Berry & sims attorney Audrey Anderson was interviewed for the July 6 episode of Bloomberg Law Radio and the July 11 edition of the Bloomberg Law podcast discussing what comes next as new complaints are already being filed in connection to the landmark Supreme Court decision striking down the ability of colleges and universities to consider race in admissions decisions.
Complaint Against Donor and Legacy Preferences
A complaint has been filed with the Department of Education alleging that Harvard provides special preference in its admissions process to hundreds of white students solely because of who their relatives are, arguing that legacy and donor admissions give an unfair advantage to mostly white students and discriminate against students of color.
Audrey described the complaint that the legacy and donor preferences that Harvard gives in its admissions process makes it much more likely that applicants who are relatives to graduates or major donors are more likely to be accepted. “The complainants allege that violates Title VI, which is a federal law that makes it illegal to discriminate on the basis of race if you receive federal funding,” she explained. “More particularly, they say it violates a regulation the Department of Education has issued that says you can’t have a practice or policy that has a disparate impact based on race.”
“What I think this complaint is really about is just a way to put political pressure on Harvard and other highly selective institutions to get rid of their donor and legacy preferences – something that other institutions have already done,” Audrey added.
It’s difficult to predict the outcome because there has not been a lot of action by the federal government to enforce their disparate impact regulation, meaning there is little precedent. Every federal agency has regulations like these to outlaw disparate impact discrimination, but the Supreme Court issued a decision in 2001 in Alexander v. Sandoval holding that a private party could not bring a private lawsuit to enforce these types of policies. However, Justice Scalia wrote in the opinion that, if the question was before him, he would find that these regulations outlawing disparate impact were not authorized by Title VI itself and would be unenforceable, but that question was not before him and thusly not affected by the ruling. Still, there’s a question of whether these disparate discrimination issues are legal since Title VI only specifically addresses “intentional discrimination.”
If this came to the Supreme Court, Audrey said it is likely that six members of the court would agree with Justice Scalia and say that this regulation that the Department of Education and every other agency in the federal government has, which prohibits rules that have a disparate impact based on race, is not allowed by the text of Title VI. The text of Title VI only prohibits “intentional discrimination.”
Importantly, this complaint was filed with the Department of Education and is not a lawsuit that will play out publicly. Likely next steps are for the Department of Education’s Office for Civil Rights (OCR) to decide whether or not it wants to open an investigation into this complaint. This would play out privately with little information made public until the conclusion when the parties reach some type of settlement agreement and announce what Harvard has decided to do. However, because there is so much information already in the public, OCR may simply make their own decisions and not contact Harvard.
Potential Impact and What’s Next
Ultimately, the goal of this complaint is to push Harvard to stop using legacy and donor preferences, since these are two preferences they can remove to help promote racially diverse bodies. While research shows those improvements have been marginal in schools that have already done away with these preferences, schools will be looking to do everything they can that’s not race conscious admissions in light of the affirmative action ruling.
As schools look into what they can now do to promote a racially diverse campus, Audrey anticipates there will be significant litigation over the years as plaintiffs will accuse schools of giving priority to issues they allege are proxies for race, such as determining a student is a person of color based on information in their admissions essay and giving a point for that determination.
Going forward, Audrey suspects that schools with the ability to be selective will reconsider what are the measures and traits that are really going to be best for students that are going to succeed at their college or university. However, most schools are looking at a different problem where they’re looking at a drought of an applicant pool as less students apply for college – they may be more focused on filling seats.
The podcast episode, “The Next Fight in College Admissions,” was released by Bloomberg Law on July 11 and is available online or wherever you get your podcast content.