Wikimedia Commons

A week after the United States Department of Justice dropped its lawsuit against the University, Yale affiliates and other legal scholars weighed in on the decision’s implications.

On Feb. 3, the DOJ announced that it would drop its lawsuit alleging that Yale discriminates against white and Asian American applicants in its college admissions process. The suit was originally filed by the Trump DOJ in October 2020, after a two-year investigation concluded that Yale violated Title VI of the 1964 Civil Rights Act — which prohibits any institution receiving federal funding from discriminating on the basis of race, color or national origin.

A spokesperson for the new Biden DOJ wrote in a statement to the News last week that the lawsuit was dropped “in light of all available facts, circumstances, and legal developments,” including Harvard University’s victory in the First Circuit Court in a similar lawsuit over the use of race in its admissions. The DOJ will continue to investigate Yale’s Title VI compliance, but has withdrawn the notice of noncompliance issued by the Trump DOJ.

Legal scholars interviewed by the News agree that dropping the lawsuit is a move by the Biden administration to overturn the “extremism” of the Trump DOJ, and that it indicates the new DOJ’s support for years of legal precedent that dates back to 1978. Although the University’s troubles with admissions lawsuits may not yet be over, the scholars said they feel confident that those lawsuits –– like the one recently dropped –– lack a solid legal foundation and would not make it far in the courts.

“I am pleased that the department has decided to drop its lawsuit and has withdrawn its notices of violation of Title VI and of noncompliance,” University President Peter Salovey wrote in a community-wide email following last Wednesday’s announcement. “Yale welcomes the chance to share information with the department, confident that our admissions process complies fully with decades of Supreme Court decisions.”

Salovey has defended Yale’s admissions policies throughout the Trump DOJ’s investigation and lawsuit. In multiple community-wide emails during the fall, Salovey called the DOJ’s claims “baseless,” and said that Yale looked forward to defending its policies in court.

University spokesperson Karen Peart told the News last week that the University is “gratified” that the suit was dropped, and also appreciates the withdrawal of the noncompliance notice, as it allows Yale to resume an exchange of information with the DOJ that was unexpectedly cut off in the fall.

“I think [dropping the suit] is a fantastic move that should be celebrated,” Duncan Hosie LAW ’21, former co-president of Yale Law Democrats, said. “Joe Biden has made it clear that he understands what structural racism is in this country and is committed to addressing it, and dropping the lawsuit is an important first step to achieve that goal.”

‘Far beyond rule of law norms’: A politicized Department of Justice

According to Michael A. Olivas, retired law professor from the University of Houston, most administrations differ from their predecessors, so it is typical for the DOJ to change from president to president –– in subtle ways or, as is the case now, in “major ways.”

“Because President Trump’s Department of Justice was politicized and moved far beyond rule of law norms, President Biden’s Department of Justice is going to have to drop many lawsuits,” Hosie said. “But I think that speaks more to the extremism of Trump’s Department of Justice more than anything else.”

Hosie said that the DOJ now has a lot of work to do in order to “recenter the department.” He pointed to two other cases that the Biden DOJ recently dropped, left over from the Trump administration: a lawsuit regarding California’s net neutrality law that included important protections for internet users and a lawsuit against former Melania Trump aide Stephanie Winston Wolkoff, who wrote a book critical of the Trump administration.

Hosie added that he expects positive new developments from the Biden administration, beyond simply dropping “repugnant” lawsuits such as the one against Yale. Namely, he said he feels confident the new administration will also “vigorously enforce civil rights statutes” like Title VI of the 1964 Civil Rights Act.

For his part, Olivas said he expects the Biden DOJ will repudiate Trump’s initiatives in “virtually every civil rights dimension.” He noted that many of these initiatives, such as those relating to the Census or Deferred Action for Childhood Arrivals, have already been rejected by the Supreme Court.

“Virtually all legal cases have political dimensions, the Trump cases more than most,” Olivas wrote to the News. “Trump’s efforts lived by the sword, and died the same way.”

