twitter @fernandesglobe.