Questions Mount Over Whether a Supreme Court Ruling Against Affirmative Action Will Change Anything
Even if the Supreme Court rules against the use of race and ethnicity in admissions, colleges and universities are set to scan for legal loopholes in response.
Armed with a conservative supermajority, the Supreme Court this fall may declare that the use of affirmative action in college admissions is unconstitutional after it hears two cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina..
A ban against race and ethnicity considerations has the potential to reshape recruitment strategies beyond campuses and into the corporate world, experts say. However, little might change for elite universities, which can pursue legal loopholes to effect affirmative action by other means.
“Schools will use various subterfuges to try to use race without explicitly using race,” a law professor who filed an amicus brief urging the court to topple its affirmative action precedents, David Bernstein, said. “There’s already preemptive moves by some authorities in the educational establishment to evade a ban on preferences by eliminating the most objective criteria for admissions,” standardized test scores, he said.
Although the U.S. News & World Report and private ratings agencies penalize schools that do not require applicants to submit scores, university administrators might still abolish the requirement in an effort to maintain affirmative action within the limits of the law.
Top universities like Harvard and Stanford have continued their SAT- and ACT-optional policies implemented during the pandemic, while the University of California school system has gone a step further and prohibited these considerations.
The leading law school accreditor, the American Bar Association, has proposed eradicating the LSAT requirement. “If you eliminate that test, then that gives you a lot more leeway to admit whoever you want,” Mr. Bernstein said. He predicted that if affirmative action is outlawed, universities will likely replace existing considerations with proxies for applicants’ race.
Opponents of affirmative action argue that race-blind policies will still result in diverse student bodies while abiding by the Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment’s prohibitions against racial and ethnic discrimination.
The founder of Students for Fair Admissions, Edward Blum, who is spearheading the litigation, told the Sun: “Giving a greater weight to students from economically disadvantaged backgrounds will produce an individualized and diverse student body without treating students differently by race.”
Mr. Blum added: “It cannot be reasonably argued that in the name of diversity, the daughter of an Asian working-class immigrant should be penalized in her efforts to gain admission to any competitive university over the daughter of a successful white, Hispanic, or African-American professional.”
In each admissions cycle, Harvard sorts applicants into the racial categories of Asian American, African American, Hispanic American, Native American, Native Hawaiian or other Pacific Islanders, and White. The Department of Education designed these labels to unify the categories federal agencies used for recordkeeping — not to achieve educationally beneficial diversity in higher education — warning in 1978 that they should not “be viewed as determinants for eligibility for participation in any Federal program.”
Instead of racial sorting, Harvard and other universities could implement “political criteria” like identifying students who live on Native American reservations or descended from enslaved Americans, which might be subject to less scrutiny in court, Mr. Bernstein suggested.
The admission process could also shift to give greater weight to applicants from poorer Zip codes and under-resourced schools, or those who have demonstrated leadership skills in student organizations focused on diversity and inclusion.
Under this scheme, the undergraduate admission application used by nearly all top colleges and universities, the Common Application, would continue to collect users’ race and ethnicity, but it would forward this data to schools only after a given admissions cycle so they could report it to the Department of Education, as is required by civil rights law.
“Assuming that Harvard and UNC lose, I think the first thing colleges and universities are going to try to do is skirt the law by pulling back on releasing statistics,” the communications director at a nonprofit that defends academic freedom in higher education, the National Association of Scholars, Chance Layton, speculated. “I think they’ll try and continue along that path until they get sued.”
Mr. Layton expressed the idea that leading universities can afford the litigation risk: “They’ll keep down this lane, at least signaling their virtue for as long as they can, until it becomes a true financial factor for them.”
On the other hand, Mr. Berenstein foresees that less prominent universities that are under less legal scrutiny will continue their existing policies regardless of the Nine’s decision in both cases. The efficacy of eliminating affirmative action will also depend on state politics, with conservative state attorneys general likely to force state universities to comply with race-blind policies.
If the Nine rules in favor of SFFA when the decision is issued next June, the organization’s next phase of litigation would likely be to determine whether admissions considerations that are not explicitly racial — such as historial and political classifications that implicitly identify students’ racial backgrounds — are proxies for discrimination.
“It’s hard enough to get these cases to court when there’s explicit discrimination,” Mr. Berenstein explained. “The only way to really root out the use of preferences would be if you had a really aggressive Department of Justice.”
Legal and reputational fears would fuel tensions at universities over these considerations. If the ABA forces law schools to abandon the LSAT to maintain preferences that admit less qualified students, those who refuse will likely fear being discredited by the rating agency, even as its demand would conflict with a high court ruling against race-conscious policies.
The corporate world could also find itself embroiled in the issue if an affirmative action ban sparks litigation against employers whose recruiting practices target minority students, such as internship programs intended for students interested in diversity, equity, and inclusion, Mr. Berenstein suggested.
“There are always some people at universities or corporations or whatever who are uncomfortable with the way preferences are used and would like to speak out against it, but they don’t want to be canceled,” Mr. Bernstein said. “If they have the law on their side, that gives them an excuse.”