Editor's Note: This article was originally published under the name "John David," the former pseudonym of NAS Communications & Research Associate David Acevedo. To learn more about why David no longer writes under this name, click here.
The Claim
According to a letter made public yesterday, the Department of Justice (DOJ) “has determined that Yale University violated, and is continuing to violate, Title VI of the Civil Rights Act of 1964 … by discriminating on the basis of race and national origin (hereinafter “race”) in its undergraduate admissions with respect to domestic non-transfer applicants to Yale College.” Furthermore, investigators found that “Yale’s discrimination is long-standing and ongoing.”
The DOJ’s findings come after over two years of investigation, resulting from a probe launched in April, 2018. Since then, “the Department [of Justice] has reviewed extensive documentation related to Yale’s undergraduate admissions process, interviewed admissions officials, and analyzed voluminous admissions data.”
The primary finding of the investigation is that “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.”
The Background
The text of Title VI states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Yale receives DOJ funding and is therefore subject to Title VI regulations.
The DOJ’s report does grant that Yale is allowed to use race as a factor in admissions. However, as per the Equal Protection Clause of the Constitution and several Supreme Court rulings, it “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.” Specifically, this “requires Yale to ‘prove that the means chosen by’ the school to achieve its stated interest in diversity ‘are narrowly tailored to that goal.’”
There are many requirements necessary for an institution to prove its use is “narrowly tailored.” Most pertinent to this probe is the stipulation that “Race cannot be ‘decisive in practice.’ … race cannot be ‘the defining feature’ of the application or ‘the predominant factor’ that decides an applicant’s admission.” Additionally, “an admissions program cannot ‘unduly burden individuals who are not members of the favored racial and ethnic groups.’” and “a university’s ‘race-conscious admissions policies must be limited in time.’”
The Evidence
The DOJ goes on to list four main reasons why Yale is in violation of Title VI regulations:
1. Yale’s diversity goals are not sufficiently measurable. The DOJ report states 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.” [emphasis added]
2. Yale’s use of race as a factor in admissions is not “narrowly tailored.” The investigation found that “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.” … “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.” The DOJ also lists the following as evidence of racial discrimination: “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.” [emphasis added]
3. Yale racially balances its undergraduate classes. Specifically, the DOJ found compelling evidence that “the major racial groups [remained] remarkably stable for approximately the last decade,” amounting to “outright racial balancing”.”
4. Yale cannot satisfy its “heavy burden” of showing that racial discrimination is necessary to achieve the desired “educational benefits of diversity” and has placed no time limit on its use of race in admissions. The report specifies “Yale’s race discrimination dates back more than four decades, to at least the 1970s, and Yale’s race discrimination contains no time limits. Instead, it appears that Yale intends to continue discriminating on the basis of race, apparently in perpetuity. Indeed, Yale admits that it intends to continue its race-based admissions process for the “foreseeable future.” … Yale’s consideration of race-neutral alternatives, however, appears conclusory, includes no detailed studies by Yale about Yale and its admissions process, and often relies on anecdotal accounts of what may be occurring at other universities rather than how alternatives would particularly affect Yale’s diversity.” [emphasis added]
These conclusions are based on decades’ worth of Yale College undergraduate admissions data and form a powerful case against the institution’s present and historic admissions practices.
The Verdict
In summary, the Department of Justice investigation found that Yale does use race as a decisive, defining, and predominant factor in undergraduate admissions (a factor used with opacity); that it does place an undue burden on “racially-disfavored applicants”; and that it has not placed a time limit on its racial preferences. The Department of Justice has therefore concluded that Yale is in gross violation of Title VI, mandating that
“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.”
Additionally, the DOJ states 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.” … If we make that determination, the Department will be prepared to file a lawsuit to enforce Yale’s Title VI obligations.”
The Response
In an email to students, Yale University President Peter Salovey dismissed the DOJ’s conclusions as “baseless,” claiming that “Yale has been fully cooperating with the DOJ investigation. … the DOJ concluded its investigation before reviewing and receiving all the information it has requested.”
He continues: “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.”
Salovey ends his email with an emphatic rejection of the DOJ’s directives:
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 create a student body that is rich in a diverse range of ideas, expertise, and experiences. …
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.
Given these statements, it appears that a federal lawsuit is in Yale’s not-so-distant future. The National Association of Scholars will continue to cover this story as it unfolds, including the mandated changes Yale College does or does not make before the Department of Justice’s August 27 deadline.
John David is Communications & Administrative Associate at the National Association of Scholars.
Image: Nick Allen, Public Domain
