The brief showed the Trump administration is sympathetic to the plaintiff's argument. It also demonstrated anew the administration’s deep skepticism of affirmative action in education and pointed to the direction it is likely to take if the issue reaches the Supreme Court again. Under President Barack Obama, the Justice Department made legal arguments in support of how colleges use race in admissions.
In the Harvard case, the department said it drew several conclusions from the evidence. Among them: that Harvard has failed to explain how it weighs race against other factors in an application; that Harvard uses a “personal rating” that may be biased against Asian Americans; and that “substantial evidence” indicates admissions officers monitor and manipulate the racial makeup of incoming classes, despite court rulings that have found “racial balancing” unconstitutional.
“No American should be denied admission to school because of their race,” Attorney General Jeff Sessions said in a statement. “As a recipient of taxpayer dollars, Harvard has a responsibility to conduct its admissions policy without racial discrimination by using meaningful admissions criteria that meet lawful requirements.”
The department urged the judge to deny Harvard’s effort to secure victory in the suit without a trial. But it stopped short of endorsing the plaintiff’s view that courts should ban consideration of race in admissions.
Harvard has repeatedly denied wrongdoing and said the lawsuit is part of an ideological campaign to overturn Supreme Court rulings that allow affirmative action. On Thursday, the university said in a statement it was “deeply disappointed” that the Justice Department had sided with the plaintiff, “recycling the same misleading and hollow arguments that prove nothing more than the emptiness of the case against Harvard.”
But the university said the department’s action was “not surprising” given the Trump administration’s record.
“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,” the university said. “Colleges and universities must have the freedom and flexibility to create the diverse communities that are vital to the learning experience of every student.”
The case, likely to be tried in October, could become the next test of whether the Supreme Court is willing to overturn decades of precedent and ban consideration of race in admissions. The high court has affirmed multiple times, most recently in 2016, that schools may take race into account as one factor among many in pursuit of assembling a diverse class.
But the court also has put limits on the practice. It has prohibited racial quotas and pushed schools to consider whether they can achieve their goals through race-neutral alternatives, using financial aid and other recruiting tools to ensure socioeconomic and geographic balance. The premise is that such methods could produce adequate racial diversity indirectly, without subjecting applicants to racial bias.
The results of that theory have been tested in several states, including California and Florida, that prohibit consideration of race in public university admissions. Many educators say those results have proved disappointing, with the share of African Americans and other historically underrepresented minorities falling at the most competitive schools.
The plaintiff in the Harvard case, a group called Students for Fair Admissions, sued in 2014, alleging that the university unfairly and unlawfully discriminates against Asian Americans by limiting the seats they are offered in an incoming class in a quest to boost the chances of applicants from other groups. Harvard denies the allegation.
Civil rights groups and many selective colleges and universities have filed briefs supporting Harvard and arguing for preservation of the status quo. These schools describe their admissions process as “holistic," saying they review the entirety of an applicant’s academic credentials and background — including race and ethnicity — before deciding whether to offer a seat.
The Justice brief took aim at the inner workings of an admissions shop that reviews more than 40,000 applications a year and offers entry to fewer than 5 percent. It said Harvard keeps "close tabs" on the racial makeup of the emerging class as it whittles the applicant pool. It also pointed to the custom of "lopping" applicants near the end of the process while admission officers are shown a spreadsheet that "prominently displays applicants' races." And it argued that Harvard has "never engaged" in a good-faith consideration of race-neutral alternatives.
Edward Blum, president of Students for Fair Admissions, said the group was "gratified" by the Justice brief and looks forward to forcing more disclosure of "gravely troubling evidence" about Harvard admissions that remains under court seal.
Thursday’s action marked the Trump administration’s second direct intervention in the case this year. In April, the Justice Department urged U.S. District Judge Allison D. Burroughs to allow internal documents about Harvard’s admissions process relevant to the suit to be made public.
Harvard is one of the world’s most selective universities. Of about 1,962 applicants admitted to this year's entering class, nearly 23 percent were Asian American and nearly 16 percent African American. Roughly 12 percent were Latino, and a little more than 2 percent were Native American or Native Hawaiian. Those figures include students who identified with more than one race or ethnicity. The rest of the admitted Class of 2022 were white students from the United States and international students from dozens of countries.