Where’s justice at Yale?

OPINION:

The race preference regimes at Harvard and the University of North Carolina have received a supreme slap down. Chief Justice John Roberts, writing for a 6-2 majority, explained that Harvard’s affirmative action regime had satisfied none of the requirements necessary pursuant to the highest level of judicial scrutiny required when using racial distinctions — what Justice Clarence Thomas calls “genuine strict scrutiny.”

So, what to do about all the other schools that have been following the “Harvard model,” like Yale?

Way back in the before times — that is, before COVID-19 and the period of racial unrest following the George Floyd murder — the Department of Justice notified Yale University that it was commencing a Title VI investigation into alleged discrimination in undergraduate admissions.

You are excused for having forgotten about it. Again, this was back in 2018, after all.

Led by career staff, the Justice Department conducted an investigation for more than two years.

And, to no one’s surprise, the department sent a letter notifying Yale in pertinent part that “the United States Department of Justice has determined that Yale University violated and is continuing to violate, Title VI of the Civil Rights Act of 1964 … by discriminating on the basis of race … in its undergraduate admissions” and that “Yale’s discrimination is long-standing and ongoing.”

Earlier this year, I testified at a hearing of the U.S. Commission on Civil Rights alongside former Assistant Attorney General Eric Dreiband, who ran the Justice Department’s Civil Rights Division during and after the Yale investigation. He had the following to say at the commission’s hearing regarding Yale’s bold response to the department’s demand that they stop racially discriminating: “Yale responded to us in writing by saying one, they don’t discriminate on the basis of race, which is blatantly untrue, and two, they were going to continue using race, and they insisted they would continue using it eternally. There was no indication in anything that I saw that any of the colleges or universities that we investigated ever intended to stop using race and engaging in race discrimination.”

So, the department sued Yale. The complaint alleged racially discriminatory practices that look like they could have been cribbed from the Supreme Court’s Harvard decision, such as the pervasive use of race at nearly every stage of a multi-step admissions process.

The complaint — signed by political and career leadership — sought declaratory and injunctive relief and damages for injured applicants. As former President Barack Obama has warned us, however, elections have consequences.

When President Biden’s Justice Department took the reins of power, one of its first acts was to dismiss the government’s complaint against Yale.

Shortly thereafter, private plaintiffs Students for Fair Admissions — of Harvard case fame — sued Yale and made nearly identical allegations against Yale as contained in the Justice Dept. complaint. On May 13, 2021, the trial court in the case issued an order stating, in relevant part: “All proceedings in this case are stayed pending the Supreme Court’s resolution of the petition for certiorari in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. … If the Supreme Court grants review, this case will remain stayed until after the Supreme Court issues its decision in that case, and the Defendant shall file a response to Plaintiff’s complaint.”

So, what now? Students for Fair Admissions have every incentive to move speedily ahead. Not least of those incentives is that Title VI authorizes an award of attorney’s fees.

The Justice Department is not authorized to recover fees, but its incentive (and obligation) to proceed against Yale is even greater.

The Justice Department has a statutory duty to enforce Title VI, including by seeking declaratory, injunctive and monetary relief for victims of Title VI violations. The department conducted a multi-year investigation of Yale, determined that Yale violated the Title VI rights of thousands of applicants, and sued Yale. Yet the victims of Yale’s illegal discrimination of every racial hue remain uncompensated.

Attorney General Merrick Garland issued a statement after the Supreme Court’s rebuke of Harvard, indicating that the department “remains committed to promoting student diversity in higher education” and will “provide resources to colleges and universities” on continuing to achieve diversity in its admissions practices. How will this square with the department’s institutional conclusion that Yale, and other colleges, have and continue to engage in systemically discriminatory admissions practices essentially identical to Harvard’s?

Yale has more money than God, and the Supreme Court explained in its Sandoval decision that Title VI authorizes money damages for victims.

Where’s justice at Yale? Justice delayed is justice denied.

• Devon Westhill is the president and general counsel for the Center for Equal Opportunity.