On August 13, the Civil Rights Division of the U.S. Department of Justice (DOJ) informed Yale University (Yale) of its determination that Yale has violated, and is continuing to violate, Title VI of the Civil Rights Act of 1964 by the way that it uses race in its admissions process for undergraduate students. Yale has publicly responded that it plans to continue its race-conscious admissions program which it contends “absolutely” complies with Supreme Court precedent. It, therefore, appears that DOJ will be bringing a Title VI enforcement action in federal court against Yale, possibly by the end of this month.

This is just the latest in a series of recent legal actions challenging the use of race in admissions by private and public universities. Higher education institutions that use race-conscious processes for admissions and other programs should be aware of these actions and the following possibilities:

  • Their use of race could be challenged by the government or private parties.
  • Once this issue reaches the U.S. Supreme Court again, the continued ability of institutions to use race in student admissions is far from guaranteed.

DOJ Action Against Yale

DOJ started its investigation of Yale over two years ago, in April 2018. Since that time, Yale has provided DOJ with extensive data on its admissions process and results. DOJ also interviewed Yale admissions officials. According to Yale, DOJ made its findings against Yale without receiving all the information DOJ had requested and while Yale was still fully cooperating in DOJ’s review. Indeed, DOJ’s four-page findings letter is consistent with a conclusion that DOJ rushed to put out its findings against Yale. The letter is thin on the exact findings made by DOJ as to Yale’s program and heavy on the rhetoric of DOJ’s interpretation of the relevant Supreme Court decisions.

DOJ begins its letter by acknowledging that current Supreme Court precedent allows a college or university to use a race-conscious admissions policy where it demonstrates a compelling purpose for the use of race and that its use of race is narrowly tailored to achieving that compelling purpose. DOJ found that Yale’s admissions program fails on both fronts. Without specifying how Yale defines its goals or how they could be more definite, DOJ concluded that Yale’s diversity goals are not sufficiently measurable but instead are “vague, elusory, and amorphous.”

As for narrow tailoring, DOJ found that Yale’s admissions process failed on the following grounds:

  • Yale uses race at multiple points in the admissions process which results in a “multiplied effect of race on an applicant’s likelihood of admissions.” DOJ did not provide any examples, however, of such multiplied effects or describe the effect of such multiplication.
  • Yale uses race as more than just a “plus factor” but rather as the predominant criteria in “many” admissions decisions. DOJ found that for “the great majority” of applicants, Asian American and white applicants have only one-tenth to one-fourth of the likelihood of admission of African American applicants with “comparable” academic credentials.
  • Yale’s use of race unduly burdens white and Asian American students. Asian American students were admitted to Yale in proportions below their representation in the applicant pool for each of the 17 years for which Yale provided data and whites were admitted to Yale in proportions below their representation in the applicant pool for the majority of those years. DOJ does not explain why this is an indicator of undue burden.
  • Yale is racially balancing its class, as the proportions of students in different racial groups appear to have remained remarkably stable for the last 10 years.
  • Yale’s consideration of race-neutral alternatives appears to be conclusory, “includes no detailed studies by Yale about Yale and its admissions process” and instead relies on anecdotal information about what might be happening at other universities. In addition, Yale has no set endpoint for its use of race.

While DOJ stated that it wished to gain voluntary compliance by Yale, the only means it provided for Yale to attain compliance was for Yale to not use race in its admissions process for the upcoming 2021-22 academic year. It gave Yale until August 28 to inform DOJ whether it would agree to that remedy. As noted above, Yale’s public statements indicate that it will not agree to that remedy.

This findings letter by DOJ is unusual after a two-year investigation. The first three pages of the Yale enforcement letter could be taken from the amicus brief filed by the United States in the action pending against Harvard University in the Students for Fair Admissions case discussed below and suggest more of a position against all race-conscious affirmative action programs than the finding of any particular shortcoming in Yale’s admissions process. A more typical enforcement letter would include more specific and detailed analysis of how Yale’s program violated the law and specifying particular actions Yale could take to bring the program into compliance, or why no such actions could be taken that would suffice to bring the program into compliance.

What reason would DOJ have to issue a findings letter against Yale that suggests an incomplete analysis? That may be best explained by the upcoming election. If DOJ files suit before the November election as it seems poised to do, it becomes administratively and politically more difficult for DOJ to change course as to its position on Yale’s program after the election. If President Trump is reelected, this does not matter, but if President Trump is not reelected, filing this suit now could be seen as a means by the current political leadership of DOJ to imprint its policy judgments on the next administration, even if that administration is of a different political party. A DOJ under the leadership of an Attorney General appointed by Joe Biden, should he be elected in November, would not be precluded from taking a different position as to Yale’s admissions program, but it would have to do so publicly and in a way that set aside DOJ’s prior findings.

Other Affirmative Action Cases     

As noted above, the action against Yale is just the most recent in a string of actions against colleges and universities using race-conscious admissions programs. Below is a quick update to the other high profile affirmative action cases pending across the country

Students for Fair Admissions [SFFA] v. Harvard, in which the district court held last fall that Harvard’s race-conscious admissions program satisfied strict scrutiny, is being heard by the U.S. Court of Appeals for the First Circuit on September 16. In addition to the parties, the court will also hear oral argument from the United States as amicus in support of SFFA. A decision from the First Circuit will likely be issued sometime in 2021.

