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For Now, Federal Focus On Affirmative Action Centers On Harvard04:18Download

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Widener Library in Harvard Yard. (Joe Difazio for WBUR)MoreCloseclosemore
Widener Library in Harvard Yard. (Joe Difazio for WBUR)

In higher education as elsewhere, the new Trump administration has hinted at more change than it has brought so far.

Colleges and universities nationwide await signs of how the federal response to big campus questions from responses to sexual assaults to student loans may change in the months and years ahead.

It appeared that the practice of considering students' race while making admissions decisions — which many institutions, especially selective ones, still practice — might also be headed for a shakeup, in the name of the civil rights of white students. The New York Times reported that the Justice Department was seeking attorneys willing to investigate, and possibly to sue, over "intentional race-based discrimination" in college admissions.

But a spokesperson for the U.S. Department of Justice denied that in a statement, saying the department's attention is focused exclusively on "one administrative complaint" left over from the Obama administration. That complaint is one filed against Harvard on behalf of Asian-American applicants who were turned away from the highly selective school.

Suit Argues Harvard Holds Asian-Americans Applicants To Higher Standards

Discrimination complaints against Harvard first materialized in a 2014 lawsuit. The suit was filed by Students for Fair Admissions, or SFFA — a nonprofit organization headed by Edward Blum, the conservative legal activist at the center of many such cases.

The suit doesn't focus on the effect of affirmative action for black and Latino students on white students. Instead, it argues that Harvard's admissions team practices a kind of reverse discrimination against Asian-American applicants by holding them to a "far higher standard" of academic performance than it does other students, and in effect forcing them to compete against each other for what, it argues, is a functionally limited number of seats.

In so doing, the complaint goes on, Harvard is failing to meet standards laid out in decisions by the Supreme Court.

In a statement, Rachael Dane, a spokesperson for Harvard College, rejected that charge, saying that Harvard's admissions are both holistic and "consistent with the legal standards established" by the high court.

The statement also defended diversity in admissions, saying, "To become leaders in our diverse society, students must have the ability to work with people from different backgrounds, life experiences and perspectives."

At SFFA, attorneys like Cory Liu disagree that Harvard is on the right side of the law, and they welcome the news that Justice Department lawyers may soon join their side.

"When the federal government speaks, courts listen, courts pay attention," Liu says. He works with Blum as the volunteer executive director of SFFA.

The opponents of affirmative action were dealt a defeat earlier this year, after Fisher v. University of Texas -- another lawsuit backed by Blum — ended up before the Supreme Court for a second time.

By a 4-3 decision, the Court allowed the University of Texas to continue to consider race as it admits students, within some restrictions.

But Liu expects that, with federal support, their push at Harvard and elsewhere could fare better against policies that, he believes, are in violation of both the Constitution and common sense.

"Race is something that you're born into, right? It's not something you have any control over," he says. "Should the government be sorting us, determining [our] destiny, our educational opportunity, based on that? It's so arbitrary."

Liu is the son of Chinese immigrants. He graduated from selective institutions like the University of Chicago and Harvard Law School and says that as he applied to schools, he was conscious of how his race, in his view, worked against him. He believes colleges can assemble a diverse student body without needing to explicitly rely on race in admissions — a category which he calls "crude" and out of step with America in 2017.

"Race is something that you're born into, right? ... Should the government be sorting us, determining [our] destiny, our educational opportunity, based on that?"

SFFA attorney Cory Liu

Defending Affirmative Action As Means To 'Address Racial Inequality'

But some colleges and universities have already experimented with leaving behind race-based admissions decisions, with mixed results.

For example, in 1996, voters in California put a stop to the practice at public universities in state. Administrators say that black and Latino admissions have failed to keep pace with California's racial makeup ever since, and especially at the state's most prestigious public universities.

That is some evidence that any broader federal challenge to affirmative action could set back minority applicants to college, says Natasha Warikoo, who teaches and writes on diversity at the Harvard Graduate School of Education.

"We know what happens when you end affirmative action," she says. "[Campus] becomes a very isolating experience for someone who is black or Latino."

Like administrators at her home institution, Warikoo supports affirmative action by citing possible advantages that a diverse campus can confer on students of all races. But she adds that the policy was designed to serve a different, reparative purpose, to begin to counteract the inequality of educational access by race in America.

Race-based admissions decisions were designed, she says, "as a mechanism, one small means by which we address racial inequality in American society."

It remains to be seen whether and how the federal government will intervene in the litigation over race-based decisions at Harvard. It's safe to say that even past that point, the bigger question — of how to promote fairness and equality in college admissions — will linger on, unresolved.

This segment aired on August 3, 2017.

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Max Larkin is a multimedia reporter for Edify, WBUR's education vertical.

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