Making Race-Blind Admissions Stick

It's going to be extremely hard but it's worth the Supreme Court's trying.

The current state of the law is that colleges are permitted to use race as part of a “holistic” process in deciding whom to admit. The use of race has been justified by the Supreme Court in the name of “diversity,” which has been proclaimed a compelling governmental interest and thus adequate to overcome the statutory and constitutional barriers that normally bar using racial preference.

The explicit use of race in this way is expected to be brought to an end by the Court in its decisions in the UNC and Harvard cases. The main question most commentators are addressing is how broadly the Court’s opinion will sweep.

About four decades of increasingly toxic experience gives us the answer: It needs to sweep broadly indeed. The reason is simple. If the in-stone race hucksters currently running the show in academia are given any chance to continue their anti-white and anti-Asian programs simply by hiding or disguising them, that’s what’s going to happen. There needs to be a preemptive strike on this strategy and it needs to be unambiguous.

(I should start with two caveats. First, this is not my area of law, so I hope readers will not be shy in correcting my errors, oversights and deficiencies. Second, even if I get everything (or most things) right, I doubt my prescriptions will be adopted by the Court, and even if they are, that they’ll work. Racial preference is now so inbred in the Leftist culture running academia and much of the country that I doubt even Supreme Court law will prove to be a match for it).

We saw in the recent Fourth Circuit opinion that Paul aptly and thoroughly debunked exactly what we’ll be facing if the Court holds that race may no longer be a factor in admissions. As Paul showed, those defending the status quo are, and will continue to be, supple and resourceful, if not particularly honest, in making sure, by hook or by crook, that the status quo stays where it is.

As I see it, there will be three general approaches to doing this. The first will be to get rid of the evidence. Grades, standardized test scores, class rank and other more-or-less objective measures of academic aptitude and achievement will, in one way or another, be thrown over the side of the boat. There will be (indeed, there already is) substantial pressure to eliminate or water down standardized tests. To the extent the goal of elimination does not entirely succeed, schools will either make submitting test results “optional” or outright refuse to accept them. The aim is to make tracing the continuation of race preference hard to document by deep-sixing the most potent evidence used to prove it.

The second method of defiance will be to bury the evidence in a whole pile of other criteria, some of which will correspond to things that might actually be useful in mastering college work (like focus, determination, and demonstrated persistence) but most of which will just be fancy-sounding garbage (like “holistic” itself) designed to overwhelm what’s left of objective measures with opaque and often just phony subjective ones. And the more opaque, the better (as the Harvard people learned from taking a deserved pie in the face when, with unwise candor, they opined that Asian-American students had less appealing “personalities”). Obfuscation will be an easy task for academia, since creating mumbo-jumbo and passing it off as Higher Wisdom has been its specialty for decades.

The third method will be the one we saw in the Fourth Circuit case, to wit, a superficially race-neutral plan that its designers plan, preferably in conversations that never get recorded (or, amazingly, remembered) to enact precisely the racial balance they always wanted, but do so by pretending that they’re not really intending the adverse disparate impact on whites and Asian Americans that they know full well from the get-go, and happily accept if not in any normal sense seek, is the only way to augment the representation of their more favored races.

There may be more shell game strategies I’m not thinking of. The forces behind racial preference are strong, determined, and ingenious. They will be more formidable than their predecessors from sixty years ago, the so-called Christian Academies that, in many parts of the South, were created to keep a system of segregated schools but put it in disguise. The disguise was quite poor and eventually they failed, but they had nothing like the academic, press and nationwide cultural backing the survival of our current system of racial preference enjoys.

So what does all this mean for how the Supreme Court’s opinion should read? It means that it should read something like this:

“Our holding today that racial preference is impermissible in college admissions should not be misunderstood. It does not mean that racial preference is acceptable if well hidden or cleverly disguised. It has long been a staple of the law that a party may not do by indirection that which it is forbidden to do directly. That injunction applies with full force here.

“In order to enforce the color-blind admissions policy we have held the law demands, lower courts will need to be particularly vigilant for such preferences when either hidden outright or presented in proxy form. Accordingly, we hold that, when a school’s admissions policy is challenged as racially weighted, and there is a reasonable basis to believe the policy either explicitly violates today’s holding, or has been designed either in anticipation of it, or in reaction to it, there will a rebuttable presumption that race remains a factor. The school has the burden of overcoming that presumption by clear and convincing evidence that race and racial preference did not, directly or indirectly, and do not, play any significant part in its admission process. If the school meets that burden, ordinarily it should prevail. If not, ordinarily the plaintiff should prevail.”

Now I understand that this prescription is tough medicine. There is a non-trivial case both for diversity and for considering criteria beyond strictly objective measures. The NYT put it this way:

But even most opponents of the current system agree that colleges should take into account some parts of an applicant’s background. Consider two teenagers: One grew up with working-class parents, attended a high-poverty high school and scored 1390 on the SAT. The other went to an elite private high school, took SAT prep classes and scored 1400. Surely, the 1390 is more impressive.

When a person has overcome hardship, as Patrick Strawbridge, another lawyer opposing racial preferences, said to the justices, “it tells you something about the character and experience of the applicant other than their skin color.”

It’s hard to disagree with that as stated. The problem — as is so often the case with the Left — is less with what it states than with what it omits. First, the difference is almost never something as skimpy at 10 points out of 1400; the gap is typically much bigger than that. But the more important (although surely related) point is that we know from decades of experience that the racial preference crowd is manipulative, fiercely result-oriented, and dishonest. The Supreme Court needs to announce a tough standard because the Left has shown over many years — and for that matter has not been that shy in declaring right now — that it will work tirelessly to subvert anything less.

Finally, because I’m a believer in free markets and school choice, I think there’s a case to be made that those who like the current regimen of racial preference — odious as I find it — should be able to continue to do their thing as long as they’re honest about it. This would involve allowing a segment of colleges and universities openly to say that “their values” prefer “diversity” and “making a more just society” over, say, any serious academic achievement, and that in order to advance that goal, their admissions policies will continue to have racial preference going at full blast. This would require, to say the least, (1) a big change in present law and (2) a degree of honesty that we’re about as likely to see as my contribution to the Biden campaign. So maybe it’s a libertarian-flavored non-starter. At best, it will be the subject of a later entry.