Trump Sued Over Erasing History at Parks & Harvard Sued Again

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16:49Alan Spears:In the latest legal clash between the Trump administration and Harvard, the administration is suing the Ivy League institution for allegedly failing to hand over documents related to investigations into racial discrimination in admissions. Harvard says it's complied with civil rights law under a 2023 Supreme Court decision that effectively barred universities from using race as a factor in admissions and that it's produced more than 2 ,300 pages of admissions-related documents. But the administration wants more at the applicant level. The Trump administration has aggressively targeted elite universities by withholding federal grants over alleged anti-Semitism as well as racial and ideological diversity.

17:39Alan Spears:Though other Ivy League schools like Columbia and Brown have reached deals with the administration, Harvard has publicly fought back by filing its own suits against the government. Joining me is Audrey Anderson, head of the higher education practice at Bass, Berry and Sims. So, Audrey, why is the Trump administration suing Harvard this time?

18:02Audrey Anderson:The Trump administration is suing Harvard in order to get access to data that Harvard has about its student admissions program. In April, the Trump administration started a compliance review of Harvard's student admissions program in a couple of its schools. It's undergraduate school, it's medical school, and it's law school. And among the data that it was asking for was individual student level admissions data. And according to the lawsuit that the government filed last week against Harvard, Harvard has not provided that data to the government. So the government now has sued in federal court in order to force Harvard to provide it with that individual student-level admissions data.

18:56Alan Spears:Harvard's produced more than 2 ,300 pages of admission-related documents. But the government is seeking a searchable electronic spreadsheet with individual-level data that identifies applicants' race and ethnicity, economic indicators, undergraduate class rank and GPA, MCAT scores, internal ratings, and holistic review factors and ratings. This is with reference to the medical school. Are they entitled to get a searchable electronic spreadsheet?

19:31Audrey Anderson:That's a really good question, June, and that's what they're going to be litigating over. The regulations say that the government can require recipients of federal monies, like Harvard, to provide reports. And then it also says that they can ask for a review of the recipient's records. So if Harvard does not already have a searchable electronic spreadsheet with all of those fields, I think they may have a good argument that they do not have to create it for the government, that that's not the kind of a report that the regulations require people to put together for the government. I think that's one of the arguments that Harvard may make in this lawsuit.

20:30Alan Spears:I mean, this is all about they're examining whether there's discrimination against white students, right? That's correct. So go back to the Supreme Court decision and explain what Harvard is allowed to consider. They're not allowed to consider race per se, but there are other things that they can consider.

20:49Audrey Anderson:Right. Harvard can consider anything other than race under the Students for Fair Admissions decision. The issue is that the government believes two things. The government believes, first of all, that Harvard is using some race-neutral things like socioeconomic status, like maybe geographic factors as what we call proxies for race. That what Harvard has done is said, you know what, if we admit a bunch of low-income people, that will get us the racial balance that we want. If Harvard's doing that, that's illegal. However, if Harvard is saying, you know what, it's good for our class if we have people who are from all over the United States.

21:48Audrey Anderson:And it's good for our class if we have some people who are from the city and some people who are from suburbs and some people who are from rural areas. That's not illegal. Even if that ends up getting them the racial balance that they want, if they do it because they want a balance of people from different areas, that's not illegal. The government, though, wants this data because they want to be able to prove that Harvard is using these race-neutral factors for a racial purpose.

22:24Alan Spears:So is the government entitled to, for example, essays that the students write?

22:30Audrey Anderson:I think that that's another good question. They're entitled to reasonable data. And so the court is going to have to figure out what's reasonable. I mean, the complaint that the government has filed says that the government needs applicant level data to determine whether Harvard is complying with the Students for Fair Admissions case. I'm not sure that that's even true. If Harvard has provided all of its policies, all of its procedures for admitting students, for example, and let's say that those procedures say you're not to consider race and the people who read applications don't have available to them the race of applicants.

23:20Audrey Anderson:I think there might even be an argument to be made there that without some kind of reason to open a full-on investigation, the government isn't entitled to more data. That's probably a stretch of an argument. But what's really interesting to me, June, is that the government, since the Trump administration, has said that in enforcing Title VI, which is the law we're talking about here, no race discrimination if you receive federal funds, they are no longer going to pursue cases of what we call disparate impact. Disparate impact is you may have a racially neutral factor that has a disproportionate impact on, we used to think about it, as racial minorities.

24:09Audrey Anderson:So a classic case of that is a fire department that has a written test for firefighters to be promoted. The Department of Justice decades ago brought a bunch of cases against fire departments saying, look, you use this test, it's spatially neutral. But when you use it, your numbers of Black and Hispanic people who can be promoted go way, way down. It has a disproportionately racial impact. And we get to look at that disproportionate impact and dig further to see if you really need to have that test. The government under Trump said, we're not going to pursue those kinds of cases. We don't care about disproportionate impact.

24:57Audrey Anderson:But in the way they're going after Harvard, that's what they're doing. They want to look at disproportionate impact. Harvard, do these race neutral factors you are using in admissions have a disproportionate impact against white people? So I see it as really ironic that they're not calling it disproportionate impact, but they seem to be interested in using a disproportionate impact theory in college admissions when it hurts white people, but they're not going to use it in other areas where it hurts minorities.

25:36Alan Spears:That's interesting. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Audrey Anderson of Basperian Sims. Is the timing of this latest lawsuit a little bit suspect? I'm June Grosso, and you're listening to Bloomberg.

