Justice Department Sides With Asian-American Students Suing Harvard In Affirmative Action Case

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Rowers paddle down the Charles River near the campus of Harvard University in Cambridge, Mass., Tuesday, March 7, 2017. (Charles Krupa/AP)
Rowers paddle down the Charles River near the campus of Harvard University in Cambridge, Mass., Tuesday, March 7, 2017. (Charles Krupa/AP)

The U.S. Department of Justice is throwing its support behind a group of Asian-American students suing Harvard University in a high-profile case over the elite school's affirmative action policies and admissions processes.

On Thursday, the Justice Department filed a brief in Boston federal court backing Students for Fair Admissions — the group representing Asian-American applicants rejected by Harvard — in its request to have its 2014 lawsuit go to trial. The trial is set to begin in October.

The DOJ argued that because Harvard is keeping "close tabs" on the racial composition of its incoming class — and because Harvard compares that class to prior years — it's "engaging in unlawful racial balancing."

The U.S. Supreme Court does not allow colleges to set quotas, and no evidence has been presented that Harvard uses quotas.

Still, the Justice Department cited a nearly unchanging racial makeup of Harvard’s incoming classes between 2014 and 2017 as evidence the school deliberately tries to fix the racial demographics of its student body through its admissions policies.

"I think the Justice Department filed today's brief because they are very interested in teeing up the next challenge to affirmative action before the Supreme Court," said Vanita Gupta, who headed the Justice Department's civil rights division in the Obama administration.

Others also question the Justice Department's intentions in filing its so-called "Statement of Interest."

The filing "shows the Department of Justice is not actually interested in investigating and ferreting out any discrimination against Asian-Americans," said Nicole Ochi, an attorney with Asian Americans Advancing Justice, a group siding with Harvard. "Instead, it's only interested in eradicating the use of race as a plus factor to benefit minorities in the admissions process."

Ochi says if the Justice Department was interested in whether Harvard is excluding Asian-Americans, it would be comparing how well they do in admissions compared to white applicants.

The Supreme Court allows colleges to consider race when they are trying to include members of a race in admissions in order to form diverse college campuses. But it can't have an outsized impact.

Ochi says the evidence in the Harvard case shows race affects less than 1 percent of admissions decisions. Colleges may not give applicants points for their race. There's no evidence Harvard has done that. Colleges also can't compare members of one race only to those of another. There's no evidence Harvard has done that, either.

"What Harvard is doing here is to, in line with the Constitution, create and have and practice admissions policies that ensure a diverse class, that look at the whole of a person, and look at the class as a whole," Gupta said, "to make sure that the class is representative of the country we are today, and is preparing students for the future — and the future is one of diversity."

Harvard declined to answer questions about the case.

The Justice Department has not responded to a request for comment.

This segment aired on August 30, 2018.


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Fred Thys Reporter
Fred Thys reported on politics and higher education for WBUR.



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