The Trump Administration’s Department of Justice has had its eye on Affirmative Action policies used at Ivy League colleges for years. Now, while a private lawsuit against Harvard goes up on appeal, the DOJ has turned its attention to Yale University, and what it calls racial discrimination against Asian Americans and white applicants in the college application process.

Yale University Targeted for Application Discrimination by DOJ

On August 13, 2020, the U.S. Department of Justice announced it had found that Yale University illegally discriminated against Asian-American and white applicants in its undergraduate college application process. The press release included this statement:

“There is no such thing as a nice form of race discrimination,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness, and division. It is past time for American institutions to recognize that all people should be treated with decency and respect and without unlawful regard to the color of their skin.”

The notice targeted Yale’s Affirmative Action policies that are designed to lift up racial minorities. These students are often at a disadvantage when applying to elite colleges and universities because of reduced access to educational opportunities in their communities, and the lower standardized test scores that result. The notice demanded that Yale not use race or national origin in its 2020-2021 undergraduate admissions cycle, and then submit a plan for future college admissions processes showing how it would narrowly tailor the use of race, and identify a date for ending its use entirely.

Yale Responds Saying Admissions Policies Promote Diversity on Campus

It appears Yale has no intention of complying with the DOJ’s demands. It issued a statement saying that its applications process looks at the “whole person”, considering academic achievement, interests, leadership, and “the likelihood that they will contribute to the Yale community and the world.” Peter Salovey, Yale’s president, told the New York Times:

“The department’s allegation is baseless. . . . 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 notice also demonstrates the Department of Justice’s shift on how it views diversity and racial discrimination under the Trump Administration. Rachel Kleinman, senior counsel at the NAACP Legal Defense and Educational Fund said she was “shocked but not surprised” by the finding. The New York Times reported:

“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. . . .

“They’re sticking with the analysis that any use of race is racism and insidious.”

Affirmative Action and Racial Discrimination Under Title IX

Affirmative Action and racial discrimination have come before the courts before. The U.S. Supreme Court has allowed colleges and universities to use race as one factor among many in their admissions process when the purpose was to promote diversity. However, these lawsuits have been raised under the U.S. Constitution’s 14th Amendment Equal Protection Clause.

The DOJ notice, and any lawsuit related to it, would instead be based on a violation of Title IX of the 1964 Civil Rights Act, which requires educational facilities that receive federal funding to avoid discrimination based on protected traits, including race and national origin. The federal Civil Rights Act is designed to protect students, employees, and residents from discrimination and promote fair treatment of minorities. However, the language of the law is neutral, which allows members of the majority (in this case white students) to use it when they feel they have been discriminated against in favor of minorities. This is sometimes called “reverse racism” or “reverse discrimination.” If a federal court finds that the Yale University college admissions process violated Title IX by including racial discrimination in its application process, it could require the university to change how it admits students or lose federal funding.

Harvard College Application Process, Approved by Judge, Now Up on Appeal

The timing of the notice to Yale University is also getting the attention of commentators. It came less than a month before DOJ attorneys were expected to present the same argument in a private lawsuit by Asian-American students against Harvard College. The students, represented by Students for Fair Admissions, brought their lawsuit as an Equal Protection claim.

Last year, Judge Allison D. Burroughs of the United States District Court for the District of Massachusetts, ruled in favor of the college. Her 130-page opinion said Harvard’s college application process wasn’t perfect, and could be susceptible to implicit bias by admissions staff. However, overall she found the process fair and committed to attracting applicants “who are exceptional across multiple dimensions.” Race, she said, was only ever used as a “plus” factor, not to hurt applicants.

“Although racial identity may be considered by admissions officers when they are assigning an applicant’s overall rating, including when an applicant discloses their race but does not otherwise discuss itin their application, race has no specified value in the admissions process and is never viewed as a negative attribute. Admissions officers are not supposed to, and do not intentionally, consider race in assigning ratings other than the overall rating.”

The Harvard case is currently up on appeal before the United States Court of Appeals for the First Circuit. Many commentators believe it will eventually make its way before the U.S. Supreme Court. This will give a panel of judges including at least two appointed by the Trump Administration a new opportunity to weigh in on Affirmative Action and racial discrimination. Depending on how the Yale situation progresses, it could become a hotly contested lawsuit as well, defining students’ rights in the area of application discrimination not only under the Equal Protection Clause of the Constitution, but under Title IX as well.

At Eisenberg & Baum, LLP, our discrimination attorneys understand the complex relationship between Affirmative Action and racial discrimination, both for students, and the employees of colleges and universities. If you believe Affirmative Action has improperly worked against you, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to a discrimination attorney.