Yale Threat Gives Trump a New Wedge Against Affirmative Action

(Bloomberg) -- The Justice Department has given Yale University its own admissions deadline: Stop considering applicants’ race by Sept. 15.

The government sent a letter to Yale this month saying the school illegally discriminates against Asian-American and White applicants in undergraduate admissions. The department could sue if Yale continues to consider race.

The letter, citing a two-year investigation, is the latest volley in the long culture war over affirmative action. Measures intended to help historically disadvantaged groups like African Americans are often seen as hurting historically advantaged groups like White people. However, the Supreme Court has previously allowed race-conscious admissions policies like those of Harvard University and Yale.

Challenging and suing Yale could be President Donald Trump’s way of bringing the issue back to the Supreme Court as soon as possible, now that the bench has more Trump appointees, said Audrey Anderson, the former general counsel of Vanderbilt University.

“They're trying to make affirmative action go away, because they believe that that’s the way the Constitution should be read,” she said.

An activist group opposed to affirmative action, Students for Fair Admissions, has already sued Harvard, the University of North Carolina and the University of Texas for their race-conscious admissions policies, alleging bias against Asian-American and White applicants. If there are conflicting decisions among federal cases, that tees up challenges the Supreme Court will want to review, Anderson said.

“Students for Fair Admissions is being strategic, and the Department of Justice is now helping them,” she said.

Yale, like other wealthy colleges that consider race in admissions, stands by its efforts to include low-income students and minorities.

The university said it enrolled about 400 more undergraduates eligible for income-based Pell grants over the past five years, an increase of 59%. Yale had 330 more first-generation undergrads in the most recent school year than five years earlier, a 48% jump.

“However, this success alone is not sufficient to achieve the diversity of experience and background that Yale seeks,” spokeswoman Karen Peart said in an email. “For that reason, Yale will continue to consider race as one element in its holistic admissions review.”

Other colleges are watching the cases closely. A spokeswoman for Brown University said school officials understand the Justice Department’s finding results from a specific investigation, not involving Brown’s admissions practices.

“There is U.S. Supreme Court precedent giving institutions of higher education the right to continue to consider race as one factor among many in our admissions process,” said spokeswoman Cass Cliatt. “Brown will continue its review of each applicant as a whole person as we build a well-rounded class.”

Since 2018, the Justice Department has continued to investigate possible anti-White and anti-Asian-American bias in admissions at Harvard and Yale. The department also removed guidelines from the administration of President Barack Obama that urged schools to take race into account, and the Trump administration has instead formally supported Students for Fair Admissions in its case against Harvard.

The group sued the school in 2014, seeking to end the use of race as an admissions factor. Last year, a federal judge in Boston rejected the group’s claims that the school employed quotas and engaged in “racial balancing.” Harvard won that round, as the judge said she found no evidence that the school discriminated against Asian-American applicants in favor of other minority groups.

A federal appeals court in Boston will hear the group’s challenge of that ruing in September. Although the Justice Department hasn't issued a finding from its investigation of Harvard, it filed a brief supporting the plaintiffs in their appeal.

Rachael Dane, a spokeswoman for Harvard, declined to comment about the case or the Justice Department's latest move against Yale.

Students for Fair Admissions is likely to take its challenges to the Supreme Court, if given the opportunity. A ruling there could transform college admissions across the country, either shoring up or ending decades of affirmative action efforts.

Like the activist group’s claims against Harvard, the Justice Department’s letter accuses Yale of favoring some racial groups over others. The government says this violates federal civil rights law by showing bias against applicants based on race and national origin and by making those criteria “the determinative factor” in hundreds of admissions decisions each year. The Trump administration initially demanded changes by Aug. 27 but extended its deadline to Sept. 15.

The Justice Department’s letter to Yale gives it a second path to fight affirmative action, said Jack Maguire, a former dean of admissions and assistant professor of physics at Boston College.

“It’s simply an attempt to put things on hold for another year,” said Maguire, who founded the enrollment consulting firm Maguire Associates in 1983. If the appeals court finds in favor of Harvard, he said, the department and other opponents of racial preferences are ready with another try: “They have the Yale case now.”

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