Justice Department investigating Harvard’s affirmative-action policies following complaints by Asian and Indian-American groups

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Harvard University (Photo: Harvard.edu)

WASHINGTON – The Justice Department is investigating Harvard University’s use of race in admissions, and is warning the school that it is out of compliance with federal civil rights law because it has not provided documents the department requested.

In two letters sent Friday, Justice Department officials said Harvard had not produced “a single document” that had been requested, despite a Nov. 2 deadline, and that the university’s attorney had tried to “side-step Harvard’s Title VI obligations.” Because Harvard receives that federal funding under the Civil Rights Act of 1964, department officials argue, the university must comply with its request. Title VI, part of the Civil Rights Act, prohibits discrimination on the basis of race, color and national origin in programs that receive federal funding.

The confirmation of the investigation, first reported by the Wall Street Journal, followed months of signaling from the department that it would challenge affirmative action policies.

The highly charged question – battled in multiple U.S. Supreme Court cases – is whether colleges can consider an applicant’s race as a factor in admissions.

The Supreme Court has ruled repeatedly on affirmative action cases in higher education, most recently in June 2016, when it upheld a University of Texas policy that enables race to be a factor in admission decisions. That 4 to 3 ruling was widely interpreted as a green light for the use of race conscious policies in what schools such as Harvard call “holistic” admissions. But critics said the ruling was narrow enough that other lawsuits could be filedto challenge affirmative action.

Seth Waxman, the attorney representing Harvard, did not immediately respond to a request for comment Tuesday morning.

“The Department of Justice takes seriously any potential violation of an individual’s civil and constitutional rights, but we will not comment at this time,” spokesman Devin O’Malley said in an email.

A pending lawsuit brought by an advocacy group, Students for Fair Admissions, asked a federal judge to prohibit the use of race in future undergraduate admissions decisions by Harvard, claiming the school violates federal civil-rights law and intentionally discriminates against Asian-American students.

Edward Blum, president of Students for Fair Admissions, sent a written statement Tuesday saying his group is gratified that the department had launched an investigation. “For decades, Harvard has unfairly and unlawfully restricted the number of Asians it admits.

“Harvard’s Asian quotas, and the overall racial balancing that follows, have been ignored by our federal agencies for too long. This investigation is a welcome development.”

In a letter sent Friday, Matthew Donnelly of the Justice Department’s Civil Rights Division, said Waxman had erroneously challenged the agency’s right to investigate Harvard under Title VI and had proposed a plan to give restricted access to limited documents.

In a separate letter, John Gore, acting assistant attorney general in theCivil Rights Division, said that more than two months had passed without Harvard supplying a single document, and that the university was out of compliance with its obligations under Title VI.

Anurima Bhargava, who was chief of the educational opportunity section in the Justice Department’s civil rights division under the Obama administration, said Tuesday the department’s actions appeared unusual because federal education officials had already considered the issue in 2015 and decided not to pursue it.

“It’s peculiar that you have a situation in which the Department of Education has dismissed a complaint and the Justice Department then decides to investigate under Title VI,” Bhargava said. She said it was also unusual for the Justice Department to conduct a “parallel investigation” when a federal suit is pending on a similar set of allegations. Bhargava recently held fellowships at the Harvard Kennedy School, but she said she is not currently affiliated with the school.

A spokeswoman for Harvard University said the school would have a response later Tuesday.

The Harvard admissions process routinely draws public attention because the Ivy League university is one of the most selective in the world. In March, 2,056 students were offered admission to the fall 2017 freshman class, out of 39,506 applicants. That translates to an admission rate of little more than 5 percent.

Of those admitted, 22.2 percent were Asian-American, the university said, while 14.6 percent were African-American, 11.6 percent Latino and 1.9 percent Native American.