DOJ Affirmative Action Investigation Unprecedented, Experts Say - Higher Education
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DOJ Affirmative Action Investigation Unprecedented, Experts Say

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News that the Department of Justice has threatened to sue Harvard University if it fails to turn over applicant records, has raised new concerns about the future of affirmative action.

It appears that the Department of Justice is persisting in its Title VI investigation of affirmative action practices at the Ivy League institution.

Vanita Gupta

“The Sessions Justice Department’s investigation into Harvard raises many flags,” said Vanita Gupta, President and CEO of the Leadership Conference on Civil and Human Rights. Previously, she served as the head of the Civil Rights Division at the Department of Justice during the Obama administration.

Gupta said that the Justice Department has typically participated in affirmative action cases only as a “friend of the court” rather than as a direct party. This investigation, she added, indicates a different agenda.

“The attorney general seems to be on the hunt for a case to bring a significant challenge to affirmative action, despite the fact that the Supreme Court has continuously upheld the lawfulness of race conscious admissions in higher education,” Gupta said.

The Justice Department’s investigation is in response to a complaint filed in 2015 by a coalition of Asian-American associations that allege that Asian-American students have been discriminated against by race-based admissions policies.

Over 60 associations jointly filed the complaint using evidence compiled by Students for Fair Admissions, Inc., a nonprofit advocating for race to not be considered in assessing applicants. The complaint alleges that Harvard has illegally used stereotypes and quotas to disadvantage Asian-Americans in the admissions process.

The complaint was dismissed by the Department of Education but remains active at the Civil Rights Division of the Justice Department.

In August, the Division announced that it would begin to investigate race-based admissions practices. Other legal and civil rights experts worry about the possible national impact of such an investigation.

“I’m deeply concerned about what the Justice Department has undertaken here and the potential ripple effect it could have on campuses across the country,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, a nonprofit that combats racial discrimination.

She said that the Lawyer’s Committee is currently helping to litigate this matter on behalf of a coalition of students, which includes Asian-Americans.

Clarke described the Department of Justice’s investigation as a “reckless inquiry” that could motivate other universities to take preemptive action in rolling back affirmative action policies to avoid their own federal investigations and lawsuits.

In recently made public letters, Harvard University has responded to the Civil Rights Division with requests for clarifications about the Civil Rights Division’s jurisdiction and rationale for the investigation.

Anurima Bhargava, former chief of the educational opportunities section of the Civil Rights Division at the Justice Department, said that it was unusual that John Gore, acting head of the Civil Rights Division, is writing letters directly to Harvard requesting the documents. According to Bhargava, this would normally be done by trial attorneys rather than by management or political leadership.

In the letters, Harvard’s attorney, Seth Waxman, requested more clarification about the rationale and extent of the investigation. The university expressed a continuing commitment to abide by federal laws as well as to protect its students.

“As we have repeatedly made clear to the Department of Justice, the University will certainly comply with its obligations under Title VI,” said Anna Cowenhoven, a spokesperson for Harvard. “In the process, we have an obligation to protect the confidentiality of student and applicant files and other highly sensitive records, and we have been seeking to engage the Department of Justice in the best means of doing so.”

Joseph Hong can be reached at jhong@diverseeducation.com

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