Students for Fair Admissions v. University of North Carolina, in which the district court denied cross motions for summary judgment in September 2019, is set for a two-week bench trial in the U.S. District Court for the Middle District of North Carolina beginning on November 9. The parties were to begin trial in May, but the date was postponed due to the COVID-19 pandemic. The complaint in the North Carolina case looks very similar to what was filed against Yale. One difference that may be significant is that in North Carolina, the court has allowed a group of students to intervene as parties on the defendants’ (i.e., University’s) side of the case. If the trial goes forward in November, a judgment from the district court should be expected in 2021.

Students for Fair Admissions v. University of Texas, Austin. This complaint was filed on July 20 in the U.S. District Court for the Western District of Texas. It appears that the University of Texas has not yet been served. SFFA represents two white students who were denied admission by the University of Texas at Austin in 2018. The University of Texas at Austin, of course, was the subject of the two most recent Supreme Court decisions on affirmative action in college admissions, Fisher I and Fisher II. In 2016, the Supreme Court held in Fisher II that the race-conscious admissions plan used by the University of Texas passed constitutional muster.

In this complaint, SFFA alleges that important evidence was withheld by the University of Texas in the Fisher litigation which shows that the University uses its “diversity” rationale “primarily as a pretext to justify the admission of underqualified, well connected applicants.” Of course, a preference for “well-connected” applicants does not violate the Constitution. SFFA alleges, however, that for 29% of these well-connected applicants, racial, ethnic or state geographic diversity may have been a factor and therefore the analyses on which the courts relied in Fisher were in error. In addition, SFFA alleges that the University of Texas has increased its reliance on race since the 2016 Fisher II decision and has not completed a renewed study on the availability of race-neutral alternatives.

What Will Happen Next?

In the first four months of 2021, we are likely to see a decision from the First Circuit in the Harvard case and a decision from the district court after the bench trial against the University of North Carolina. Following those decisions, the disappointed parties will be certain to ask for consideration of their cases at the next level: the Supreme Court for Harvard and the Fourth Circuit for the University of North Carolina. While the Supreme Court generally likes to grant certiorari where there is a split in authority between the federal courts of appeals, on a high-profile case (and a decision concerning Harvard’s admissions program would be considered a high-profile case) the Court will often grant certiorari without waiting for a split to develop. If the Supreme Court granted certiorari on the Harvard case, it is unlikely that it would be heard before the term beginning in October 2021.

Meanwhile, the case against Yale by the United States (should it be filed and proceed) and the latest case against the University of Texas at Austin presents the next “set” of cases, one against a high-profile private institution and one against a flagship public institution, that will be making their way through the courts at roughly the same time.

It appears that SFFA is embarking on strategic litigation to obtain a reversal of the Supreme Court’s rulings in Grutter v. Bollinger and Fisher II. This is clear from the counts in SFFA’s complaints against Harvard, North Carolina, and Texas alleging that any use of race in admissions violates the Equal Protection Clause and Title VI and any Supreme Court decisions to the contrary should be overturned. And for the time being, it appears that DOJ is assisting SFFA in these efforts. Although DOJ has not argued in the Harvard case or in its findings letter against Yale that Grutter or Fisher II are in error, the arguments DOJ makes come exceedingly close to a position that there is no race-conscious admissions program, in practice, that could adequately define a racial goal and also be narrowly tailored. SFFA and DOJ are trying to set up several test cases, to create a split in the circuits, or to gain the interest of the Supreme Court through a single high-profile case.

When the Supreme Court next takes up the question of whether any race-conscious admissions program by a college or university can be consistent with the Constitution, the outcome is not at all clear. The bulk of the Justices making up the majorities in Grutter and Fisher II are no longer on the Court. A case bringing the question of college affirmative action to the Supreme Court will be the first time the issue will be considered by Justices Kagan, Gorsuch and Kavanaugh. Justice Kagan can be expected to join Justices Ginsburg and Breyer in reaffirming Grutter and finding some college affirmative action plans that pass constitutional muster under that standard. Justices Gorsuch and Kavanaugh would be expected to join Justices Thomas, Alito, and Chief Justice Roberts in disagreeing with the reasoning of Grutter. And while Chief Justice Roberts has recently sometimes played the role of a “swing” vote to join the more liberal members of the Court to make a five-justice majority, he has been a consistent hard-liner against the use of race-conscious admissions policies. And the Court will be reminded that Justice O’Connor, in writing the majority opinion in Grutter in 2003, noted that affirmative action should no longer be necessary 25 years in the future, a time that is fast approaching.

Colleges and universities that currently use race-conscious means for admissions or other programs should ensure that the goals for these programs are well defined and linked to the mission of their institution. The means for attaining those goals must be narrowly tailored and reviewed frequently. And institutions that are committed to racial diversity should be aware that there is a significant possibility that in the coming years, race-conscious admissions will not be a tool that is available to them in reaching that goal.

If you have any questions regarding the above, please contact the author.