The fight against affirmative action continues

But Yale’s legal worries may not go away so easily.

In October, Students For Fair Admissions — an anti-affirmative action group that is the plaintiff in the ongoing lawsuit against Harvard — filed a motion to intervene in the DOJ’s lawsuit against Yale, so that SFFA could continue with the case even if the DOJ were to drop it. In January, the motion was denied. SFFA President Edward Blum told the News last week that SFFA intends to file another lawsuit against Yale now that the DOJ lawsuit has been dropped.

“It is disappointing that the Department of Justice withdrew from this important lawsuit which had exposed Yale’s illegal use of quotas to achieve racial and ethnic proportionality,” Blum wrote in a press release statement to the News. “Students for Fair Admissions intends to file a new lawsuit against Yale in the coming days. Discriminatory admissions policies like Yale’s must be challenged in federal court.”

Even if SFFA does file another lawsuit against the University, Hosie pointed out that they will not have the “full force” of the United States government behind them — unlike under the Trump DOJ.

In fact, Hosie said it is likely that the Department of Justice under Biden would oppose SFFA.

“I think, for example, if Yale were sued again by the conservative groups that oppose affirmative action, I would expect the Department of Justice to submit an amicus brief in support of Yale, rather than directly challenging Yale,” Hosie told the News. “I think that is enormously significant that we will have a Department of Justice committed to civil rights [and] committed to addressing structural racism, rather than on the side of people who are trying to entrench the current status quo and caste structure.”

Hosie also added that he believes that the Department of Justice will also soon drop its support for SFFA’s similar lawsuit against Harvard, alleging racial discrimination in Harvard’s admissions practices. In November, a federal appeals court ruled that Harvard’s admissions practices did not violate federal civil rights law. SFFA is expected to file a writ of certiorari to bring the Harvard lawsuit to the Supreme Court –– but Olivas said that the Supreme Court would likely not hear the case because Harvard has been referenced by the court as a “model” for affirmative action in the 1978 case Regents of the University of California v. Bakke.

Olivas further said that the Supreme Court has ruled “definitively” on the modest use of affirmative action, upholding the legality of Yale’s admissions practices.

“Blum has mostly exhausted his various end-runs, and will have to accept his losses at some point,” Olivas wrote in an email to the News.

Looking back: The history of affirmative action

The general consensus among the legal community, according to Hosie and Olivas, is that the lawsuit against Yale lacked a strong legal foundation. The University’s admissions practices, on the other hand, remain supported by years of Supreme Court decisions upholding affirmative action.

“I think the goal of this lawsuit was to overturn long-standing precedent, not to honor precedent,” Hosie told the News.

Affirmative action was first upheld by the Supreme Court in Regents of the University of California v. Bakke. The court ruled that while it is unconstitutional for universities to use racial quotas in their admissions processes, schools may use affirmative action to accept more minority applicants. This landmark decision allowed the use of race as one of several factors in college admission policies.

The Supreme Court upheld affirmative action 25 years later in 2003 in Grutter v. Bollinger, ruling that student admissions processes that favor “underrepresented minority students” do not violate the 14th Amendment’s equal protection clause — as long as they take into account other factors that are evaluated on an individual basis for every applicant.

Hosie said the “most notable” Supreme Court case about affirmative action came in 2016 with Fisher v. University of Texas, which again determined that the consideration of race in the admissions process does not violate the equal protection clause. The Supreme Court ruled that using race as a factor in the holistic review of applicants serves the “compelling state interest” of educational diversity.

“By dropping the lawsuit, I see the Biden administration recognizing its constitutional responsibilities,” Hosie told the News. “And I use constitutional responsibilities in two senses: the responsibility to honor precedent, and also the responsibility to honor the equality norms that are a part of the Constitution.”

Biden has nominated Judge Merrick Garland to lead the DOJ as the new attorney general. His confirmation hearing will be held on Feb. 22.

Julia Brown | julia.k.brown@yale.edu

Amelia Davidson | amelia.davidson@yale.edu