Harvard Faces DOJ Probe over Affirmative-Action Policies

Melissa Korn and Nicole Hong, Wall Street Journal, November 21, 2017

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The Justice Department is investigating complaints that formed the basis of a federal civil lawsuit filed in 2014 in Boston, according to the documents. That suit alleges Harvard intentionally discriminates against Asian-Americans by limiting the number of Asian students who are admitted.

The lawsuit, brought by a nonprofit called Students for Fair Admissions, said the practices violate federal civil-rights law and asks a federal judge to prohibit Harvard from using race as a factor in future undergraduate admissions decisions. The suit is pending.

The Justice Department, whose Civil Rights Division is conducting the investigation into similar allegations, said in a letter to Harvard’s lawyers, dated Nov. 17 and reviewed by the Journal, that the school was being investigated under Title VI of the Civil Rights Act of 1964, which bars discrimination on the basis of race, color and national origin for organizations that receive federal funding. The letter also said the school had failed to comply with a Nov. 2 deadline to provide documents related to the university’s admissions policies and practices.

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The documents reviewed by the Journal confirm the existence of an investigation that the Justice Department in August indicated it would pursue and suggest that Harvard has challenged the authority of the department’s Civil Rights Division to conduct it.

In a statement, Harvard said: “As we have repeatedly made clear to the Department of Justice, the University will certainly comply with its obligations under Title VI.” The school added that it was seeking to engage the department in the best way to share relevant information while protecting applicants’ privacy.

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Harvard has previously said its admissions process is consistent with the legal precedents set over the past 40 years by the Supreme Court, which have allowed universities to consider race as a factor in admissions to obtain the benefits of a diverse student body.

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Seth Waxman, a partner at WilmerHale, the law firm representing Harvard, called the investigation “outside ordinary practices” of the Justice Department because responding to a complaint filed more than two years prior wouldn’t meet the department’s standard of “prompt” action.

Mr. Waxman also denounced the investigation on the grounds that identical issues are being litigated in federal court. The Education Department declined to investigate the same complaint largely because the private lawsuit against Harvard covered the issues, Mr. Waxman wrote in an Oct. 6 letter to the Justice Department.

He also said any investigation would more appropriately come from the Justice Department’s Office for Civil Rights, inside its Office of Justice Programs, not the Civil Rights Division.

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The Justice Department gave the school a Nov. 2 deadline to provide the requested information. But over the past two months, “Harvard has pursued a strategy of delay and has not yet produced even a single document,” according to another Nov. 17 letter sent from the agency to Mr. Waxman.

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According to experts in civil-rights law, there are many potential outcomes to the investigation. One possibility is that it could lead to litigation in court between the Justice Department and Harvard. In that case, if a federal judge finds Harvard has violated Title VI, the court has broad authority to issue a remedy, such as ordering the university to change its admissions policies, the experts say.

Schools in violation of Title VI can also lose access to federal funds.

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Asian-American groups have been raising concerns about the fairness of Ivy League admissions practices since at least 1989.

Mr. Blum also spearheaded a challenge to affirmative action brought by a white applicant against the University of Texas, which was decided by the Supreme Court last year.

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