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DOJ Broadside Against Harvard Admissions Hints at Federal Intent to Sue, Experts Say

Harvard acceptance letters are sealed by members of the Office of Admissions and Financial Aid prior to being mailed off.
Harvard acceptance letters are sealed by members of the Office of Admissions and Financial Aid prior to being mailed off.
By Delano R. Franklin and Samuel W. Zwickel, Crimson Staff Writers

The Department of Justice spawned breaking news alerts and shockwaves that tore across the country last week when it ripped into Harvard’s admissions practices, writing in a court filing that the College practices “unlawful racial discrimination” and that its ranking of applicants is “infected with racial bias.”

Department lawyers introduced their scathing “statement of interest” in support of the plaintiff in a four-year-old lawsuit that accuses Harvard of discriminating against Asian-American applicants — a charge the College has repeatedly denied. The Justice Department signaled at least once before that it is sympathetic to Students for Fair Admissions, the anti-affirmative action advocacy group suing Harvard, but Thursday’s memo marked an unprecedented escalation of hostility towards the University.

Still, experts say, that’s nothing compared to what may come.

Harvard acceptance letters are sealed by members of the Office of Admissions and Financial Aid prior to being mailed off.
Harvard acceptance letters are sealed by members of the Office of Admissions and Financial Aid prior to being mailed off. By Shunella Grace Lumas

“It paves the way for the Justice Department to directly intervene in the suit, join the suit, as opposed to just filing an amicus brief,” Savannah Law School professor Vinay Harpalani said of the Thursday filing. “If the Justice Department does actually sue Harvard, [it would be] bringing the suits together and really putting a lot of pressure.”

Harpalani said he found it striking that the department chose to file a statement of interest and not an amicus or “friend of the court” brief, which any party not directly involved in a suit may file in support of one side or the other. The former category is a stronger proof of investment, he said.

Whatever happens, the Trump administration will likely continue to publicly critique Harvard’s admissions practices as SFFA’s lawsuit moves forward, according to Harpalani.

The suit, brought in 2014, is set to go to trial Oct. 15 in a Boston courthouse. Both Harvard and SFFA have tried to convince Judge Allison D. Burroughs to dismiss the case via summary judgment before that happens; however, she is not likely to do so.

The department’s decision to file its statement before the trial launches is telling, said Theodore M. Shaw, a law professor at the University of North Carolina.

“Certainly they’re trying to throw the weight of the government to sway the outcome in this position,” Shaw said. “I guess they’re trying to get in early and often.”

Roger Clegg, a former Justice Department official who is president of the anti-affirmative action Center for Equal Opportunity, said that strategy is likely to be effective. He said judges typically give department filings “more weight” and that federal arguments tend to be “taken more seriously.”

Harpalani said the department’s early intervention ups the pressure on College administrators because it focuses a national spotlight on the lawsuit, building “public momentum” — and possibly anti-Harvard sentiment — around the case.

He said the University will want to do everything it can to prevent the case from going before the Supreme Court, something experts have said could happen. If the suit reaches the Court — and if conservative nominee Brett M. Kavanaugh is sitting on that Court — it could mean the end of affirmative action in the United States.

“Harvard doesn’t want to go all the way up there,” Harpalani said. “Because that would be an embarrassment, to lose at the Supreme Court.”

The Justice Department is conducting its own separate investigation into alleged discrimination against Asian Americans in Harvard’s admissions system. The department did not publicly announce that probe; it came to light several months ago through news reports and Freedom of Information Act requests.

Department lawyers confirmed that the government’s inquiry is active and ongoing in their Thursday filing, writing that the resolution of the admissions lawsuit “could have a significant impact” on the department’s own “pending investigation” into Harvard admissions.

As a whole, the Justice Department’s behavior is a “warning” to court officials and university administrators around the nation that the federal government dislikes and will continue to oppose race-conscious admissions policies, said Dana N. Thompson Dorsey, an education professor at the University of Pittsburgh.

“It does send a message,” Dorsey said.

Clegg agreed.

“I think it is fair to say… that the Justice Department is unlikely to walk away from this case,” he said.

—Staff writer Delano R. Franklin can be reached at Follow him on Twitter @delanofranklin_.

—Staff writer Samuel W. Zwickel can be reached at Follow him on Twitter @samuel_zwickel.

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