Justice Dept: Yale discriminates in admissions against Asian Americans and whites

Justice Dept: Yale discriminates in admissions against Asian Americans and whites

We constantly hear that there is systemic racism in higher education. That’s true, except not in the way propagandized.

The last existing systemic racism in higher ed takes place in the admissions process at elite institutions, in order to achieve a racial mix preferred by administrators and activists. The primary victims of such practices are people of Asian descent.

We saw this in the recent Harvard trial, which is now up on appeal (oral argument scheduled September 16, 2020). Harvard’s primary defense was not that it didn’t discriminate against Asians, which was statistically irrefutable, but that such discrimination was legally permitted as part of a larger educational goal of “diversity.” Harvard drove its discriminatory truck through a small opening the U.S. Supreme Court has created that permits race to be considered in admissions so long as it is just one of many factors and not tantamount to a quota system.

The U.S. Department of Justice sided with the Asian-American plaintiffs in the Harvard case. Harvard prevailed at trial based on fuzzy explanations about a wholistic admissions process. That harkens back to the wholistic approach pionered by Harvard a century ago to limit the number of Jews. I’d be surprised if the Harvard case didn’t eventually end up at the Supreme Court.

The Justice Department now is focusing on Yale University, issuing a finding that Yale Illegally Discriminates Against Asians and Whites in Undergraduate Admissions in Violation of Federal Civil-Rights Laws:

The Department of Justice today notified Yale University of its findings that Yale illegally discriminates against Asian American and white applicants in its undergraduate admissions process in violation of Title VI of the 1964 Civil Rights Act. The findings are the result of a two-year investigation in response to a complaint by Asian American groups concerning Yale’s conduct.

“There is no such thing as a nice form of race discrimination,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness, and division. It is past time for American institutions to recognize that all people should be treated with decency and respect and without unlawful regard to the color of their skin. In 1890, Frederick Douglass explained that the ‘business of government is to hold its broad shield over all and to see that every American citizen is alike and equally protected in his civil and personal rights.’ The Department of Justice agrees and will continue to fight for the civil rights of all people throughout our nation.”

As a condition of receiving millions of dollars in taxpayer funding, Yale expressly agrees to comply with Title VI of the Civil Rights Act of 1964, a cornerstone civil-rights law that prohibits discrimination on the basis of race, color, or national origin in programs and activities that receive federal financial assistance.

The Department of Justice found Yale discriminates based on race and national origin in its undergraduate admissions process, and that race is the determinative factor in hundreds of admissions decisions each year. For the great majority of applicants, Asian Americans and whites have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials. Yale rejects scores of Asian American and white applicants each year based on their race, whom it otherwise would admit.

Although the Supreme Court has held that colleges receiving federal funds may consider applicants’ race in certain limited circumstances as one of a number of factors, the Department of Justice found Yale’s use of race is anything but limited. Yale uses race at multiple steps of its admissions process resulting in a multiplied effect of race on an applicant’s likelihood of admission, and Yale racially balances its classes.

The Department of Justice has demanded Yale agree not to use race or national origin in its upcoming 2020-2021 undergraduate admissions cycle, and, if Yale proposes to consider race or national origin in future admissions cycles, it must first submit to the Department of Justice a plan demonstrating its proposal is narrowly tailored as required by law, including by identifying a date for the end of race discrimination.

The Justice Department Letter (pdf.) to Yale sets forth the accusations in more detail, as well as the legal standard that Yale is violating:

To comply with Title VI, Yale cannot engage in discrimination barred by the Equal Protection Clause of the United States Constitution. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Because Yale admits that it usesrace in admissions, Yale bears the burden of showing that it satisfies strict scrutiny. This means that Yale bears the burden of demonstrating that its use of race is narrowly tailored to serve a compelling interest. E.g., Fisher v. University of Tex. at Austin, 570 U.S. 297, 309-11 (2013) (Fisher I); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).

Yale asserts that it has a compelling interest in obtaining the educational benefits of diversity. Yale’s diversity “goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” Fisher v. University of Tex. at Austin, 136 S. Ct. 2198, 2211 (2016) (Fisher II). Furthermore, strict scrutiny requires Yale to “prove that the means chosen by” the school to achieve its stated interest in diversity “are narrowly tailored to that goal.” Fisher I, 570 U.S. at 311.

Proving that a race-conscious program is narrowly tailored is a “heavy burden.” Fisher II, 136 S. Ct. at 2211; Parents Involved, 551 U.S. at 747. Narrow tailoring requires, among other things, that a university use race only as a “plus” factor “in a flexible, nonmechanical way.” Grutter v. Bollinger, 539 U.S. 306, 334 (2003). Race cannot be “decisive in practice.” Gratz, 539 U.S. at 272 & n.19; accord Grutter, 539 U.S. at 337. In other words, narrow tailoring requires that race cannot be “the defining feature” of the application or “the predominant factor” that decides an applicant’s admission. Grutter, 539 U.S. at 317, 320, 337. Additionally, “racial balancing” is “patently unconstitutional” under the Equal Protection Clause, id. at 330, and thus also violates Title VI. In addition, an admissions program cannot “unduly burden individuals who are not members of the favored racial and ethnic groups.” Id. at 341 (citation omitted). Finally, a university’s “race-conscious admissions policies must be limited in time.” Id. at 342.

Applying these principles, and based on our review of information we obtained during our investigation, we have determined that Yale violated, and is continuing to violate, Title VI.

Yale’s President has responded with a statement reiterating Yale’s Steadfast Commitment to Diversity:

…. The department’s allegation is baseless. Given our university’s commitment to complying with federal law, I am dismayed that the DOJ inexplicably rushed to conclude its investigation without conducting a fully informed analysis, which would have shown that Yale’s practices absolutely comply with decades of Supreme Court precedent.

Yale College will not change its admissions processes in response to today’s letter because the DOJ is seeking to impose a standard that is inconsistent with existing law. We will continue to look at the whole person when selecting whom to admit among the many thousands of highly qualified applicants. We will continue to look at what students have accomplished and hope to contribute to Yale and the world. We will continue to create a student body that is rich in a diverse range of ideas, expertise, and experiences. Such a student body greatly enhances students’ academic experiences and maximizes their future success. By bringing people of different backgrounds, talents, and perspectives together, we best prepare our students for a complex and dynamic world.

Yale’s admissions practices help us realize our mission to improve the world today and for future generations. At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.

Expect other elite institutions to come to Yale’s defense should this make its way to the courts.

Chief Justice Roberts famously wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” I wish I could be more confident that Roberts would stick to that sensible wisdom should Harvard or Yale or other higher education institutions find their discriminatory practices before the Supreme Court again.

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