As we discussed earlier, Harvard has been hit with a complaint in a federal civil lawsuit from 2014 that alleges that it limits the number of Asian students despite their having substantially higher scores than other admitted in the name of race diversity. The lawsuit by Students for Fair Admissions seeks an injunction on the use of race in admissions. What is striking is how universities have resisted efforts to review the data on the score differentials created by admissions using race criteria. Rather than defend their decisions with full transparency, schools have fought hard to withhold the data for decades. Why? If race is just one of many criteria, the differential should not be pronounced. If it is pronounced, there should be a good-faith debate on how to balance the worthy goals of diversity with the importance of merit-based admissions.

The lawsuit, brought by a nonprofit called Students for Fair Admissions, said the practices violate federal civil-rights law and asks a federal judge to prohibit Harvard from using race as a factor in future undergraduate admissions decisions. The suit is pending. The Justice Department was compelled to send a letter to Harvard on Nov. 17th that the school was being investigated under Title VI of the Civil Rights Act of 1964, which bars discrimination on the basis of race, color and national origin for organizations that receive federal funding. The letter notes that Harvard failed to comply with a Nov. 2 deadline to provide documents related to the university’s admissions policies and practices. We have previously discussed how schools have rejected students with substantially higher scores for college admissions to foster diversity. Some academics, myself included, have raised concerns about the significant differences in academic scores — a difference that is particularly great with regard to Asian Americans. For that reason, I share the concern that this constitutes a form of discrimination based on race. While there remains a permissible range in which schools can select students to achieve a diverse and pluralistic student body, the differential of admissions scores can be alarming in some cases and suggest that students are being rejected simply because of their race.

I have previously discussed how schools have largely circumvented prior rulings against affirmative action programs. While many defend race-conscious admissions in terms of the need for affirmative action to correct historic discrimination, the Supreme Court barred such affirmative action in 1978 in Bakke. Justice Lewis Powell allowed for only a limited use of race for the purpose of achieving “diversity” in classes. Notably, in Bakke, the Medical School at the University of California at Davis had a more modest program over all by setting aside 16 of the 100 seats for “Blacks,” “Chicanos,” “Asians,” and “American Indians.” Those slots were justified as a matter of diversity, but found unconstitutional by the Court. However, the Court was deeply fractured. Five justices Powell and the plurality found that Bakke had to be admitted and that the weight given race was unconstitutional.

The exception however soon swallowed the rule as schools fought to maintain levels of minority students as a diversity rather than an affirmative action program. Many academics privately admit that the real purpose of these programs remains the original affirmative action rationale to ensure greater numbers of minorities in higher education.

The fact that the case continues to be referred to as the “affirmative action case” shows how little has changed since Bakke when the Court supposedly closed the door on affirmative action in admissions. By allowing race to still be used for diversity, educators sought to achieve the same numerical goals as a matter of diversity and achieving a racial “critical mass.”

Harvard’s non-compliance with the demand from the civil rights department is troubling and may force legal action by the government. What is equally bizarre is that the letter from John M. Gore, the acting assistant attorney general for the Civil Rights Division, notes that he materials requested by the Justice Department were already provided by Harvard to the plaintiffs in the lawsuit. He states that “Harvard has pursued a strategy of delay and has not yet produced even a single document.”

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