from the New York Times

Justice Dept. Accuses Yale of Discrimination in Application Process

The Trump administration said the university discriminated against Asian-American and white applicants. Yale defended its practices and vowed to maintain them.

by Anemona Hartocollis, Aug. 13, 2020

The Justice Department on Thursday accused Yale University of violating federal civil rights law by discriminating against Asian-American and white applicants, an escalation of the Trump administration’s moves against race-based admissions policies at elite universities.

The charge, coming after a two-year investigation, is the administration’s second confrontation with an Ivy League school; two years ago, it publicly backed Asian-American students who accused Harvard in a lawsuit of systematically discriminating against them.

The department’s finding could have far-reaching consequences for the ongoing legal challenges to affirmative action, which are expected to eventually reach the Supreme Court. Some conservative groups have long opposed affirmative action, a tool born in the civil rights era, and a handful of states have banned such policies at public universities.

“There is no such thing as a nice form of race discrimination,” Eric S. Dreiband, the assistant attorney general for the civil rights division, said in a statement announcing the Justice Department’s move against Yale. “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness and division.”

The Justice Department said that Yale had violated Supreme Court rulings on affirmative action by using race not as one of many factors in deciding which applicants to invite to the freshman class, but as a predominant or determining factor in admissions — an effect that was multiplied for competitive applicants.

It directed Yale to suspend the consideration of race or national origin in admissions for one year, at which time the university would need to seek clearance from the government to begin using race as a factor again, the department said.

Yale pledged to fight the order, saying Thursday that it would hold fast to its admissions process. In a statement, the university said that it looks at the “whole person” when deciding whether to admit a student — not just academic achievement, but interests, leadership and “the likelihood that they will contribute to the Yale community and the world.”

“The department’s allegation is baseless,” said Peter Salovey, Yale’s president. “At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.”

The Justice Department’s action comes about a month before arguments are set to be heard in the appeal of the case challenging Harvard’s admissions practices. The timing is so close that the department’s finding is likely to color the debate both inside and outside of the courtroom.

Initially filed in 2014, the Harvard case rests on many of the same complaints that the Justice Department leveled against Yale. It argued that Harvard’s admissions process amounted to an illegal quota system, that classes were racially balanced, and that Harvard favored Black and Hispanic applicants at the expense of Asian-Americans, who were held to a higher standard.

Harvard won the case in district court, with a judge finding that the university had not intentionally discriminated against Asian-Americans. A Justice Department effort to enforce its order against a defiant Yale might result in something of a rerun of the Harvard lawsuit.

Mr. Dreiband, the assistant attorney general, said the evidence in the civil rights division’s investigation indicated that Yale was racially balancing its classes by admitting similar proportions of each major racial group year after year, and that it had not made a serious effort since at least the 1970s to find another way of building a diverse student body.

“Our investigation indicates that Yale’s diversity goals appear to be vague, elusory and amorphous,” he said in a four-page letter explaining the department’s finding.

While some applicants — mainly African-American and Hispanic students — were favored by Yale because of their race and ethnicity, others were disfavored, Mr. Dreiband said, and it was mainly Asian-American and white applicants who were “unduly bearing the brunt of the preferences.”

Edward Blum, president of Students for Fair Admissions and the architect of the lawsuit challenging admissions practices at Harvard, portrayed the Justice Department’s finding as a first step in unraveling affirmative action across the world of selective colleges.

“All of the Ivy League and other competitive universities admit to using racial classifications and preferences in their admissions policies,” Mr. Blum said in an email. “This investigation reinforces the need for all universities to end race-based admissions policies.”

Rachel Kleinman, senior counsel at the NAACP Legal Defense and Educational Fund, which will be arguing in support of Harvard’s admissions policies before the appeals court next month, said she was “shocked but not surprised” by the Justice Department’s finding.

“This particular Department of Justice has been laser-focused on ending affirmative action,” she said, adding that she believed the department’s finding was “a foregone conclusion before they started their investigation.”

Despite the district court judge’s rejection of similar arguments in the Harvard case, she said, “They’re sticking with the analysis that any use of race is racism and insidious.”

The Ivy League schools are unapologetic about their use of race and ethnicity as a factor in admissions. On the contrary, the system the Trump administration is attacking is one that Yale, Harvard and others point to with pride, and that has become a national model.

Harvard has argued in a district court brief that while it sets no quotas, if it wants to achieve true diversity, it must pay some attention to the numbers of students it admits of different racial and ethnic backgrounds. The university has also said that abandoning race-conscious admissions would diminish the “excellence” of a Harvard education.

Likewise, Yale officials say that there is nothing mechanical about the school’s admissions process. They read 35,000 applications a year in their entirety, and race is one of hundreds of data points, they said. The university noted that of the students who enrolled last fall, 26 percent were Asian-American.

The Supreme Court over the years has generally upheld the principle behind affirmative action, within limits, including as recently as 2016. In a 1978 decision, Justice Lewis F. Powell articulated the rationale for efforts to improve academic diversity, writing, “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.”

The Justice Department’s finding against Yale specifically accuses the university of violating Title VI of the Civil Rights Act of 1964, which the school is required to comply with as a condition of receiving millions of dollars in taxpayer funding.

Legal experts said it would be extraordinarily rare, if not unheard-of, for the government to cut off federal funding to a university, and they noted that the Justice Department did not explicitly propose doing so in its finding against Yale. Instead, it would attempt to enforce its directive via a lawsuit if Yale does not voluntarily agree by Aug. 27 to suspend the use of race in undergraduate admissions.

The Trump administration began its investigation of Yale after a group called the Asian American Coalition for Education filed a complaint accusing the university of discriminatory practices.

On Thursday, Swan Lee, a co-founder of the group, called the Justice Department’s decision “a breath of fresh air for a lot of Asian-American parents” who see their children being held to a higher standard than some other groups in the college admissions process.

“It feels great to finally have our existence be recognized by the government,” she said.

Kate Taylor contributed reporting.