DOJ investigates Harvard for race discrimination

The Department of Justice is investigating Harvard University’s use of race in undergraduate admissions. It has also warned Harvard that it is out of compliance with federal civil rights law because it has not provided documents the department requested.

The investigation concerns admissions policies that depress the number of Asians admitted to Harvard. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color and national origin in programs that receive federal funding. Harvard receives federal funding.

Harvard has been sued by the group Students for Fair Admissions. The suit alleges that Harvard intentionally discriminates against Asian Americans in undergraduate admissions.

The plaintiff’s lawyer in that case welcomed news of the Justice Department’s investigation. “Harvard’s Asian quotas, and the overall racial balancing that follows, have been ignored by our federal agencies for too long,” he said.

Harvard, for its part, seems to be ignoring the government’s request for information relevant to the investigation. The DOJ complains that Harvard had not produced a single document it requested, despite a November 2 deadline.

As far as I can tell from the Washington Post’s report about the dispute, Harvard does not deny that is hasn’t produced any documents. Instead, Harvard apparently argues (via its attorney Seth Waxman, the former Solicitor General of the United States) that it doesn’t have to produce the documents or, if it does, the production should be restricted to a subset of documents, with those redacted.

You can read the Justice Department’s response to Harvard’s arguments here. It seems persuasive.

The Department has given Harvard until December 1 to comply with its request for production. If Harvard doesn’t comply, the DOJ says it may file a lawsuit to enforce the University’s Title VI access obligations.

Compliance shouldn’t be difficult given the time that has already passed since the DOJ made its production request and given that Harvard apparently has produced essentially the same documents in the lawsuit mentioned above. It just comes down to whether Harvard continues to see itself as above the law.

I think what really underlies Harvard’s resistance is that the Obama administration tried to gave it a pass on its discriminatory admissions policies. The chief of the educational opportunity section in the Justice Department’s civil rights division under Obama said this week that the DOJ’s actions are unusual because federal education officials had already considered the issue of race discrimination in Harvard undergraduate admissions and decided not to pursue it. “It’s peculiar that you have a situation in which the Department of Education has dismissed a complaint and the Justice Department then decides to investigate under Title VI,” the former section chief said.

Actually, there is nothing unusual or peculiar about a new administration reversing the stance of a prior one on matters like this. Unless there is a procedural bar to the Justice Department’s investigation — and there does not appear to be any — Harvard’s real complaint is with the electorate, not with the Justice Department.