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27:02Alan Spears:The Justice Department sued Harvard University for allegedly failing to hand over documents related to investigations into racial discrimination in admissions. It's the latest legal clash between the Trump administration and the Ivy League institution. I've been talking to Audrey Anderson, head of the higher education practice at Bassberry and Sims. Is the timing of this lawsuit suspect? Because there was a report by the New York Times that Trump had dropped his demand for$200 million from Harvard. And then the president came out on Truth Social and announced that he was now seeking$1 billion in damages from the university, although he didn't say under what authority he'd be seeking that money.

27:51Alan Spears:And then all of a sudden you have this lawsuit. So it seems like it's part and parcel of the same thing.

27:58Audrey Anderson:Well, I think that's going to be one of the first arguments that Harvard makes is that this is just more of the same. this is just more of the government's retaliation against Harvard for its speech. You know, Harvard right now has two lawsuits going on against the government, where one in the district court, they're both on appeal right now to the First Circuit Court of Appeals. But both of those suits, it won on First Amendment grounds, saying that the government is just taking retaliatory measures against them because they have spoken out against the government's efforts on DEI and the government's efforts on foreign student visas.

28:41Alan Spears:Also adding to that, the Defense Department is severing academic ties to Harvard and ending professional military education fellowship at the Harvard Kennedy School of Government at the end of the current academic year. And that's within days of the suit. Do you have any idea what President Trump was talking about when he was calling for a criminal investigation and a billion dollar fine?

29:05Audrey Anderson:The criminal investigation is a new thing, June, and I've really scratched my head. I will admit I haven't done any research to see. I really think that's just something that the president made up. The billion dollar fine is a number that he's come up with before. He wanted a billion dollar fine against UCLA as well. He mentioned that number. So that's just a number that he's liked to throw out there from time to time. You know, what the press has reported, you know, mostly out of the New York Times is that others in the government have wanted$200 million fine out of Harvard. And Harvard has at least so far drawn a line saying we will not pay any amount of a fine to the federal government.

29:52Audrey Anderson:And that has been one of its red lines. But certainly I think that the Defense Department's actions and this lawsuit are just part of the government's tactics to continue to put pressure on Harvard in order to try to get it to settle.

30:10Alan Spears:Do you know how it is affecting Harvard? Is it affecting the number of students who apply? Is it affecting Harvard at all?

30:18Audrey Anderson:I haven't taken a look at their admissions, it has to be making a financial impact on them. But Harvard does have a large amount of financial resources. They floated some bonds last year in order to get some additional funds in order to operate and in order to fight the federal government, but it can't go on forever. So they have to be starting to feel the pinch and feeling some uncertainty. And just kind of overall, June, you know, the damage this is doing to higher education in terms of us losing the best and brightest researchers who are not seeing the United States as the best place for them to be able to research.

31:06That damage is increasing every day as they look to go to Europe or Canada or China in order to conduct the most important groundbreaking research.

31:21Audrey Anderson:And the United States used to be the best place, hands down, for those people to go. And now we're losing our own researchers and we're losing researchers from around the world.

31:31Alan Spears:It's not only Harvard. The University of Pennsylvania is resisting a subpoena for information about employees who brought complaints about anti-Semitic discrimination and about those who are members of Jewish groups on campus. Yes.

31:49Audrey Anderson:Yes, that one is really troubling to me, June. They want the University of Pennsylvania to give them lists of people who have been members of Jewish groups and who have participated in Jewish group activities so that the government can reach out, they say, so that the government can reach out to those people individually and say, have you experienced any anti-Semitism while you're at the University of Pennsylvania. And the University of Pennsylvania said, hey, we're a little uncomfortable with that. How about if we just send everybody at the university the email that you want us to send them saying, hey, if you have witnessed or been the subject of any antisemitism, here are the people in the government who you should reach out to because they want to hear from you.

32:40Audrey Anderson:Why don't we send that to everybody at the university? And the government is not satisfied with that. And I cannot for the life of me figure out why the government would not be satisfied with that accommodation and instead is insisting on getting a list of Jewish employees at the University of Pennsylvania.

33:03Alan Spears:And the schools that settled, like Brown and Columbia, are they home free after that settlement? And the government is not interfering with them anymore?

33:13Audrey Anderson:The compliance review that Harvard is fighting about these documents over is a compliance review that the government started at some other schools as well. Some of the schools that settled, when they settled, this compliance review was something the government said, okay, we're not going to look into you anymore under this compliance review. So they got out from under this very compliance review by settling. There are some other schools, however, that don't have any settlement agreement with the government that are also part of this compliance review. And I think that some of them may have provided this kind of information to the government.

33:55Audrey Anderson:It's my understanding that schools that may have provided this information did so on an anonymized basis. So they're not giving any student names to the government. So, you know, exactly how they've done it, I don't know. The other thing that I think that Harvard may come forward and say is they're uncomfortable giving this kind of data because the government's unwilling to say what they will do with it and who they will release it to. One of the things that's concerning about this is that there's a lot of people in the public who are very interested in suing universities like students for fair admissions.

34:42Audrey Anderson:There's a lot of groups like that out there who would love to have this kind of data so that they can do their own analyses and then bring lawsuits against colleges and universities. And so if the government's not promising to keep this data within the government, and maybe even if they are promising, because there's a lot of distrust right now, it's really quite concerning that they may share this data with private parties who have more time and interest in bringing civil suits.

35:18Alan Spears:There's always a lot of interest in bringing civil suits. Thanks so much, Audrey. It's a pleasure to have you on again. That's Audrey Anderson, head of the higher education practice at Bass, Berry and Sims. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

35:57Alan Spears:Bloomberg Daybreak is your best way to get informed first thing in the morning, right in your podcast feed.

36:04Audrey Anderson:Hi, I'm Karen Moscow.

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