U.S. Attorney General Jeff Sessions. (Photo: Diego M. Radzinschi / ALM)

Harvard College's use of race in its admissions policies unconstitutionally discriminates against Asian-American student applicants, the U.S. Justice Department said Thursday as the government embarked on a new litigation stance under the leadership of U.S. Attorney General Jeff Sessions.

The Justice Department, filing a statement of interest in the Massachusetts case Students for Fair Admissions v. President and Fellows of Harvard College, said the 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 government accused Harvard of having “no meaningful criteria to cabin its use of race; uses a vague 'personal rating' that harms Asian-American applicants' chances for admission and may be infected with racial bias; engages in unlawful racial balancing; and has never seriously considered race-neutral alternatives in its more than 45 years of using race to make admissions decisions.”

Harvard's lawyers at Wilmer Cutler Pickering Hale and Dorr, led by partner Seth Waxman in Washington, contend the university does not discriminate against Asian-American students.

“The evidence fails to show—let alone beyond dispute—that Harvard could achieve its educational objectives without considering race,” Waxman wrote in a brief in July. He continued: “Harvard's conclusions—that race-neutral alternatives would not allow it to achieve the educational benefits of diversity that are required to meet its pedagogical goals—are straightforward and unassailable.”

Harvard's admissions officers “carefully consider each applicant in his or her entirety, seeking a full picture of the whole person in context,” wrote Harvard's lawyers, who also include Wilmer partners Debo Adegbile and William Lee.

The government's brief was filed by the Justice Department's civil rights division, led by an acting leader, John Gore, a former Jones Day partner who joined the Trump administration last year. The Trump administration's civil rights nominee, Eric Dreiband, currently a Jones Day partner, is awaiting Senate confirmation. The United States has a pending independent Title VI investigation into whether Harvard's admissions policy is discriminatory, the government said in a court filing Thursday.

“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,” Sessions said in a statement Thursday. “The Department of Justice has the responsibility to protect the civil rights of the American people. This case is significant because the admissions policies at our colleges and universities are important and must be conducted lawfully.”

Students for Fair Admissions, a group of plaintiffs brought together by Edward Blum of the Center for Fair Representation, filed its lawsuit in 2014 in the U.S. District Court for the District of Massachusetts. Harvard has filed a motion for summary judgment in its favor, a motion which the Justice Department has now officially opposed. The law firm Consovoy McCarthy Park represents the student group.

A trial is scheduled to begin Oct. 15.

Blum also is the architect of a second federal lawsuit challenging the use of race in the admissions policies of the University of North Carolina.

The U.S. Supreme Court most recently upheld the use of race in the admissions policies of the University of Texas at Austin. The high court in a series of decisions has held that the use of race must be narrowly tailored to achieve a compelling interest and no race neutral alternatives exist. In the case of higher education, the court has said, diversity is a compelling interest.

The American Civil Liberties Union filed an amicus brief in support of Harvard on Thursday.

“While the DOJ's brief does not challenge Supreme Court precedent granting universities the right to freely select their own student body—presumably because it cannot do so at this stage of the litigation—the Trump administration has advocated for 'race-blind' policies, which Harvard and virtually all other universities have found are demonstrably insufficient to achieve meaningful diversity, given the reality of historic and continuing racial discrimination in this country,” the ACLU said in a statement.

Prohibiting any consideration of race as part of a “holistic” admissions 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,” ACLU lawyers wrote in their friend-of-the-court brief.

 

We've posted the Justice Department's statement of interest below:

 

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