Dear Commons Community,
Earlier this week, it was reported by the New York Times that the Justice Department was redirecting resources in its civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants. The reporting was based on an internal document that sought current lawyers interested in working for a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”
In response, a Justice Department spokeswoman, Sarah Isgur Flores, said on Wednesday that news media reports about the investigation were “inaccurate.” The department is seeking volunteers “to investigate one admissions complaint” filed on behalf of Asian-Americans who alleged racial discrimination in “a university’s admission policy and practices.”
She said the department had not received or issued any “directive, memorandum, initiative or policy related to university admissions in general.” The Times report did not say that the department had, but noted that it was preparing to redirect agency resources toward scrutinizing university affirmative-action practices. The announcement, a copy of which was obtained by The Times, said division lawyers interested in working on the topic are to submit résumés by Aug. 9.
Several current and former Civil Rights Division employees greeted the department’s statement on Wednesday with skepticism. The personnel announcement said it was seeking multiple lawyers to work on “investigations,” plural. It also indicated that the project will be run the division’s front office, where Trump administration political appointees work, rather than by the division’s Educational Opportunities Section, where career civil-service lawyers normally handle university-related complaints.
“I am skeptical of the explanation that this detail announcement would be for the investigation of one single complaint,” said Justin M. Levitt, a former deputy assistant attorney general in the division in the Obama administration. “To have that structure to investigate a single complaint, outside the normal chain of command for career attorneys who investigate these sorts of complaints all the time, that’s quite weird.”
Ms. Flores’s statement described the investigation as an administrative referral about a complaint filed by 64 Asian-American coalitions in May 2015 and that “alleges racial discrimination against Asian-Americans in a university’s admission policy and practices.” That description dovetails with a dispute at Harvard University that led to a still-pending lawsuit filed on behalf of such students. The Justice Department, to date, has not intervened in that litigation or filed a friend-of-the-court brief.
If what Ms. Flores says is true then the Asian-American discrimination case will have significant ramifications and will likely end up at the US Supreme Court. The subject of the Havard lawsuit alleges discriminating against Asian-Americans in admissions by giving preferences to other racial minorities.
The case puts Asian-Americans front and center in the latest stage of the affirmative action debate. The issue is whether there has been discrimination against Asian-Americans in the name of creating a diverse student body. The Justice Department may well focus on Harvard.
The Harvard case asserts that the university’s admissions process amounts to an illegal quota system, in which roughly the same percentage of African-Americans, Hispanics, whites and Asian-Americans have been admitted year after year, despite fluctuations in application rates and qualifications.
“It falls afoul of our most basic civil rights principles, and those principles are that your race and your ethnicity should not be something to be used to harm you in life nor help you in life,” said Edward Blum, the president of Students for Fair Admissions, the organization that is suing Harvard.
This case will be followed very carefully over the next several years as it works its way through the federal judicial system.
Tony
