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The Department of Justice Filed Suit Against Harvard For Discrimination. Here’s What That Means.

But that doesn't mean that the lawsuit won't have detrimental effects to them and other students of color.

Harvard University has recently come under fire after several action groups sued the university under allegations that it routinely discriminates against Asian American applicants. A group of students, backed by the Students for Fair Admissions and Ed Blum, a controversial lawyer who sued University of Texas after a white applicant was not accepted to the competitive university, are now fighting to overturn Affirmative Action, a law which allows universities to consider race among a myriad of other factors in terms of admission, saying that it discriminates against students. The ACLU filed a brief in support of Harvard; then, the Department of Justice joined suit with Ed Blum and SFA. What will this case mean for prospective college students and their parents? We spoke to Dennis Parker, the director of the racial justice program at the ACLU, about the brief they filed in support of Harvard, whether or not Harvard is discriminating against Asian-American students, and what this case could mean for the college admission process in general.

This lawsuit is a bit confusing, as there are a number of parties involved. Who filed it, and, in your opinion, what does it mean for students and for affirmative action?

This is the most recent, in a series of lawsuits, that are brought by Ed Blum alongside the Students for Fair Admissions. He challenged the admissions program at the University of Texas. His goal is to eliminate any consideration of race in admission at higher ed institutions.

The purpose of the case is to end the consideration of race, and I assume, ethnicity, when making decisions about whether to admit students. What that threatens to do is undo the current state of the law which says that you can consider race as one of many factors in determining whether to admit a student as long as it satisfies requirements of what’s called ‘narrow-tailoring.’ Narrow-tailoring is a program that is designed to achieve a diverse student body in a way that does not have a negative impact on anyone because of their race or ethnicity.

So what happens if Ed Blum and the Students for Fair Admissions get what they want?

If the plaintiff prevail and get what they want, basically, they would prohibit schools from taking into consideration, at all, someone’s race or ethnicity. One of the arguments that has been raised in this case is to look largely at test scores as a basis for making admissions. There have been a number of briefs filed on behalf of Harvard in support — ours included — talking about why it’s important that a school be able to create a careful program that appropriately takes race into consideration. The interests are varied.

So it’s not just that Harvard might be discriminating against their Asian American applicants. The suit would like to overturn Affirmative Action entirely.

The bottom line is the supreme court has held on numerous occasions that creating a diverse student body is a compelling governmental interest, that it’s something that schools can do and it does not violate the constitution. Race is one thing you can consider along with other factors, like who would be most qualified to be in a school, and who would contribute most to the learning environment to the school. Affirmative Action helps create opportunities for qualified students who might otherwise have difficulty gaining admission to the schools to get in.

I noticed that a lot of the issue as it comes to Harvard’s admissions process was the “personality” component of the application, and that Asian American students were rated lower on “personality” than their counterparts. I thought that, when I read that, that didn’t seem right.

We are not saying that Harvard doesn’t engage in practices that might be problematic. That’s not at all what we’re saying. And, as to the role of personality in the admissions process, that’s a very hotly contested issue. Experts on both sides have weighed in. I am not qualified to speak about the specifics of that argument.

So what is the ACLU doing in this lawsuit?

The solution is not to throw the baby out with the bathwater and say: ‘you can never consider race.’ We should make sure that the universities can take race into consideration. The law that already exists presents rigorous tests about whether or not something is acceptable under the constitution. Those tests is what assures that there is as much fairness as possible. Our fear is that this lawsuit will be used as a way to get rid of affirmative action.

But doesn’t the Department of Justice, which just joined suit with Ed Blum and tktk, support affirmative action?

Under the Obama Administration, the Justice Department and the Department of Education created guidance letters that outlined what the law was. Those have been rescinded by the current Justice Department. They are now taking a position that is different from the one that was taken by the Justice Department in the Texas case. We believe that represents backtracking and opposition to the broader question of affirmative action, and that’s what we fear.

Why would getting rid of Affirmative Action be a bad thing?

After a California ballot initiative that banned consideration of race, the impact was immediate. There was a truly remarkable decrease in the number of black, Latino and Indian students who were admitted to the University of California schools. One of the briefs that was submitted in the Harvard case are briefs from California saying denying the ability to consider race hampered school’s ability to get the best, most diverse student body that they could — one that represents the state. This is not a question of qualified vs. unqualified. This is a question of: how do you get a quality, diverse student body by looking at as many factors as you can?

So what’s the problem with focusing on test scores more instead of other factors like race or ethnicity?

The fact that you take test prep courses, in part, measures your ability to afford courses. But the other thing is that SAT scores limited in terms of their predictive value. Test scores are not the final say on who is going to do best. or who is going to graduate. Over-relying on that can have have the impact of both weeding low socioeconomic students and students of color. That’s a real problem.

If you were looking to hire a doctor, I doubt you would ask a person what their MCAT score was. You would want to know what their experience is, and when they graduated, what their job experience is. You would want to speak with them to see how empathetic they were; how good they are at explaining things. The thought that you would make a decision as important a admission into schools based solely on test scores is very worrisome.

But if Harvard has legitimate discriminatory issues as it comes to their admissions process, shouldn’t they be punished for that?

Bringing the case on behalf of Asian students represents a very cynical way of achieving that goal on ending affirmative action. Because you’ve pitted one group; one community of color, against others. Asian-Americans are not a monolithic group in which everyone is the same. Is something that’s offensive to a lot of people. In fact, it is likely that affirmative action has helped a large number of Asian American students. Some Asian American students are defending Harvard in this case.

Some evidence that’s been presented suggests that if you were to eliminate considerations of race, it would give a slight boost to the number of Asian applicants who were admitted but the greatest benefit would go to white students, to the detriment of Black, Latino, Indian, and Native American students.

Besides promoting a more diverse student body, what are the benefits of Affirmative Action?

One of the interesting things is that if you look at the briefs that have been supported in the past and now, these affirmative action programs, they come from the army and businesses. All of whom say: “We need to have a cadre of diverse, educated people in order for us to function.”

That’s a recognition of the value that a diverse learning environment gives you over ones that are segregated. It’s not just a question of how does it benefit one small group of students. It’s a question of how it benefits everyone in the school, and ultimately, everyone in the country.