Story highlights The Justice Department's interest in Harvard's policies stems from a 2015 federal complaint

It has concluded the school is "out of compliance" with federal law

Washington (CNN) The Justice Department is actively investigating Harvard University's use of race in its admissions policies and has concluded the school is "out of compliance" with federal law, according to documents obtained by CNN.

The Justice Department's battle with Harvard potentially sets the stage for the first major legal test of affirmative action policies under the Trump administration. Last year, the US Supreme Court ruled that race can be one among many factors universities use in making admission decisions.

Two letters from the Justice Department's Civil Rights Division indicate that Harvard has challenged the department's authority to investigate, and further state that if the school fails to provide documents to the department by December 1, the agency may file a lawsuit against the school.

"As we have repeatedly made clear to the Department of Justice, the university will certainly comply with its obligations under Title VI. In the process, we have an obligation to protect the confidentiality of student and applicant files and other highly sensitive records, and we have been seeking to engage the Department of Justice in the best means of doing so," Anna Cowenhoven, Harvard's associate dean of communications, said in a statement to CNN.

Additional correspondence obtained by CNN shows that the Justice Department formally notified Harvard it was under investigation on September 20 and since that time, lawyers for the agency and the school have been trading letters over the scope of the department's document requests, despite what Harvard noted were "its concerns about the highly unusual nature of this investigation."

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