Document Fight Slows Inquiry of Affirmative Action at Harvard

The dispute centers on Subject VI of the Civil Privileges Act, which bars racial discrimination by organizations that receive federal grants – like Harvard – and the culture-war fight over whether efforts to make sure diversity by giving an edge to members of generally disadvantaged groups, like dark and Latino students, amount to discrimination against white or Asian students with in any other case comparable or higher qualifications.

Anna Cowenhoven, a spokeswoman for Harvard, said the university was trying to meet up its obligation to supply the federal government with access to records in a way that would also meet its obligation to safeguard the privacy of its job seekers and students.

“As we’ve repeatedly made clear to the Section of Justice, the university will surely comply with its obligations under Subject VI,” she said. “Along the way, we’ve an obligation to safeguard the confidentiality of scholar and applicant data files and other highly delicate records, and we’ve been wanting to engage the Section of Justice in the best means of doing so.”

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Edward Blum, the president of Learners for Good Admissions, which he formed to recruit plaintiffs to challenge affirmative action policies and hook up them with donors who want to finance such litigation, said on a written statement about Tuesday that his group was “gratified” that the Justice Section was investigating Harvard’s admissions policies, saying its “racial balancing” attempts amounted to placing a quota about Asian admissions.

The Wall Street Journal first reported on Mr. Gore’s letter, along with another directed that same working day by Matthew J. Donnelly, a Civil Privileges Division lawyer working on the project. THE BRAND NEW York Times separately received those letters, along with more than a few directed by Mr. Waxman this fall.

The letters show that Justice Department officials are usually seeking the same records Harvard has already turned over to legal professionals for Students for Fair Admissions, which signed a confidentiality agreement. Those records had privately identifying info blacked out, nevertheless, and the department wants to discover them without redactions.

In response, Mr. Waxman has raised questions about the Civil Privileges Division’s authority to pursue the investigation and proposed various limits on how government officials may access the data, citing the privacy of applicants and concerns that the materials might become general public. Mr. Donnelly subsequently has accused Mr. Waxman of seeking a “technique of delay.”

The Justice Section is weighing whether to file a friend-of-the-court brief in the Learners for Good Admissions lawsuit or whether to file its lawsuit. If so, it could record a parallel complaint, suggesting that Harvard’s policies amount to intentional discrimination, or it could file a more aggressive complaint, arguing that Harvard’s policies have a “disparate impression” on Asian applicants.

Only the government, not private litigants, can file disparate impact promises. Such a complaint could be much easier to prove since it would not be necessary to display that Harvard possessed a discriminatory goal, only that its policies had a discriminatory impact. But that would be an incredible move, partly because conservatives generally oppose the use of disparate impact requirements in civil rights circumstances.

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