The Trump Department of Justice has steadfastly opposed racial discrimination without regard to which racial group is the victim. Yesterday, pursuant to this policy, the DOJ filed an amicus brief on behalf of the Asian-American plaintiffs who were discriminated against as a result of Harvard University’s race-based admissions preferences for African-American applicants.
The district court got it wrong. The Justice Department’s brief to the U.S. Court of Appeals for the First Circuit explains why.
Here is the DOJ’s Summary of Argument:
Harvard intentionally uses race in its admissions process. It thus bore the burden to prove that its process satisfies strict scrutiny by showing that its use of race is narrowly tailored to a compelling interest. Harvard did not carry its burden.
I. Even assuming that Harvard has articulated a sufficiently concrete interest in diversity to warrant any consideration of race, Harvard failed to show that its consideration of race is narrowly tailored, for at least two reasons.
A. First, Harvard’s process entails prohibited racial balancing. The manifest steadiness of the racial composition of successive admitted classes speaks for itself. Harvard’s consideration of race throughout the admissions process and its constant monitoring of the class that is taking shape are the key mechanisms by which Harvard has achieved such remarkable stability from one year to the next. And Harvard’s own internal study of race-neutral alternatives confirms that the school’s goal is maintaining consistency from year to year. The district court approved Harvard’s process as the mere application of a “plus” factor permitted by precedent. But in reality, Harvard’s process employs a system of de facto quotas.
B. Second, Harvard’s process imposes a racial penalty by systematically disfavoring Asian-American applicants. It does so in part through the subjective personal rating that admissions officers apply with minimal guidance or supervision. That rating produces consistently poorer scores for Asian Americans. Harvard did not prove that the personal rating is race-neutral. The district court nevertheless ruled for Harvard by positing alternative explanations that might account for the disparity. In doing so, it relieved Harvard of its well-established burden of proof.
II. Because Harvard failed to show that its process is narrowly tailored, the Court need not decide whether Harvard has asserted a sufficient diversity interest. But to rule for Harvard, the Court would need to confront this issue headon. Articulating a concrete objective is critical to ensure that considering race is not an end in itself, and to enable judicial review of a school’s claim that its asserted ends cannot effectively be achieved by alternative, race-neutral means. Harvard however, has not articulated any such objective. Although its process demonstrably results in (and is engineered to produce) incoming classes with consistent racial compositions, it does not claim a compelling interest in maintaining such stability. Nor does Harvard identify any other concrete, cognizable educational goal by which its use of race can be tested. That failure frustrates judicial review. And Harvard’s failure to provide an objective measure should not redound to its benefit. Unless a court can conclude with confidence that a school’s use of race is lawful, it is not.
This case will probably end up at the Supreme Court. There, the four Democratic nominees can be counted to uphold Harvard’s discrimination without compunction. Most of the Republican nominees will likely vote the other way, but unless all of them do, Harvard will be free to keep rejecting Asian-Americans applicants because of their race.
That the Trump Justice Department is committed to supporting the Asian-American students, and is supporting them so ably, provides reason to hope that Harvard’s discriminatory practices will not stand.