The United States Department of Justice confirmed Monday afternoon that it is continuing to investigate Harvard’s admissions programs for discrimination, in response to a Freedom of Information Act request submitted by The Harvard Crimson on Oct. 25.
The response comes nearly one year after Civil Rights Division Chief Kilian B. Kagle last confirmed the investigation's ongoing status, and less than one month after the Justice Department sued Yale University for discriminating in its admissions process.
In his response, Kagle withheld requested documents relating to the investigation on the grounds that the records were part of an “ongoing law enforcement proceeding” which their disclosure might “interfere with.”
Stetson University law professor Peter F. Lake ’81 said he believes the Justice Department’s investigation into Harvard admissions is being made in tandem with Student for Fair Admissions’s ongoing lawsuit against the University, which SFFA has appealed in the First Circuit Court.
“I felt all along that the Harvard case is the ‘test case,’ but it's actually several legal issues happening simultaneously. You've got the administrative and court activity happening at the same time,” Lake said. “I think both the Department of Justice and plaintiffs are building a case against Harvard admissions.”
William R. Yeomans, a Columbia Law School lecturer who worked in the DOJ's Civil Rights Division for 26 years, said he also thinks the Justice Department’s investigation is part of a conjunctive effort with SFFA. He called SFFA’s ongoing appeal the “principal vehicle” to challenge Harvard’s race-conscious admissions process.
“This one, obviously, is being driven by outside demands to some extent,” Yeomans said. “It would just seem very unlikely that they would go ahead and take independent action while this other lawsuit is pending in the Court of Appeals.”
Yeomans added that it would still be possible for the Justice Department to file a lawsuit during a lame-duck period if President Donald J. Trump loses his re-election bid. The nation is currently waiting for several key swing states to finish counting ballots in a tight presidential race between Trump and former Vice President Joseph R. Biden, Jr.
“There may be some inclination to try to lock in a lawsuit for before Trump leaves office and sort of tie the hands of the Biden administration. I hope that's not the case. I think that would be totally inappropriate,” Yeomans said. “It's difficult for the Department of Justice to change the litigating position once a case is in trial.”
Launched more than three years ago, the Justice Department’s investigation does not have a set timeline. Lake said the indefinite nature of the investigation is typical.
“It doesn't really surprise me that this is going on for a while. Not everything wraps up quickly with administrative investigation like this. I've seen [Department of Education] investigations that went on for years,” Lake said. “It's not out of the ordinary.”
Lake also said he believes the prolonged nature of the investigation may mean the Civil Rights Division is building a strong case against Harvard.
“My sense is the Department of Justice thinks there is something there that they're looking for, and the fact that it hasn't ramped up quickly would tend to signal that they're still digging,” Lake said.
—Staff writer Benjamin L. Fu can be reached at firstname.lastname@example.org. Follow him on Twitter @BenFu_2.