The Civil Rights Division of the Department of Justice notified Yale today that it is violating Title VI of the 1964 Civil Rights Act by discriminating against Asian and white Americans in undergraduate admissions.

The Department of Justice found Yale discriminates based on race and national origin in its undergraduate admissions process, and that race is the determinative factor in hundreds of admissions decisions each year. For the great majority of applicants, Asian Americans and whites have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials. Yale rejects scores of Asian American and white applicants each year based on their race, whom it otherwise would admit.

Although the Supreme Court has held that colleges receiving federal funds may consider applicants’ race in certain limited circumstances as one of a number of factors, the Department of Justice found Yale’s use of race is anything but limited. Yale uses race at multiple steps of its admissions process resulting in a multiplied effect of race on an applicant’s likelihood of admission, and Yale racially balances its classes.

Assistant Attorney General Eric Dreiband wrote, “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness, and division. It is past time for American institutions to recognize that all people should be treated with decency and respect and without unlawful regard to the color of their skin.” In the notice letter sent to Yale, the DOJ goes into more detail about its objections to the current admissions criteria:

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.”

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.”

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.

The upshot of the letter is that Yale must stop using race as a factor in admissions for the upcoming school year:

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.

The threat becomes explicit in the next paragraph which says the DOJ will sue if Yale doesn’t comply on its own. The DOJ press release says the finding is the result of a 2-year investigation but Yale called the government’s action “hasty.”

In a statement, Yale said it “categorically denies this allegation,” has cooperated fully with the investigation and has been continually turning over “a substantial amount of information and data.”

“Given our commitment to complying with federal law, we are dismayed that the DOJ has made its determination before allowing Yale to provide all the information the Department has requested thus far,” the university said in a statement. “Had the Department fully received and fairly weighed this information, it would have concluded that Yale’s practices absolutely comply with decades of Supreme Court precedent.”

The university said it considers a multitude of factors and looks at “the whole person when selecting whom to admit among the many thousands of highly qualified applicants.”

“We are proud of Yale’s admissions practices, and we will not change them on the basis of such a meritless, hasty accusation,” the statement said.

We’ve been through this once with the lawsuit against Harvard. A judge eventually ruled in Harvard’s favor in that case though her reasonsing struck me as somewhat thin. Specifically, the judge admits that Harvard made no attempt to deny that Asian students received lower “personal” scores that offset their higher academic scores but then concluded Harvard wasn’t discriminating because Harvard’s witnesses said they weren’t:

Harvard’s witnesses credibly testified that they did not use race in assigning personal ratings (or any of the profile ratings) and did not observe any improper discrimination in the admissions process. The uniformity of these observations is persuasive given the collective manner in which admissions decisions are made, with all members of the Admissions Committee participating in all decisions and having real-time visibility into the process for each applicant. Any causal relationship between Asian American identity and the personal rating must, therefore, have been sufficiently subtle to go unnoticed by numerous considerate, diligent, and intelligent admissions officers who were immersed in the admissions process.

In short, we have to take these fine people at their word. I guess we’ll see if Yale fares any better. Then again, this is all probably dependent on who wins the 2020 election. I suspect that if Joe Biden is elected priorites in the DOJ’s civil rights division will change rather quickly.