The Justice Department under President Joe Biden has voluntarily withdrawn its lawsuit claiming that the Yale application process violated Title XI’s prohibition against racial discrimination. However, the move may be more political than precedential, as a conservative advocacy group stands ready to take Yale, Harvard, and several other universities’ Affirmative Action policies to the highest court.

Justice Department Drops Effort to Undermine Race-Based Yale Application Process

On August 13, 2020, the U.S. Department of Justice under President Trump, issued a press release claiming that Yale University’s admissions process illegally discriminated against Asian-Americans and white applicants. The Yale admissions requirements encouraged assessors to consider the “whole person,” including how their race or national origin could contribute to the diversity of the university’s community. The Trump administration said this was illegal racial discrimination under Title IX of the Civil Rights Act. When Yale refused the Justice Department’s demands to exclude race and national origins from its 2020 admissions policy, the agency took the university to court.

However, the new year brought a new administration, and a different take on the way racial minorities should be treated. On February 3, 2021, just two weeks after President Biden’s inauguration, the Justice Department filed a “Notice of Voluntary Dismissal,” dropping the case. In a statement issued at the same time, the agency based its decision on “all available facts, circumstances and legal developments.”

Harvard Affirmative Action Admissions Policy Upheld Appeal

One such legal development was the decision by the U.S. Court of Appeals for the First Circuit in a parallel case against Harvard University’s affirmative action policy. Issued less than one month after the Justice Department filed its Yale University complaint, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College upheld the university’s use of race as one factor among many in its admissions process.

The Court said that Harvard’s use of race was an appropriate part of an effort to reach out to Black and Latino students. It noted that the university “has already reached, or at least very nearly reached, the maximum returns in increased socioeconomic and racial diversity that can reasonably be achieved through outreach and reducing the cost of a Harvard education.” The University’s campus population would likely look very different if it did not use adjustments to its application process to supplement its financial aid and outreach programs.

The Justice Department was not a party in the Harvard case. It was filed by a group of Asian-American students backed by the conservative advocacy group Students for Fair Admissions. However, under the Trump Administration, the Justice Department had supported the Asian-American plaintiffs and argued against Affirmative Action on their behalf.  The organization has also filed similar lawsuits against the University of North Carolina and the University of Texas.

Affirmative Action Lawsuits, Appeals Likely to Continue

Even with the Harvard decision and the Justice Department’s decision to withdraw the Yale University lawsuit, it seems likely that Affirmative Action will make its way back to the U.S. Supreme Court. Students for Fair Admissions has already expressed its intent to take up the case against Yale. It’s motion to intervene into the government’s case was denied in October. However, the group will likely now refile the case on its own.

At the same time, the group has filed a Petition for Certiorari in the Harvard case, asking the U.S. Supreme Court to take up the question of Affirmative Action once again. The Harvard and Yale policies including race as one non-determinative factor were based on two 2003 cases against the University of Michigan. However, the new, more conservative makeup of the Supreme Court could mean restrictions, or even an end to pro-diversity racial considerations at colleges and universities across the state.

At Eisenberg & Baum, LLP, our discrimination attorneys understand how Affirmative Action can be used to fight against systemic racial discrimination, and what happens when those efforts end up working against students and employees of colleges and universities. If you believe your school has been discriminating against you because of your race, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to a discrimination attorney.