The Supreme Court upheld an affirmative-action program at a public university just last year, but yesterday Jeff Sessions’s Department of Justice announced that it was looking into a complaint that raises the question once again.
The developments began on Tuesday evening, when The New York Times claimed it had obtained an address to the Department of Justice’s Civil Rights Division calling for lawyers to work on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” Shortly after that, The Washington Post published the job posting. The Times suggested that the Department of Justice was redirecting resources to investigate—and possibly sue—universities and colleges that they believed had discriminated against white students.
By late Wednesday afternoon, the Department of Justice released a statement calling the Times reporting inaccurate. “The posting sought volunteers to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior Administration left unresolved,” said Sarah Isgur Flores, a spokesperson for the DOJ. “The complaint alleges racial discrimination against Asian Americans in a university’s admissions policy and practices.” The student coalition targeted Harvard in its complaint, but because a similar lawsuit had already been filed in federal court, it was dismissed in July 2015 by the Department of Education.
Despite the DOJ’s statement, The Washington Post reported that “two people familiar with discussions in the Civil Rights Division said that the announcement came after career staffers who specialize in education issues refused to work on the investigation out of concerns that it was contrary to the division’s long-standing approach to civil rights in education.”
The Department of Justice declined to comment to The Nation about whether there are current investigations into institutions of higher learning for alleged discrimination against white applicants, or whether the Department has received complaints by aggrieved white college applicants.
Anurima Bhargava, who was chief of the Education Opportunities Section at the Department of Justice under President Obama, said it is “peculiar, at best, to post a detail position” to the office of the assistant attorney general over a complaint that has already been dismissed by the Department of Education. “In my mind the only remaining question would be whether the Department of Justice wants to participate in the federal case that’s still pending.”
It’s not clear how the DOJ plans to move forward with its investigation, or whether it plans to carry out a lawsuit, but Dennis Parker, director of the ACLU’s Racial Justice Program, is worried about the pressure this will put on colleges and universities with affirmative-action programs. “The thing that is worrisome is that, of course these programs are not mandatory,” he said. “I am hopeful that commitment to them is strong and because the law is clear, that it is legal, they will continue to use carefully crafted programs that take race and ethnicity and similar factors into consideration.”
Created by the DOJ in 1957 as part of the Civil Rights Act, the Civil Rights Division is tasked with protecting the rights of all Americans—but especially those who are most vulnerable. Notably, the division is charged with enforcing Title IV of the Civil Rights Act, which prohibits discrimination on basis of race, color, national origin, sex, and religion in public colleges and universities. “The section has a long history of trying to ensure that institutions across this country are not segregated. The goal is to provide equal educational opportunities to all students and to make sure that no particular group is excluded from those kinds of opportunities in our public institutions,” said Bhargava. But going after affirmative action only moves us further from this ideal.
Dennis Parker stresses that affirmative action creates diversity that benefits everyone, including those who have been left out as well as those who have not. “Civil-rights laws were passed because there were groups of people who were systematically discriminated against over the history of the country. One of the demonstrations of the impact of that systematic discrimination is that institutions of higher educations were essentially segregated.” Affirmative action is a fix, and one that has been upheld by the Supreme Court in two major cases: at the University of Michigan in 2003, and more recently at the University of Texas. “You have the Supreme Court saying you can take account of race as a factor to promote a racially diverse student body,” said Bhargava, “so I don’t understand why this is something that would become a priority, given that there have been multiple recent affirmations by the Supreme Court.”
There is also the question of process. When a complaint comes in at the Civil Rights Division, Bhargava said that a lawsuit is generally a last resort. After an investigation has been concluded, the DOJ tries to ameliorate the concerns by other means. “Maybe it’s reaching out to the school and saying these are the kinds of concerns we have about how your process is set up and we’d like to be able to resolve that,” said Bhargava, who served in the Civil Rights Division from 2010 to 2016 and is now a fellow at the Open Society Foundation. The complaint can often be resolved with a resolution agreement or consent decree, she said, and lawsuits are typically filed only if there is no other way to fix the problem. “It’s pretty rare for there to be a case filed in federal court by the DOJ based on a complaint that was received,” she said.
So, if the goal is to resolve problems without lawsuits, then why does the DOJ’s letter raise the possibility of litigation? It’s simple: The right has long had it out for affirmative action.
In 1997, then-Senator Jeff Sessions told the Senate Judiciary that affirmative action had “been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race.”
The Coalition of Asian American Associations, the group of students who brought the complaint, alleged that they have “increasingly experienced discrimination in the admissions process,” arguing that they were “unfairly rejected” from Harvard. But for the first time, Harvard has an incoming class that is majority nonwhite, including 22 percent who identify as Asian. “Harvard’s admissions process considers each applicant as a whole person, and we review many factors, consistent with the legal standards established by the US Supreme Court,” a spokesperson for the University told The Boston Globe. “The law is clear that universities and colleges can take steps to promote a racially diverse student body. Period. That’s the law,” said Bhargava. And it appears as though Harvard is doing just that.