Why the U.S. Is Threatening Yale Over Race and Admissions

(Bloomberg) -- America’s long struggle with affirmative action, part of an agonizing national reckoning with racism, took another twist when the U.S. Justice Department threatened to sue Yale University if it didn’t immediately stop using race as a factor in undergraduate admissions. The U.S. claims Yale violates federal civil rights law by making race and national origin “the determinative factor” in hundreds of admissions decisions each year, fostering “stereotypes, bitterness and division.” Foes of affirmative action -- broadly defined as special efforts to counter the persistent effects of discrimination -- sued Harvard University in 2014 on similar grounds.

1. Why Yale?

It’s a prime target. The Justice Department’s letter, which comes as President Donald Trump campaigns for a second term partly by leveraging race, caps a two-year investigation that began after an Asian-American advocacy group filed a bias complaint against the school. The U.S. said Asian-American and White applicants have only one-tenth to one-fourth the chance of being admitted as African-Americans with comparable academic credentials, and accused Yale of “unlawfully dividing Americans into racial and ethnic blocs.” Critics of the government’s move say the U.S. may have targeted Yale after Harvard defeated similar claims.

2. What does Yale say?

The Ivy League college, located in New Haven, Connecticut, said it “categorically denies” the claims and vowed to maintain what it says is a perfectly legal admissions process in compliance with decades of Supreme Court precedent. It says a diverse student body is critical to the education it offers and that it considers many factors beyond test scores and grades, including extracurricular interests, leadership potential, an applicant’s background and how a student could contribute to its community.

3. What happened in the Harvard case?

Last year, U.S. District Judge Allison Burroughs in Boston issued a 130-page decision, finding that Harvard doesn’t discriminate against Asian-Americans when it considers race as one factor among many. The lawsuit was brought by a group led by affirmative action foe Edward Blum, who has repeatedly back such suits, and supported by Trump’s Justice Department. With another Blum challenge pending against the University of North Carolina at Chapel Hill, the Supreme Court could decide to revisit affirmative action once the conflicts reach the high court. University of New Mexico law professor Vinay Harpalani sees the Harvard and Yale conflicts as “hand in hand.”

4. What does the law say?

The Supreme Court has upheld the consideration of race in admissions as one factor among many in several prior decisions. In a 2016 ruling, the court reiterated that a university “may institute a race-conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity.”

5. How do colleges choose their students?

Holistically, they say. Schools like Harvard and Yale say they consider the whole student beyond just grades and test scores, with race among an array of factors including extracurricular activities, socioeconomic background and proposed areas of study. With acceptance rates in the low single digits, elite colleges can fill each freshman class with stellar SAT scores and perfect GPAs many times over. As of last year, Harvard had about 35,000 applicants for about 2,000 slots. At its trial, the college put an economist on the stand who said his data analysis showed an appealing Harvard applicant was “a student who is well-qualified academically but in addition has extracurricular strength and a personal strength and, if possible, athletic strength.”

6. What do critics say?

That colleges are discriminating while claiming to be fighting discrimination. Then there were the embarrassing disclosures at Harvard’s trial of how far the school sometimes goes to admit sports stars and the children of alumni and big donors.

7. What happens next?

There could be a round of bargaining between the Justice Department and Yale, with the new admissions cycle looming. But to take both parties at their word, a court fight is likely -- and might play well to the president’s base. Beyond Yale, opponents of affirmative action may take their fight to voters, as they did in California in 1996 with Proposition 209, the ballot measure that barred state institutions from considering race, ethnicity or gender in hiring and admissions.

8. What does the future of affirmative action look like?

Roiled. Blum has been at it for years and shows no signs of quitting. As for ballot measures, Prop 209’s passage demonstrated their impact. It immediately suppressed minority enrollment at the University of California, including at the UCLA School of Law, Jennifer Mnookin, the law school’s dean, said during the Harvard trial. UCLA then started the Law Fellows program to encourage undergraduates from underrepresented backgrounds to consider law school. The good news, Mnookin said, is that the law school was able to attract a diverse class even without traditional affirmative action. The bad news, she said, is that “it’s a bit like running a race with your hands tied behind your back.” Proponents say race still matters in American society, and point to statistics that show a drop in minority enrollment at universities that no longer use racial preferences and a lack of diversity in professions like science, technology, engineering and mathematics.

The Reference Shelf

• A QuickTake explainer on affirmative action.
• The Justice Department press release on the Yale case, and Yale’s response.
• Standardized testing is another hot-button issue when it comes to race and college admissions.

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