//  8/24/17  //  In-Depth Analysis

Early this month, the New York Times reported what, at first, looked like a broad Department of Justice policy change—that the Department intended to launch a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions,” according to an internal DOJ announcement.  The Times suggested that the goal was to attack university policies “deemed to discriminate against white applicants,” which people understood to mean affirmative action programs.

The Department called the initial reporting “inaccurate.”  The listing, a DOJ spokeswoman said, was merely for investigation of “one admissions complaint”—the 2015 complaint on behalf of Asian Americans that was filed against Harvard University.  Some commentators, including the Wall Street Journal’s editorial board, came to the defense of the Department, writing:

The Justice Department has said its leaked document was merely seeking lawyers to consider the merits of the Asian-American complaint, and on all the available evidence the admissions books at Harvard and elsewhere are ripe for a closer look. If colleges are enforcing quotas on qualified applicants merely because of their ethnicity, the term for that is familiar to progressive academics: institutional racism.

But the Harvard policy has long been upheld as a model for lawful affirmative action programs, and attack on the Harvard program strikes at the core of affirmative action.

The Complaint and Lawsuit

In May 2015, a coalition of Asian-American students filed a complaint with the U.S. Department of Education and the DOJ’s Civil Rights Division alleging that Harvard University’s undergraduate admissions policy discriminated on the basis of race.  The complaint alleges intentional racial discrimination against Asian-American students in violation of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. 

A complaint filed in 2014 in federal district court in Massachusetts makes the same allegations.  Because of that lawsuit, the initial 2015 administrative complaint was dismissed.  Now it appears that the Department of Justice is considering reviving the administrative complaint.  DOJ may even get involved in the pending lawsuit.

The Harvard Policy and Bakke

The Supreme Court’s cases on affirmative action demonstrate the importance of the challenge to Harvard’s admissions policies.  In the 1978Bakke case, the Supreme Court struck down an affirmative action policy that used racial quotas, but it suggested that a policy that considers race among other factors would be permissible.  Justice Powell wrote a concurrence that is treated as the controlling opinion in Bakke.  And in that controlling opinion, Justice Powell held out Harvard’s as a model permissible policy—he literally appended it to his opinion as a model.  Powell wrote that the so-called “Harvard plan” is “[a]n illuminating example” of a program “which take[s] race into account in achieving the educational diversity valued by the First Amendment,” while “demonstrat[ing] that the assignment of a fixed number of places to a minority group is not a necessary means toward that end.”

In some ways, this complaint asks the courts to confront the foundational fiction of affirmative action jurisprudence: Powell’s distinguishing between UC Davis’s unconstitutional “quota” system and Harvard’s constitutional “holistic review” system.  The Court’s subsequent affirmative action cases have made clear that Justice Powell’s analysis in Bakke is controlling.  They’ve also made references to Harvard’s admissions policies.  For example, Grutter v. Bollinger upheld the University of Michigan Law School’s admissions policies.  The court of appeals had done the same, Grutter explained, “because the Law School's program was ‘virtually identical’ to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion.”

In his biography of Justice Powell, John Jeffries writes at length about the Bakke decision and the compromises that led to the jurisprudence regarding affirmative action policies.  Justice Powell, according to Jeffries, wanted to maintain flexibility so that affirmative action programs—on Powell’s view a temporary social necessity—could be more readily dismantled when they became no longer socially necessary.  (Jeffries recounts the Justices’ conference in late 1977 in which Justices Stevens and Powell agreed that affirmative action should be a temporary, rather than permanent solution.  According to Jeffries’ account, Justice Thurgood Marshall “broke in to say that it would be another hundred years” before such measures were no longer necessary, a comment that apparently rattled Justice Powell.)  Because “quotas” seemed fixed, Justice Powell feared that they would be seen as an entitlement, not easily dismantled. The difference was subtle, more messaging than substance.

The 2014 lawsuit argues that, rather than simply individualized “holistic review,” Harvard engages in racial balancing—in effect, a quota system.  As Jeannie Suk Gersen recently wrote, the Court’s jurisprudence undermines honest discussion of affirmative action policies, and in fact leads to stereotyping implications:

Because our legal doctrine prohibits racial quotas, it is currently impossible to have an honest discussion of these questions. The truth is that, in addition to a holistic review of each applicant that considers race as one factor, colleges undertake some amount of balancing so that they do not end up with a class that is swamped by members of any particular race—or with too many scientists, poets, or dancers, for that matter. But admissions offices cannot admit to efforts at racial balancing or anything that sounds remotely like quotas. Hence, Harvard’s litigation position must attribute the resulting race composition and the percentage of Asians in its class solely to the holistic method, admitting to no racial balancing. This account is plausible if, in fact, despite disproportionately strong academic credentials, Asian applicants are severely less likely than white ones to have the special personal qualities that colleges seek. That is the inevitable implication of Harvard’s position, which would be in line with long-standing perceptions of Asians as indistinguishable from one another.

Justice Powell’s compromise gave us this precarious system—on the one hand, quotas are banned, but on the other hand, programs such as Harvard’s are social necessities.  That’s why Harvard’s policy is at the very heart of the affirmative action fight.  It’s not just “one admissions complaint”; it’s an attack on the precarious distinction that makes the affirmative action jurisprudence work.

The Anti-Remedial Campaign in the Courts

The forces behind the Harvard lawsuit are the same as those that were behind Fisher v. University of Texas (the most recent challenge to affirmative action), Shelby County v. Holder (the challenge to the Voting Rights Act), and other related cases. Court watchers will recognize the progenitor behind the lawsuit: Edward Blum. Blum funded Abigail Fisher’s suit against the University of Texas, and his organization, Students for Fair Admissions, is the plaintiff in the 2014 Harvard suit.  The Harvard suit, in other words, is quite literally one piece in a campaign against race-conscious remedies.

The Department of Justice may downplay their effort to support the plaintiffs against Harvard as about just “one admissions complaint.”  But this one complaint isn’t just any one complaint.  It’s one that challenges the very foundation of affirmative action policies.  It asks the Court to abandon Bakke and Grutter and to reject race-conscious remedial measures.

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George Washington University Law School

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George Washington University Law School

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George Washington University Law School

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George Washington University Law School