One gets the impression that in important respects the Trump administration is just beginning to fire on all cylinders. A brilliant and fully functioning Attorney General heading up the Department of Justice is at least one of those cylinders. Yesterday, for example, Assistant Attorney General for Civil Rights Eric Dreiband notified Yale University of the department’s 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. The DoJ press release explains:
“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.
Reading the news generated by this press release — news such as this New York Times story or this Wall Street Journal story — it is not entirely clear that the department has not yet brought a lawsuit against Yale. Rather, it has issued a formal notice of violation and invited Yale’s voluntary compliance. It’s not going to happen, so one can only pray that the Trump administration has the opportunity to see the case through to the end.
As I have frequently observed, the law in this area is almost entirely putative. The ideal of the color-blind Constitution remains permanently on the horizon. This week, coincidentally, Amy Wax scrupulously takes up the subject in the Law & Liberty review The Perpetual Reign of Racial Preferences.”
The Supreme Court has made a pathetic hash of applicable constitutional and statutory provisions and thus left institutions like Yale free to flout the putative law with impunity. At Yale and other elite institutions racial discrimination goes under the name of affirmative action. Their intransigence harkens back to George Wallace’s commitment to segregation. They vow “Affirmative action, affirmative action tomorrow, affirmative action forever.”
The department’s four-page letter to Yale is posted online here and embedded below.
Letter to Attorney Spivack Yale 8.13.2020 0 by Scott Johnson on Scribd
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