Jeff Sessions Backs Asian Students in Landmark Harvard Racial Discrimination Lawsuit

The Department of Justice (DOJ) filed a 40-page Statement of Interest in support of Students for Fair Admissions’ (SFFA) lawsuit against Harvard University on behalf of Asian students who claim they were discriminated against in their bids to attend the prestigious college.

“No American should be denied admission to school because of their race. 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,” Attorney General Jeff Sessions wrote as his department announced its filing on behalf of the U.S. Government.

“Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans,” DOJ’s brief argues. “To the contrary, the record evidence demonstrates that Harvard’s race-based admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups—including both white applicants and applicants from other racial minority groups.”

The class-action lawsuit, backed by more than 60 Asian-American organizations, alleges Harvard systematically kept the number of Asian students admitted artificially low, including, most egregiously, but assigning the lowest possible “personality score” to applicants simply because of their Asian ethnicity.

It has the potential to be the most significant case on race-based admissions since 2013’s Fisher v. University of Texas and its 2016 follow-up, which upheld Texas’s race-based bias against a white student in favor of equally or less qualified Black and Hispanic students on the basis of the state’s interest in encouraging “diversity” among its incoming university classes. Fisher followed decades of federal court battles over “affirmative action” and other efforts to use race as a factor in admissions decisions.

Race-based practices are, under the U.S. Constitution’s Equal Protection Clause, held to “strict scrutiny,” meaning to be upheld there must be no other way the state can reach a recognized, important goal — in this case diversity. Harvard, while a private institution, is held to similar standards because of its participation in federal student loan and grant programs.

As the DOJ brief notes, “The American public funds Harvard College (“Harvard”) at a cost of millions of taxpayer dollars each year. With every taxpayer dollar that it accepts, Harvard promises not to discriminate “on the ground of race, color, or national origin” in “any program or activity receiving Federal financial assistance.”

Sessions, in his statement, says that Harvard’s race based practices fall well short. “[T]he Justice Department has determined that Harvard—while using race to make admissions decisions for more than 45 years—has never seriously considered alternative, race-neutral ways to compile a diverse student body, which it is required to do under existing law,” he writes.

First filed in 2014, Students For Fair Admissions, Inc. v. President And Fellows Of Harvard College shifts the focus to Asian college applicants who often face the most severe race-based barriers to entry, even compared to white students. It has steadily gained prominence as proponents of race-neutral admissions and affirmative action lined up on opposite sides of the lawsuit. After the plaintiffs gained access to discovery last year, the lawsuit shot into the headlines, with prominent legal experts weighing in on its merits.

Particularly advantageous for the SFFA’s case were internal Harvard documents showing that the university assigns applicants “personality” scores and was consistently rating well-qualified Asian applicants with poor scores, preventing their admission.

The DOJ’s brief slams Harvard on this practice. “Harvard admits that, on average, it scores Asian-American applicants lower on the personal rating than white applicants,” it argues. “Yet when an internal Harvard report pointed out that the personal rating may be infused with racial bias and sought authorization to study the issue further, Harvard buried it.”

“Students for Fair Admissions is gratified that, after careful analysis of the evidence submitted in this case, the US Department of Justice has concluded Harvard’s admissions policies are in violation of our nation’s civil rights laws,” SFFA President Edward Blum said in a statement responding to the filing. “We look forward to having the gravely troubling evidence that Harvard continues to keep [redacted] disclosed to the American public in the near future.”

Standing against the SFFA and the Justice Department and in Harvard’s corner is the American Civil Liberties Union (ACLU), which, in addition to assisting Harvard’s legal team, filed an amicus brief before the court in favor of racial bias in education. The brief argues:

The mere consideration of race in order to achieve a diverse student body does not conflict with the principles of equal protection, so long as it is narrowly tailored, as the Supreme Court’s affirmative action cases demonstrate. … To prohibit any consideration of race in holistic review would undermine equality, impede integration and inclusion, and deny the relevance of applicants’ individual experiences of race to the diversity of a student body.

A coalition of mostly race-based Harvard alumni groups describing themselves as “25 Harvard student and alumni organizations comprised of thousands of Asian American, Black, Latinx, Native American, and white Harvard students, alumni (including some who are parents of current Harvard students and prospective applicants), faculty, and alumni interviewers” also filed a brief in opposition to the SFFA’s lawsuit.  According to the brief, they “wish to ensure that Harvard provides students with the critically important benefits of diversity and continues to consider race as one of many factors in its holistic admissions process.”

These groups make clear that their primary concern is that not discriminating on the basis of race will benefit white people, who, by the brief’s own statistics are already significantly underrepresented in Harvard’s freshman class (40 percent compared to roughly 62 percent of the American population and 80 percent of Massachusetts by the latest census estimates). “Not only would SFFA’s remedy – eliminating all signs of race from the admissions process – fail to redress the alleged discrimination, it would itself have an acute, foreseeable, and racially discriminatory disparate impact on applicants of color while giving an unjustified boost to white applicants,” the introduction to their arguments reads.

The brief goes on to argue that the SAT and ACT standardized tests are biased in favor whites and that “[e]ven when white students hailed from families with less financial resources than their Black and Latinx classmates, ‘the symbolic capital of whiteness’ relieved them from the hazards faced by their comparatively well-off Black and Latinx peers.”

The next step in the lawsuit that may one day be bound for the Supreme Court will see U.S. District Judge Allison Burroughs decide whether the case needs to go before a jury.

The case is Students For Fair Admissions, Inc. v. President And Fellows Of Harvard College, 14-cv-14176, in U.S. District Court for the District of Massachusetts.