Yale defiant as Justice Department finds that it violated the civil rights of applicants with racial and national origin discrimination

The United States Department of Justice has placed Yale University on notice that it has been found in violation of Title VI of the Civil Rights Act of 1964 by discriminating on the basis of race and national origin, putting more than half a billion dollars in yearly federal funding of the university in jeopardy

The DOJ's letter of notification sent to Yale's lawyers lays out the case and is worth reading in its entirety.  But here are some key findings:

Yale grants substantial, and often determinative, preferences based on race to certain racially-favored applicants and relatively and significantly disfavors other applicants because of their race. Yale's race discrimination imposes undue and unlawful penalties on racially-disfavored applicants, including in particular Asian American and White applicants.

For example, the likelihood of admission for Asian American and White applicants who have similar academic credentials is significantly lower than for African American and Hispanic applicants to Yale College. For the great majority of applicants, Asian American and White applicants have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials.

Yale's Sterling Memorial and Bass Libraries
Photo credit: Gunnar Klack, licensed under the Creative Commons Attribution-Share Alike 4.0 International license.

The legal burden of proof is on Yale:

To comply with Title VI, Yale cannot engage in discrimination barred by the Equal Protection Clause of the United States Constitution. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Because Yale admits that it usesrace in admissions, Yale bears the burden of showing that it satisfies strict scrutiny. This means that Yale bears the burden of demonstrating that its use of race is narrowly tailored to serve a compelling interest. E.g., Fisher v. University of Tex. at Austin, 570 U.S. 297, 309-11 (2013) (Fisher I); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).

Yale asserts that it has a compelling interest in obtaining the educational benefits of diversity. Yale's diversity "goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them." Fisher v. University of Tex. at Austin, 136 S. Ct. 2198, 2211 (2016) (Fisher II). Furthermore, strict scrutiny requires Yale to "prove that the means chosen by" the school to achieve its stated interest in diversity "are narrowly tailored to that goal." Fisher I, 570 U.S. at 311.

Yale is also violating other conditions that the Supreme Court has required to justify affirmative action discrimination.

Proving that a race-conscious program is narrowly tailored is a "heavy burden." Fisher II, 136 S. Ct. at 2211; Parents Involved, 551 U.S. at 747. Narrow tailoring requires, among other things, that a university use race only as a "plus" factor "in a flexible, nonmechanical way." Grutter v. Bollinger, 539 U.S. 306, 334 (2003). Race cannot be "decisive in practice." Gratz, 539 U.S. at 272 & n.19; accord Grutter, 539 U.S. at 337. In other words, narrow tailoring requires that race cannot be "the defining feature" of the application or "the predominant factor" that decides an applicant's admission. Grutter, 539 U.S. at 317, 320, 337. Additionally, "racial balancing" is "patently unconstitutional" under the Equal Protection Clause, id. at 330, and thus also violates Title VI. In addition, an admissions program cannot "unduly burden individuals who are not members of the favored racial and ethnic groups." Id. at 341 (citation omitted). Finally, a university's "race-conscious admissions policies must be limited in time." Id. at 342.

Applying these principles, and based on our review of information we obtained during our investigation, we have determined that Yale violated, and is continuing to violate, Title VI.

First, it appears Yale's diversity goals are not sufficiently measurable. Our investigation indicates that Yale's diversity goals appear to be vague, elusory, and amorphous. Yale's use of race appears to be standardless, and Yale does virtually nothing to cabin, limit, or define its use of race during the Yale College admissions process.

Second, Yale's race discrimination in undergraduate admissions is also not narrowly tailored. Our investigation revealed that Yale's discrimination affects hundreds of admissions decisions each year. Yale uses race at multiple points in its admissions process.

Yale uses race when it initially rates applicants, when it again rates those previously rated applicants, and again when it considers applicants at subsequent stages of the admissions process. Yale discriminates based on race among comparable applicants to whom Yale's own admissions staff gave identical ratings earlier in the admissions process. Yale's use of race at multiple steps of its admissions process results in a multiplied effect of race on an applicant's likelihood of admission. Yale's race discrimination contrasts starkly with the program upheld in Fisher II, in which the University of Texas considered race as one "subfactor" of its multi-factor assessment of applicants, and "[t]he admissions officers who ma[d]e the final decision as to whether a particular applicant will be admitted ma[d]e that decision without knowing the applicant's race." 136 S. Ct. at 2206-07.

