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Experts: Harvard, Yale Probes Signal Future Federal Attacks On Affirmative Action

The United States Department of Justice
The United States Department of Justice By Caroline S. Engelmayer
By Delano R. Franklin, Idil Tuysuzoglu, and Samuel W. Zwickel, Crimson Staff Writers

Some experts say the parallel federal probes into the admissions practices of Harvard and Yale — both investigating allegations of discrimination against Asian-American applicants — indicate the Trump administration is preparing to launch future attacks against affirmative action programs at universities across the country.

Yale University President Peter Salovey confirmed Sept. 26 that the school is facing a Department of Justice and Department of Education investigation. Harvard has faced a similar investigation from the Justice Department for roughly a year.

Theodore M. Shaw, a law professor at the University of North Carolina, said the investigations into both universities show the federal government is “trying to expand the scope and breadth” of their challenge to affirmative action policies.

“They won’t stop here. They can set a good precedent, from their perspective,” Shaw said.

Vinay Harpalani, a professor at Savannah Law School, agreed with Shaw and said the Trump administration might pursue further inquiries into other institutions to promote its political goals.

“The U.S. could put more resources, open up more investigations,” Harpalani said. “I think it’s part of a more broader political strategy, political movement by the Trump administration to promote those lawsuits, try to eliminate the use of race in college admissions.”

The Justice Department’s investigation into Harvard began in August 2017 as a response to a 2015 discrimination complaint filed by 64 Asian American groups led by the Asian American Coalition for Education. The complaint alleged Harvard held Asian American applicants to higher admissions standards than students of other races.

The Yale investigation, which began in April 2018, is based on a similar complaint filed by AACE with 132 other Asian American groups in 2016.

Both complaints were filed with the civil rights offices of the Justice Department and Education Department — which were then under the supervision of the Obama administration. At the time, the Education Department dismissed the complaint against Harvard, while the Justice Department took no action. Neither department took action on the complaint against Yale, which also implicated Brown and Dartmouth.

Over the past year — and under a new presidential administration — the federal government chose to pursue both complaints.

The two ongoing investigations represent only a portion of the federal government’s challenges to affirmative action. In July, the Trump administration rolled back Obama-era guidelines on race-conscious admissions policies.

In August, the Justice Department directly criticized Harvard’s policies as part of a separate lawsuit, which an anti-affirmative action group brought against the University in 2014. In a memo to the judge presiding over the case, the Department of Justice wrote that it feared the College’s admissions process may be “infected with racial bias.”

Roger Clegg, who served as deputy assistant attorney general of the civil rights division of the Justice Department under Ronald Reagan and George H.W. Bush, said affirmative action opponents — bolstered by the Trump administration’s actions — are likely to file more complaints against universities.

“Once it becomes clear that the administration is interested and willing to investigate these matters, then I think more complaints will be filed, and there will be more investigations,” Clegg said.

David B. Oppenheimer, a law professor at University of California, Berkeley, also said he believes further investigations are likely in the future.

“I assume that as long as President Trump is president, and Attorney General [Jeff] Sessions is attorney general, that we will see an increase in number of challenges through investigation, through litigation, and through administrative action against university affirmative action programs,” Oppenheimer said.

Harpalani agreed that, with the addition of the Yale investigation, many institutions of higher education may re-evaluate the use of race in their admissions policies.

“Ultimately, maybe what it could do is pressure other universities to reduce their reliance on race or stop using race altogether. That’s probably more the target of the Yale investigation specifically,” Harpalani said.

While Harpalani said the Yale investigation has the potential to affect other universities, Clegg also said the investigation will make an impact at the institution the Department of Justice first examined: Harvard.

“I’m sure that what the lawyers and government agencies have learned in respect to Harvard will be useful to what they do with Yale and vice versa. As they learn things in the course of the Yale investigation, that [information] might be useful in respect to Harvard,” Clegg said.

—Staff writer Delano R. Franklin can be reached at

—Staff writer Idil Tuysuzoglu can be reached at

—Staff writer Samuel W. Zwickel can be reached at

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