The National Association of Scholars is delighted to learn that the Department of Justice (DOJ) has filed an amicus curiae brief supporting Students for Fair Admissions, Inc. against President and Fellows of Harvard College.
Students for Fair Admissions (SFFA) seeks to overturn the racial preferences in Harvard’s college admissions that go by the name of “diversity.” NAS is proud that we filed the first amicus curiae brief for SFFA, in July 2018. SFFA lost its case in the District Court in October 2019, but immediately appealed the decision. The NAS has just filed a second amicus curiae brief for SFFA’s appeal—and now the DOJ’s brief joins ours. The DOJ’s amicus curiae brief will support Students for Fair Admissions as their case continues its travels through the federal judiciary.
The DOJ’s brief registers a welcome reversal in federal policy. The DOJ has until now supported the race and sex preference regime in higher education. The Obama administration’s Civil Rights Division of the DOJ was particularly fervent in coercing colleges and universities to practice race and sex discrimination. The DOJ’s reversal does more than remove a millstone from higher education. It restores the Department’s good name, as it now seeks justice rather than injustice.
The DOJ’s brief also brings welcome clarity to the case, by establishing the scope and the iniquity of race preferences at Harvard.
· The effect of race preferences is not trivial: “The district court found that Harvard’s use of race was ‘determinative’ for ‘approximately 45% of all admitted African American and Hispanic applicants.’
· The remarkably unvarying racial composition of each incoming class of students provides clear evidence that Harvard uses race discrimination far beyond what the Supreme Court allows: “This overt engineering of racial stasis bears no resemblance to the flexible, nonmechanical ‘plus’ factor that the Supreme Court’s cases to date have permitted.”
· Harvard’s use of a subjective “personal rating” to evaluate applicants “consistently and inexplicably produces poorer scores for Asian Americans than for other applicants. That disparity is undisputed, and unexplained. Harvard bore, but did not carry, the burden of proving that this disparity is not the product of racial discrimination.”
· Harvard uses race preferences throughout the admissions process: “race infiltrates Harvard’s admissions process at essentially every stage. Harvard admissions officers consider race when they score applicants, when they make initial admissions decisions, and when they winnow the list of possible admittees.”
· Harvard’s policies harm Asian American applicants while favoring black and Hispanic applicants: “Harvard’s use of race inflicts an 11.1% penalty (i.e., the decrease from 27% representation to 24% representation) on Asian Americans while simultaneously providing a 133% bonus (i.e., the increase from 6% representation to 14% representation) to African Americans.”
· Harvard’s diversity goals are too nebulous even to be assessed properly, and therefore cannot meet the Supreme Court’s requirement that all actions to promote diversity should be narrowly tailored: “Harvard’s outside diversity expert candidly explained that the school lacks the ‘capacity to know when enough diversity is enough diversity.’ … Courts cannot perform their function of carefully scrutinizing whether a school’s policy is narrowly tailored to advance a compelling interest, see Fisher I, 570 U.S. at 311, if progress toward that interest using a particular policy cannot be assessed.”
· Harvard’s nebulous diversity goals also prevent the courts from determining whether race-neutral alternatives to Harvard’s race preferences were feasible: “because Harvard never articulated any measurable diversity objective, the court had no way of verifying Harvard’s bare assertion that no race-neutral alternative could adequately advance the same objective.”
The DOJ’s brief is excellent, and we hope it will persuade all judges who read it. Harvard’s defeat in the law courts would not be the end of race preferences in higher education—the Supreme Court has given its sanction to diversity in principle, and the vast majority of the higher education establishment is dead set on imposing race and sex preferences, no matter what the court says. Yet if Students for Fair Admissions finally wins their case, universities will discriminate under conditions of legal jeopardy. And that would be a substantial improvement over the status quo.
The Department of Justice’s motto is Qui Pro Domina Justitia Sequitur—“Who prosecutes on behalf of justice.” By joining with Students for Fair Admission, the DOJ has lived up splendidly to its motto.