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How Universities Will Sidestep SCOTUS On Affirmative Action

Last updated on January 31, 2022

Embracing affirmative action is virtually a job qualification for university administrators. The same is true, alas, for faculty and students in the humanities and social sciences. They march in lockstep toward a society permanently categorized by race, all with the best of intentions but not the best of outcomes.

They aren’t just woke. Their eyelids are sewn open. They have no intention of snoozing if the Supreme Court rules their current admission policies are illegal. They will stand proudly in the schoolhouse door, protecting policies they believe promote “social justice” and “equity.”

Their tactics to evade the court are surprisingly simple. Since admissions tests leave traces of discrimination, they’ll drop them. Having ditched these useful standards, university bureaucrats can sit behind closed doors, choose the applicants they favor, reject those they don’t, and leave no pesky evidence they are violating the law. Asian Americans, Jews, and other disfavored groups won’t have a record to show their test scores are systematically higher than favored groups, who are now being admitted despite their scores. To misquote Martin Luther King, universities are looking at the color of applicants’ skin, not the content of their academic qualifications.

Universities aren’t waiting for the Supreme Court to rule on whether affirmative action is constitutional. They already taking preemptive steps, designed to keep their current practices in place, this time without leaving fingerprints. Some 1,700 colleges and universities have already made SAT and ACT test scores optional for admission.

Why have universities dropped standardized tests? Not because these tests are biased or because they fail to predict academic performance (their primary purpose). Quite the contrary. The tests have been assiduously scrubbed to prevent cultural or racial bias, as they should be, and they are recognized as valuable tools to match students with the colleges where they are most likely to thrive academically.

No, the tests are being dropped for purely political reasons. Put simply, too many of the “wrong” people score high and too many of the “right” people score low, as far as universities are concerned. If admissions committees aren’t constrained by test scores, they can sculpt the class to the shape they want. Equally important, if the test results were on record, outsiders and potential litigants could see the gaping differences between categories of students who are admitted and those who are rejected.

Universities understand the risks of transparency, so they play hide-and-seek. They intend to keep playing that game, regardless of how the Supreme Court rules. That’s what Harvard constitutional law professor Laurence Tribe meant when he said, “Universities as intelligent as Harvard will find ways of dealing with the [court] decision without radically altering their composition. But they will have to be more subtle than they have been thus far.” In this case, “subtle” means “don’t leave any evidence for the courts.”

Tribe is outlining a deceptive strategy to preserve affirmative action in case the Supreme Court rules against it. Such a ruling is a real possibility now that the highest court has agreed to hear cases involving discriminatory admissions at Harvard and the University of North Carolina. Because those universities’ practices are standard fare, the court’s decision will have wide application.

Previous SCOTUS rulings favoring affirmative action are in peril for several reasons. The most obvious is the court’s conservative majority. In addition, conservatives possess a powerful constitutional argument, one that has persuaded the public for several decades. A basic tenet of American law is that public institutions cannot discriminate according to race, creed, color, sex, or national origin. Affirmative action does exactly the opposite, authorizing positive discrimination to remedy past injustices. This effort to permanently encode “the right kind” of discrimination in law turns one of the country’s greatest achievements on its head.

Does it make any difference that Harvard is a private university? The court will have to decide, and it will consider whether Harvard’s acceptance of billions in taxpayer funds is relevant to the question. The irony here is that progressives could be the victims of their decades-old efforts to erase any line between public and private institutions. When progressives controlled Congress and the courts, they insisted that large private institutions should be treated like public institutions. They made the same argument about small businesses that are open to the public or involved, however loosely, in interstate commerce. Those arguments make it awkward to claim now that Harvard deserves special consideration as a private institution.

The court’s conservative majority and our nation’s ideal of non-discrimination are not the only reasons affirmative action is in deep trouble. Two other reasons also matter. One is that affirmative action was always conceived — and justified — as a transitional policy, not an enduring one. In the aftermath of the great civil rights laws of the mid-1960s, Americans recognized that blacks had long faced severe and noxious burdens — in the South under Jim Crow laws, in the North under less flagrant but still pernicious racism. The effects were bound to linger. Erasing the legal barriers wouldn’t immediately eliminate those effects. That’s why most Americans — and the courts — initially accepted the idea that universities and other institutions could tilt the playing field, at least slightly, while the new legal regime took hold. That meant colleges could admit qualified African American applicants, even if their grades and standardized tests were somewhat lower than other students, without violating laws prohibiting racial discrimination. The premise was that these students would thrive once they moved into the non-discriminatory environment of higher education.

It is crucial to remember the twin premises of these compensatory policies. These advantages, which we now call affirmative action, were supposed to be (1) modest and (2) temporary. They were pragmatic exceptions to the deeper principle of “equal treatment” and non-discrimination. The idea — the hope — was that, as Jim Crow and its Northern analogues receded into memory, so would the need for these exceptions. Justice Sandra Day O’Connor made exactly that point in 2003 (already some four decades after the major civil rights acts) when she ruled in favor of affirmation action, concluding that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary.”

Her hopes have been dashed. The racial advantages in college admissions have been both large and permanent, confirming Milton Friedman’s epigram that “nothing is so permanent as a temporary government program.” One reason “temporary” programs become permanent is that special interests cluster around them and lobby hard to keep them. The second reason is too sensitive to be debated publicly, but it is common knowledge in admission offices. Elite colleges and their graduate and professional schools cannot achieve their goals of racially diverse student bodies if they apply equal admissions standards or even tilt them only slightly to favor some groups. The advantages must be big, and they must be offered year after year.

The scale of those advantages show no signs of diminishing. That means colleges, law and medical schools, and PhD programs admit students whom they clearly expect to perform significantly below average in their programs in order to fulfill implicit racial quotas. (The quotas have to be implicit since formal quotas are illegal.) Note that the same students — with the same SATs and high school grades — would be middle-of-the-pack at slightly less competitive universities. This skimming by elite universities produces a cascade effect. Because the less competitive universities are denied top students, they take minority applicants away from schools with slightly easier standards.

This distorted process, however well-intentioned, produces two unfortunate results. One is that some highly qualified students lose coveted slots simply because they are the “wrong” race. This racial classification, which threatens to become permanent, violates some of America’s most profound values and is the essence of the Asian American complaint against Harvard.

What happens to the preferred students after they arrive on campus? On the positive side, they give universities more racial diversity, just as proponents hoped. But that’s not the end of the story. A disproportionate number fail to graduate. Those who stick it out often gravitate to easier majors, where they face less competition. They stay away from courses in organic chemistry, advanced statistics, nanotechnology, and artificial intelligence — the very background they need to become doctors, data scientists, bioengineers, or programmers. The advantages a student receives in admission become disadvantages in the classroom.

This mismatch between affirmative-action admissions and academic performance has produced successive cohorts of angry students, frustrated that they have such difficulty reaching their career goals. It has also fostered self-segregation on campus, which is further fueled by a pervasive culture of minority victimization and white guilt, all in the name of “social justice.” The result is far from the racially integrated, multicultural environment envisioned by proponents of affirmative action.

These outcomes are hardly a surprise to university bureaucrats, admissions officers, or faculty. They see them every day, even if their lips are sealed. They still hope to follow Professor Tribe’s advice, no matter what the Supreme Court rules. Universities have learned from their mistakes. They intend to repeat them exactly.

The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.

Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago, where he founded the Program on International Politics, Economics, and Security. He can be reached at charles.lipson@gmail.com.

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