Katie Benner, New York Times, August 30, 2018

The Justice Department lent its support on Thursday to students who are suing Harvard University over affirmative action policies that they claim discriminate against Asian-American applicants, in a case that could have far-reaching consequences for the use of affirmative action in college admissions.

In a so-called statement of interest, the department supported the claims of the plaintiffs, a group of Asian-Americans rejected by Harvard. They contend that Harvard has systematically discriminated against them by artificially capping the number of qualified Asian-Americans from attending the school in order to advance less qualified students of other races.

“Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian-Americans,” the Justice Department said in its filing.

The filing said that Harvard “uses a vague ‘personal rating’ that harms Asian-American applicants’ chances for admission and may be infected with racial bias; engages in unlawful racial balancing; and has never seriously considered race-neutral alternatives in its more than 45 years of using race to make admissions decisions.”

In recent years, the Justice Department has increasingly used such statements of interest to intervene in civil rights cases. {snip} Between 2006 and 2011, they were drafted in at least 242, almost all by the Obama administration on issues such as videotaping police brutality, ensuring that blind people and their service dogs have access to Uber or preventing the police from arresting homeless people who cannot find beds in shelters.

But the Trump administration is now turning the same tool against affirmative action in college admissions, a major — and highly contentious — legacy of the civil rights era. In the past few years, affirmative action has faced a fresh barrage of scrutiny from Asian-Americans who argue that they are being held to a higher standard, losing out on coveted slots at places like Harvard as African-Americans, Latinos and other groups get a boost. Universities that factor race into admissions have also seen a powerful new opponent of the policies emerge in the Trump administration, which argued in its filing on Thursday that the court should deny Harvard’s request to dismiss the case before trial.

The government said that Supreme Court rulings require that universities considering race in admissions meet several standards. They must define their diversity-related goals and show that they cannot meet those goals without using race as a factor in admissions decisions.

The department argued that Harvard does not adequately explain how race factors into its admissions decisions, leaving open the possibility that the university is going beyond what the law allows.

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A broad coalition of Harvard supporters filed briefs in support of the school Thursday condemning the lawsuit and saying that it would effectively threaten diversity at American colleges.

Those groups include 25 alumni and student groups represented by the NAACP’s Legal Defense and Educational Fund, the American Civil Liberties Union, a group of economists who criticized the experts whose work was used in the original lawsuit and a group of 531 social scientists and academics who study access to college.

“Eliminating race-conscious admissions would disproportionately harm applicants of color, including some Asian-Americans,” Harvard alumni said in their filing. They contend that race is “one of many factors in its holistic admissions process,” in compliance with the Supreme Court’s demand that the use of race be narrowly tailored in the admissions process.

“Applicants’ opportunities to amass credentials that make for a competitive college application are greatly affected by race,” alumni and students wrote. “Given racial bias in standardized testing and endemic racial inequities,” they said the school must continue to consider race.

The Harvard case, which was brought by an anti-affirmative-action group called Students for Fair Admissions, is seen as a test of whether a decades-long effort by conservative politicians and advocates to roll back affirmative action policies will ultimately succeed.

That push has broad support from President Trump. The Department of Education and Justice Department said in July that the administration was abandoning Obama-era policies that asked universities to consider race as a factor in diversifying their campuses and would favor race-blind admissions instead.

Officials from both departments said that the Obama administration had used guidelines to circumvent Congress and the courts to create affirmative action policies that went beyond existing law. The Trump administration contends that its stance on affirmative action adheres to the letter of the law and the opinions of the courts.

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“It’s alarming that Trump is aligning himself with anti-civil rights activist Edward Blum in this subversive attempt to say that civil rights protections cause discrimination,” said Jeannie Park, the head of the Harvard Asian-American Alumni Alliance and co-founder of the Coalition for a Diverse Harvard, referring to the founder of Students for Fair Admissions. “Trump does not speak for Asian-Americans, just as Blum does not.”

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“It turns out that the suspicions of Asian-American alumni, students and applicants were right all along,” Students for Fair Admissions said in a court filing. “Harvard today engages in the same kind of discrimination and stereotyping that it used to justify quotas on Jewish applicants in the 1920s and 1930s.”

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If it winds its way to the Supreme Court, it could be heard by Judge Brett M. Kavanaugh, Mr. Trump’s nominee for the vacant seat once held by Justice Anthony M. Kennedy. The case could have far-reaching implications for the nation’s colleges and universities that consider race in their admissions processes.

The Justice Department is pursuing its own investigation into Harvard’s admissions policies based on a complaint it received.

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The Obama administration used statements of interest in novel ways to further its civil rights agenda, sometimes by making the unusual move of intervening in local cases.

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The Obama administration also intervened in local legal disputes over legal aid issues in New York, juvenile prisoners in California and transgender students in Michigan.

The Trump administration has filed statements of interest on other charged topics this year. {snip} This month it supported the merits of a suit that says Facebook abets discriminatory housing practices, in violation of the Fair Housing Act.