The Trump administration's full-court press against Harvard

It's the best way to force compliance with the prohibition on race discrimination in admissions

In 2023, the Supreme Court ruled that Harvard's race-conscious admissions program violates the Constitution. Using race as a factor in admissions decisions is prohibited by the Fourteenth Amendment, the Court held.

Those of us who have been paying attention doubted that Harvard actually would stop taking race into consideration. The real questions seemed to be what mechanism[s] Harvard would use to keep discriminating and how brazen would Harvard be.

The first question wasn’t much of a puzzler. The Court seemed to open the door to the continued favoring of blacks and Hispanics, at least to some extent, when it stated that colleges can consider how an applicant's race has shaped his or her life.

The answer to the second question turned out to be: quite brazen. This became clear in the Fall of 2024 when Harvard revealed the racial composition of its incoming undergraduate class.

Of students who identified their race, 14 percent identified as African American or Black, a decrease of 4 percent from Class of 2027 data. Thirty-seven percent of students identified as Asian American, representing no change from the year prior. Sixteen percent of students identified as Hispanic or Latino, a 2 percent increase from the previous year.

The fact that Asian-American admissions numbers remained the same was galling. It seemed like a shot at both Asian-Americans, for having the nerve to sue Harvard, and the Supreme Court for having the nerve to find Harvard’s policy illegal.

As for the small decrease in black admissions, it was a fig-leaf at best. The decline left black representation in its incoming class at 14 percent. There’s no way Harvard could have reached that figure without taking race into account.

I explained why here:

Black representation among adolescents in America is around 15 percent. Black representation among high school graduates is lower than that. Black representation among high school graduates who achieve at the level that whites and Asian Americans must attain to have any hope of being admitted to Yale or Harvard is much lower.

How much lower? In this post, I demonstrated how massively Yale has had to favor blacks to get black representation to 14 percent. For example, it had to admit blacks in the fourth decile from the bottom of its rating system at a rate of 12 percent — about the same rate at which Asians in the tenth decile, the top one, are admitted. Blacks in the tenth decile were admitted at a rate of 60 percent. The admission rates for Whites and Asians in the fourth decile were just 2 percent and 2.5 percent, respectively.

Harvard could not have a class with the same black representation as Yale without engaging in the same magnitude of illegal race-based discrimination.

Clearly, Harvard was still discriminating against Asian-American and white applicants. But what, in the Fall of 2024, could be done about it?

The only obvious remedy was another private lawsuit. But it would take years to identify plaintiffs, conduct discovery, absorb defeat (probably) at the hands of liberal judges, and finally get relief (probably) from the Supreme Court.

But after the 2024 election, a more promising option presented itself — action by the Trump administration.

And act, the Trump administration did. It froze $2.2 billion in federal funding and said it will cut $450 million in grants. It also threatened to revoke the institution’s tax-exempt status and to block Harvard from enrolling international students.

These actions aren’t just intended to force Harvard to end racial preferences in admissions. The administration is concerned about a range of policies and practices at Harvard, including failure to protect Jewish students from anti-Semitism.

However, fair admissions is the focus of a new administration initiative. The Department of Justice has launched an investigation into whether Harvard’s admissions policies comply with the Supreme Court’s 2023 decision. The legal hook for the investigation is the False Claims Act, which holds entities accountable for fraud against the government.

According to the New York Times, the DOJ’s letter to Harvard did not “detail exactly how Harvard may have defrauded the government.” However, it’s my understanding that to receive federal funds, colleges and universities must certify that they don’t discriminate on the basis of race.

If the certification is false, I believe it would constitute a violation of the False Claims Act. And if Harvard has, in fact, violated that Act, it would have to return federal money and pay a fine of hundreds of millions of dollars.

As part of its investigation, the DOJ has asked Harvard to answer a series of questions and to turn over documents including text messages, emails, and other communication from Harvard officials that discussed Trump’s executive orders on DEI. A school official will also have to testify under oath about Harvard’s admissions policies and how they have changed since the 2023 Supreme Court ruling.

A Harvard spokesperson insists that the institution is committed to following the law, including civil rights laws that pertain to admissions:

The institution “immediately” implemented changes following the Supreme Court decision, the spokesperson said.

Those have included: admission readers not having access to an applicant’s self-reported race or ethnicity until after the admissions process, including for people on the waitlist, and updating the training materials for readers and alumni volunteers who conduct applicant interviews to not ask or consider an applicant’s race.

Applicant essay questions were also moved away from identity-based questions to questions that will focus more on how the student will contribute to the Harvard community.

(Emphasis added)

Here, I think, is the answer to the question of how Harvard will continue to favor blacks, notwithstanding the Supreme Court’s decision. As many suspected, it will do so through applicant essays. Black applicants can highlight their race in response to questions about how they will contribute to Harvard. For example, they can say they’ll contribute to Harvard by adding diverse perspectives based on the way race has shaped their life.

The Supreme Court decision permits applicants to write this sort of essay (how could the Court have ruled otherwise?) and permits Harvard to take such writings into account. But I doubt the Court meant that essay answers like this can dominate admissions decisions to the point that blacks are vastly over-represented in an entering class in relation to their objective credentials — e.g. grades and test scores.

The Supreme Court was always going to have to decide this question. Thanks to the administration’s full court press, it may not take a drawn out lawsuit by rejected applicants to get the question before the Court. The administration can get it there quicker and, unlike private plaintiffs, can inflict pain on Harvard while the litigation proceeds.

Egged on by other colleges and the mainstream media, Harvard has fought back with a lawsuit that challenges the cutoff of federal funds. The suit has merit because the Trump administration failed to follow required procedures.

But a victory on procedural grounds isn’t likely to count for much because (1) the administration can correct its procedural flaws and (2) the full-court press, which also now includes an EEOC investigation into Harvard’s treatment of whites, Asians, males, and non-LGBTQ employees, poses serious challenges on multiple fronts.

Harvard would be well-advised to reach a settlement with the administration. But any settlement should include concrete assurances that Harvard will stop finding ways to discriminate on the basis of race in admissions, and oversight mechanisms to make sure Harvard is living up to these assurances.

This might be too much for Harvard to swallow. But if the administration is interested in winning, not merely claiming victory, it must insist.