Yale's admissions data and other information also show that the University is using race as more than just plus factors but rather as predominant criteria that in practice are determinative in many admissions decisions. Data also show that this determinative effect of race is multiplied for competitive applicants. Yale's approach is thus a far cry from the admissions process in Fisher II, where "race [was] but a 'factor of a factor of a factor' in the holistic-review calculus." Id. at 2207 (citation omitted).

Yale's oversized use of race favors some applicants because of their race and correspondingly disfavors other applicants because of their race, with most Asian American and White applicants unduly bearing the brunt of the preferences Yale grants to its racially-preferred applicants. Yale grants racial and national origin preferences in favor of African American, Hispanic, and certain other applicants and disfavors most Asian American and White applicants. Yale's use of race cannot satisfy the narrow tailoring requirement because Yale "unduly burden[s] individuals who are not members of the favored racial and ethnic groups." Grutter, 539 U.S. at 341 (citation omitted).

For example, data produced by Yale show that Asian American applicants have a much lower chance of admission than do members of Yale's preferred racial groups, even when those Asian Americans have much higher academic qualifications and comparable ratings by Yale's admissions officers. Every year from 2000 to 2017, Yale offered admission to Asian American applicants to Yale College at rates below their proportion of the applicant pool. During this same 18-year period, Yale offered admission to White applicants at rates below their proportion of the applicant pool in a majority of years. And, every year during the same 18-year period, Yale admitted applicants to Yale College from Yale's preferred racial groups at rates higher than their representation in the applicant pool. 

Additionally, Yale's data and other information show that Yale is racially balancing its admitted class, with the major racial groups remaining remarkably stable for approximately the last decade.

Yale's president, Peter Salovey, is defiant, setting up a high-stakes showdown:

The department's allegation is baseless. Given our university's commitment to complying with federal law, I am dismayed that the DOJ inexplicably rushed to conclude its investigation without conducting a fully informed analysis, which would have shown that Yale's practices absolutely comply with decades of Supreme Court precedent.

Yale College will not change its admissions processes in response to today's letter because the DOJ is seeking to impose a standard that is inconsistent with existing law. We will continue to look at the whole person when selecting whom to admit among the many thousands of highly qualified applicants. We will continue to look at what students have accomplished and hope to contribute to Yale and the world. We will continue to create a student body that is rich in a diverse range of ideas, expertise, and experiences. Such a student body greatly enhances students' academic experiences and maximizes their future success. By bringing people of different backgrounds, talents, and perspectives together, we best prepare our students for a complex and dynamic world.

Yale's admissions practices help us realize our mission to improve the world today and for future generations. At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.

The DOJ is giving Yale two weeks to think over its defiance or else face a lawsuit:

We would like to secure Yale's compliance with Title VI by voluntary means. 28 C.F.R. §§ 42.107 & 42.108; see also 42 U.S.C. § 2000d-1. To that end, Yale must agree not to use race or national origin in its upcoming 2020-2021 undergraduate admissions cycle, and, if Yale proposes to consider race or national origin in future admissions cycles, it must first submit to the Department of Justice a plan demonstrating that its proposal is narrowly tailored as required by law. Any such proposal should include an end date to Yale's use of race.

Please be advised that if Yale does not agree to this remedial measure by August 27, 2020, we may determine that "compliance cannot be secured by voluntary means." 28 C.F.R. § 42.108; see also 42 U.S.C. § 2000d-1. If we make that determination, the Department will be prepared to file a lawsuit.

Unless Yale changes its mind (unlikely, given the arrogance on display), there is going to be an epic lawsuit with huge financial stakes.  My guess is that A.G. Barr is confident that the evidence available is so strong that he expects to win.  

Stay tuned for fireworks.

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