A hearing on the Harvard case is scheduled for Tuesday in U.S. District Court in Boston.
The plaintiffs, called Students for Fair Admissions, accuse the university of discrimination against Asian Americans and have gathered evidence through the pretrial phase of discovery that they say will substantiate their claim.
Harvard denies the allegation and is seeking to prevent public disclosure of any evidence its attorneys say would compromise the privacy of applicants and undermine the admissions process. The university, like its peers, asserts that race is only one factor among many in what it calls a holistic review of applications. It also contends that schools have a compelling educational interest in seeking racial diversity. The Supreme Court has repeatedly upheld the constitutionality of the use of race in college admissions despite perennial debate about affirmative action.
Last year, the Justice Department also said it is investigating Harvard’s use of race in admissions.
Separately, the department has launched a probe of information-sharing practices among colleges related to “early decision” admissions. Students who apply through early decision commit to attending a school if they are accepted. Admission rates tend to be significantly higher for such applicants than for those seeking entry through the standard admission cycle. Some prestigious schools pick as many as half of their students through early decision.
In a letter sent last week, the Justice Department asked colleges to preserve certain records related to their admission process, including “agreements, both formal and informal, to exchange or otherwise disclose the identities of accepted students with persons at other colleges or universities.” The investigation was first reported Friday by Inside Higher Ed.
The letter, according to a copy obtained by The Washington Post, said the department’s Antitrust Division “has opened an investigation into a potential agreement between colleges relating to their Early Decision practices.”
Taken together, the department’s actions mark a notable effort to scrutinize two of the most sensitive aspects of selective admissions: the role of race and the use of early admissions.
“It’s fine to shine a light on the processes,” said Terry W. Hartle, a senior vice president of the American Council on Education, which represents college and university presidents. “They can either withstand scrutiny or they can’t. I think most of them can.”
But Hartle said federal investigations can be an “expensive, antagonistic process” that doesn’t necessarily lead to greater public understanding.
The Justice Department declined to comment.
In the lawsuit, Students for Fair Admissions alleges that Harvard’s practice of considering race unfairly limits the number of Asian Americans admitted to the oldest college in the country, in violation of civil rights law. The group intends to seek summary judgment in the case and wants to make public through that action information it has gathered about Harvard admissions.
The plaintiffs said they have seven types of documents: historical admissions data; summaries and compilations based on data Harvard produced; internal Harvard reports; emails among Harvard admissions officers and employees; other documents related to the admission process; deposition transcripts; and “expert reports.”
William S. Consovoy, attorney for the plaintiffs, wrote to Judge Allison D. Burroughs that the group would “ensure that the identity of any Harvard applicant or student (present or former) will not be disclosed. This is appropriate and does not impede the public’s right of access.”
Consovoy added: “This suit is not about the treatment of individual students. It is about whether Harvard has engaged in a pattern of discrimination.”
Attorneys for the department’s Civil Rights Division filed a brief Friday in support of disclosure, writing that “applicants to Harvard, their families, and the general public have a presumptively paramount right to access the summary judgment record in this civil rights case.”
Felicia H. Ellsworth, an attorney representing Harvard, proposed in a letter to Burroughs that documents and information the plaintiffs want to file with their argument remain “provisionally” under a court seal while the two sides confer over the material. The court, Ellsworth wrote, could then resolve any disputes.
“Harvard understands that there is a public interest in this case and that the public has certain — though not unfettered — interests in access to judicial materials,” Ellsworth wrote. “Those interests, however, must be balanced against the need to protect individual privacy and confidential and proprietary information about the admissions process.”
Ellsworth wrote that the two sides exchanged through discovery more than 90,000 pages of documents designated as “either Confidential or Highly Confidential.” Releasing details about the mechanics of the process could put Harvard at a competitive disadvantage and undermine the admissions office, she wrote.
“Publicizing this information would cause applicants and college consultants to seek to orient their applications to what they perceive Harvard wants to the detriment of the authenticity of the information Harvard receives and its ability to make its best judgments,” Ellsworth wrote.