The DOJ Just Went After Harvard Admissions — And It Could Change Affirmative Action

In a new statement released on Thursday, the U.S. Justice Department weighed in on the Harvard admissions lawsuit that's brought affirmative action back into the national spotlight. The DOJ sided with the plaintiff, an organization representing some Asian-Americans who were rejected by the school. The group says that Harvard discriminated against these applicants by placing a ceiling on the number of Asian-American students it would accept.

"The students and parents who brought this suit have presented compelling evidence that Harvard’s use of race [as an admissions factor] unlawfully discriminates against Asian Americans," the DOJ said in a Thursday statement.

"Substantial evidence also demonstrates that Harvard admissions officers and committees consistently monitor and manipulate the racial makeup of incoming classes, which has resulted in stable racial demographics in Harvard’s admitted classes from year to year," the statement continues. "The Supreme Court has called such attempts to 'racially balance' the makeup of a student body 'patently unconstitutional.'"

The DOJ also commented on Harvard's "personal qualities" ratings, which it uses as an admissions criteria. The school has been accused of regularly rating Asian-Americans lower than other applicants in these categories.

Harvard responded by saying that it was "deeply disappointed" by the DOJ's statement on Thursday, according to the Times. It put out a statement of its own:

Harvard does not discriminate against applicants from any group, and will continue to vigorously defend the legal right of every college and university to consider race as one factor among many in college admissions, which the Supreme Court has consistently upheld for more than 40 years. Colleges and universities must have the freedom and flexibility to create the diverse communities that are vital to the learning experience of every student.

Affirmative action is a policy that many schools and employers began adopting in the 1960s to let in more minority students and employees. It's meant to help disadvantaged populations get opportunities that would otherwise be inaccessible to them because of a continued legacy of discrimination. But the applicants behind the Harvard lawsuit claim that the school gave spots that should have gone to them to less qualified applicants from other minority groups.

Critics of the DOJ's involvement in this case claim that the administration is merely using it as a "wedge" to sow racial discord. Many are also concerned that the Justice Department is using this case as a way to dismantle affirmative action, which has been used to bolster student diversity and provide opportunities.

So, how much of a difference will this statement from the Department of Justice make? In a 2017 paper, law student Victor Zapana defined DOJ statements of interest as "amicus filings that are filed in federal and state trial courts across the country." Like any other amicus brief, they are taken into consideration during legal proceedings even though they don't come directly from prosecutors. They can absolutely affect a case's outcome.

Attorney Scott G. Thomas told The New York Times in 2015 that these statements are the equivalent of "the Department of Justice putting their finger on the scale." (He was the defender in a case that sided with the prosecutors after the DOJ got involved.) The ACLU's Donna Lieberman agreed, telling the Times that the DOJ's statement of interest in her own case had been "a game changer." She said the statement of interest is "a powerful way to help support a fundamental right."

Beyond affecting the outcome of a case, Katie Benner at the Times notes that statements of interest also "put the federal government on the record in cases that are at the forefront of civil rights law."