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The Justice Department Is Threatening To Sue Harvard To Get Its Admissions Records

The Trump administration is drilling down on affirmative action.

Last updated on November 21, 2017, at 5:36 p.m. ET

Posted on November 21, 2017, at 12:09 p.m. ET

Glen Cooper / Getty Images

The Department of Justice is demanding that Harvard University furnish a trove of records about student admissions or risk a lawsuit in an escalating conflict with the Ivy League school over its affirmative action policies.

On Nov. 17, the department's top civil rights lawyer sent a letter, obtained by BuzzFeed News, accusing the school of slow-walking the documents while creating "delays and challenges to the Department's authority."

The letter threatens to sue the university unless it meets a Dec. 1 deadline for handing over student records, as required by the Title VI of the Civil Rights Act of 1964, which bans racial discrimination by recipients of federal money — including private schools that receive federal grants.

"Please be advised that if Harvard does not comply with the document request in full by that deadline, we may file a lawsuit to enforce Harvard's Title VI access obligation," wrote Acting Assistant Attorney General John Gore.

The letter was first reported Tuesday by the Wall Street Journal.

Affirmative action policies, which offer a leg up for black and Latino students at many public and private colleges, are a flashpoint for conservatives, who have long said they unfairly disadvantage whites. In recent years, some anti-affirmative action groups have shifted their focus to allege discrimination against Asian American students.

Devin O'Malley, a spokesperson for the Justice Department's Civil Rights Division, told BuzzFeed News on Tuesday, “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.”

"As we have repeatedly made clear to the Department of Justice, the University will certainly comply with its obligations under Title VI," a Harvard spokesperson said in a statement later Tuesday afternoon. The spokesperson said the university had an "obligation to protect the confidentiality of student and applicant files and other highly sensitive records, and we have been seeking to engage the Department of Justice in the best means of doing so.”

Harvard originally turned over the documents, according to a second DOJ letter, as part of a lawsuit by the anti-affirmative action group Students for Fair Admissions, which alleged that the school discriminates against Asian Americans. Harvard’s affirmative action policies, Students for Fair Admissions argues, unfairly hurt Asian students by imposing unspoken quotas on their admission, effectively requiring them to meet higher standards than white, black, or Latino students.

"The Department is left with no choice but to conclude that Harvard is out of compliance with its Title VI obligations."

A judge ordered Harvard last year to hand over six years’ worth of sensitive admissions information in the Students for Fair Admissions lawsuit, including applicants’ race, grades, and test scores.

The second letter alleges that Harvard is challenging the government’s demands for the same admissions data. The university “has not yet produced a single document,” the letter said.

In several letters from Harvard's lawyers to the DOJ, obtained by BuzzFeed News, the university called the government's decision to investigate the years-old complaint by Students for Fair Admissions "irregular."

"It is exceptionally unusual for the Department to resurrect" the complaint, the lawyers alleged.

The university also asked that the government explain how it would "safeguard the confidentiality of the extremely sensitive information that it has sought." The files include "deeply private information from high school students," Harvard's lawyers wrote.

Title VI “does not allow entities under investigation to dictate what information qualifies as relevant to the investigation,” the DOJ letter said, adding that given the university's pushback, "the Department is left with no choice but to conclude that Harvard is out of compliance with its Title VI obligations."

Edward Blum, the lawyer behind the Students for Fair Admissions suit, also steered an anti-affirmative action lawsuit, Fisher v. Texas, that alleged admissions discrimination against a white student, Abigail Fisher. The group has also sued the University of North Carolina over similar allegations relating to Asian students.

“Harvard's Asian quotas, and the overall racial balancing that follows, have been ignored by our federal agencies for too long,” Blum said in a statement to BuzzFeed News. “This investigation is a welcome development.”

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.