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Harvard could find an ally in the DOJ under Biden

The Justice Department, during Trump’s presidency, had supported the group that brought the lawsuit against Harvard alleging it had discriminated against Asian-American applicants.Adam Glanzman/Bloomberg

As the Harvard University case on use of race in college admissions approaches the US Supreme Court, a onetime foe of the school is likely to become an ally.

Legal scholars expect the US Justice Department under President Biden will back Harvard in its case and more broadly support longstanding policies to increase diversity on college campuses — a reversal from the Trump administration, which was bent on changing the law.

Quick action by the agency last week, less than a month after Biden’s inauguration, to drop the lawsuit alleging that Yale University illegally discriminated against Asian-American and white applicants offers a signal of what will likely happen in the Harvard case, experts said.


Under the Trump administration, the use of race in college admissions had been under attack with efforts by both the Justice Department and the US Department of Education to curb the practice.

“I would expect the Biden administration would take a 180-degree turn,” said Jonathan Feingold, an associate professor at the Boston University School of Law.

The Justice Department, during Trump’s presidency, had supported Students for Fair Admissions, which brought the lawsuit against Harvard alleging that it had discriminated against Asian-American applicants. Agency lawyers last year even urged the First Circuit Court of Appeals to overturn a lower court ruling that Harvard University’s use of race in its admissions was legally sound.

The appeals court had rejected that argument and affirmed that Harvard did not discriminate against Asian-American applicants and it appropriately used race to achieve a diverse undergraduate class.

Now, the case is likely to land before the US Supreme Court.

Students for Fair Admissions has until the end of April to ask the justices to review the case and plans to do so in the coming weeks, said Edward Blum, who heads the organization.


“It is our hope that the Court will strike down racial preferences in college admissions at all colleges and universities,” Blum said in a statement.

Just four justices need to support a review for the court to take up the case.

The Justice Department declined to comment on the Harvard case. And Harvard declined to comment on what impact the Justice Department’s withdrawal in the Yale case could have on its legal battle.

But even if the Biden administration supports Harvard’s case, the future of affirmative action is perilous, legal scholars said.

The Supreme Court now has a six-member conservative majority, and whether even the US solicitor general can sway enough justices to preserve affirmative action is in doubt, experts said.

Liliana Garces, an associate professor at the University of Texas at Austin whose research focuses on affirmative action and college admissions, said if the Justice Department supports Harvard, it should carry some weight and reinforce the need for race-conscious admissions.

“It’s a very important signal to the justices that decades of precedent on this topic should remain. It would give more credence to the substantive issues,” Garces said.

But the desire by many justices to overturn affirmative action may outweigh any arguments from the government, said Michael Klarman, a Harvard law professor.

“I think the days are past in which a Republican-dominated court cares what a Democratic administration Justice Department thinks,” Klarman said.

“My guess is that the Harvard case will appeal very much to the conservative justices” who want to overturn the current law, he said.


Still, the effort to do away with race-conscious admissions could face political roadblocks in the Supreme Court, Klarman said.

With the presidency and Congress in Democratic control and progressive activists pushing to expand membership to the Supreme Court, Chief Justice John Roberts, a conservative, may be reluctant to immediately take on the issue of affirmative action and spark a backlash, Klarman said.

Roberts “is thinking all the time about protecting the court from possible Democratic retaliation,” Klarman said.

For now, though, the Biden administration’s support for diverse campuses, and the use of race as one factor in admissions, will give colleges the backing they need to keep their current affirmative action practices in place, Feingold said.

Colleges want to avoid potential lawsuits and investigations by federal agencies, so some may have avoided using race as a factor in admissions, even though it is legal, to avert conflicts during the Trump presidency, Feingold said.

“If you have a DOJ that is aggressively attacking admissions practices … it’s going to lead institutions to abandon the use of race, even if using it is lawful and even if they would win in court,” Feingold said. “I think there’s practical effect.”

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