The Harvard Affirmative Action Investigation

In the ongoing saga of the Trump administration’s policy changes, the Department of Justice will be investigating affirmative action in higher education. This is in response to a “joint complaint filed by 64 Asian American associations” in May 2015 that alleged Asian-American students are being unfairly discriminated against in college admissions on the basis of their race.

Government watchdog group American Oversight filed a Freedom of Information Act request to release documents pertaining to ongoing investigations into Harvard College and the University of North Carolina on August 30, 2017. There is currently no active investigation into UNC, but the Department of Justice has declined to release files pertaining to Harvard College because it could impede the investigation process. The basis of the original claim, however, is available.

In May 2015, 64 Asian-American organizations worked together to file a complaint against “Harvard University and other Ivy League colleges” for discriminating against Asian-American students in the admissions process. Their reasoning was that “[m]any Asian-American students who have almost perfect SAT scores, top 1 percent GPAs, plus significant awards or leadership positions in various extracurricular activities have been rejected” while students of other races who have comparable or lesser qualifications are accepted to the same schools.

The investigation could impact the ongoing lawsuit brought against Harvard in November 2014 by a small anti-affirmative action advocacy group, Students for Fair Admission, for applying illegal racial quotas in the applications process. Harvard has been fighting this lawsuit in the years since, and the next stages are expected to commence in May 2018. According to the Harvard student news outlet, the Harvard Crimson, it’s possible that the Department of Justice could submit an amicus brief, file a “statement of interest”, or even attempt to “intervene” in the case—that is, join the lawsuit on behalf of either Harvard College or Students for Fair Admission, depending on the results of the investigation.

In 1978, a landmark Supreme Court ruling, University of California v. Bakke, upheld that colleges may consider race in the admissions process, but forbade the use of specific quotas. Affirmative action has been challenged in court multiple times since and always upheld by narrow margins. In this case, Harvard is under investigation for the use of quotas rather than the consideration of race in general. The results of the Harvard suit—which could well be influenced by the Department of Justice investigation, and whether the Justice Department throws its weight into the lawsuit—have the potential to heavily influence future court rulings about affirmative action.