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Story highlights

The Justice Department's interest in Harvard's policies stems from a 2015 federal complaint

It has concluded the school is "out of compliance" with federal law

(CNN) —  

The Justice Department is actively investigating Harvard University’s use of race in its admissions policies and has concluded the school is “out of compliance” with federal law, according to documents obtained by CNN.

The Justice Department’s battle with Harvard potentially sets the stage for the first major legal test of affirmative action policies under the Trump administration. Last year, the US Supreme Court ruled that race can be one among many factors universities use in making admission decisions.

Two letters from the Justice Department’s Civil Rights Division indicate that Harvard has challenged the department’s authority to investigate, and further state that if the school fails to provide documents to the department by December 1, the agency may file a lawsuit against the school.

“As we have repeatedly made clear to the Department of Justice, the university will certainly comply with its obligations under Title VI. In the process, we have 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,” Anna Cowenhoven, Harvard’s associate dean of communications, said in a statement to CNN.

Harvard DOJ investigation

Additional correspondence obtained by CNN shows that the Justice Department formally notified Harvard it was under investigation on September 20 and since that time, lawyers for the agency and the school have been trading letters over the scope of the department’s document requests, despite what Harvard noted were “its concerns about the highly unusual nature of this investigation.”

The Justice Department’s interest in Harvard’s policies stems from a 2015 federal complaint that accuses the school of discriminating against Asian-Americans in admissions. When The New York Times reported in August that the Justice Department was looking for lawyers to work on “possible litigation related to intentional race-based discrimination in college and university admissions,” the department said that the posting was related to an ongoing case rolled over from the Obama administration.

“The posting sought volunteers to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior administration left unresolved,” Justice Department spokeswoman Sarah Isgur Flores said in a statement at the time.

“The complaint alleges racial discrimination against Asian-Americans in a university’s admissions policy and practices. This Department of Justice has not received or issued any directive, memorandum, initiative, or policy related to university admissions in general. The Department of Justice is committed to protecting all Americans from all forms of illegal race-based discrimination,” she had said.

But these more recent letters from the Justice Department, first reported by The Wall Street Journal, mark the first confirmation that the school is currently under investigation.

Supporters of affirmative action in college admissions say that it levels the playing field in higher education by welcoming traditionally excluded groups like minority students, whereas its critics say the practice favors one group over another based on race instead of academic achievement.

“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,” Justice Department spokesperson Devin O’Malley told CNN in a statement.

Yet former Justice Department officials told CNN the Harvard case marks a sign of what’s to come.

“The Justice Department clearly appears to be on the hunt for a case to bring a significant challenge to affirmative action,” said Vanita Gupta, former head of the Justice Department’s civil rights division under President Barack Obama who now leads the Leadership Conference on Civil and Human Rights.

Gupta noted several factors making the Harvard case somewhat unusual for the Justice Department’s intervention, including the fact that private attorneys are already aggressively litigating the case and the Department of Education dismissed a complaint against the school back in 2015.

“The Justice Department is going out of its way to scoop this case up and get involved,” Gupta said.