The Biden administration tells colleges how they can keep engaging in race discrimination

In his opinion for the Court in the Harvard race discrimination case, Chief Justice Roberts observed: “A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.” He was responding to the dissent’s view that, as Roberts characterized it, “universities may. . .establish through application essays or other means the regime we hold unlawful today.”

Roberts’ observation also applies, I think, to guidance issued by an entity whose amicus arguments were rejected by the Court. Such guidance generally is not the best source of legal advice on how to comply with the majority opinion.

Nonetheless the Biden administration, whose arguments in the Harvard case were rejected, has issued legal advice on how to comply with the majority opinion. To be more precise, it has provided advice on how to continue to favor blacks in college admissions and still claim to be complying. And like the dissent, Team Biden counsels using application essays for this purpose.

The Biden administration’s legal advice comes in the form of a “Dear Colleague Letter” and a “Questions and Answers resource” designed to “help colleges and universities understand the Court’s decision as they continue to pursue campuses that are racially diverse and that include students with a range of viewpoints, talents, backgrounds, and experiences.”

The documents amount to a roadmap to enable colleges and universities to maintain, mainly through the use of application essays, the regime the Supreme Court held unlawful in the Harvard case. To be fair, the Court’s opinion creates that opening. So we shouldn’t be surprised that the Biden administration and colleges like Harvard aim to drive a truck through it, notwithstanding the Court’s warning against doing so.

Ever helpful, the Biden administration provides advice to those who want to write, or coach applicants to write, essays that colleges and universities can use to engage in racial favoritism. It even offers examples of the kinds of essays to write for this purpose.

For example, a university could consider an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra or an applicant’s account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent. An institution could likewise consider a guidance counselor or other recommender’s description of how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team. Similarly, an institution could consider an applicant’s discussion of how learning to cook traditional Hmong dishes from her grandmother sparked her passion for food and nurtured her sense of self by connecting her to past generations of her family. 

This reads like a parody, but it is not. In the Biden administration’s view, learning to cook traditional Hmong dishes and thereby “connect” with one’s ancestors is a credential for admission to a selective college. So is joining a high school debate team (not winning anything, just joining), if you’re a member of a racial or ethnic group that’s sparsely represented at your high school.

So is claiming to have experienced racial prejudice at a rural high school. Colleges apparently can take an applicant’s word for this “lived experience” because rural America is, you know, so racist.

The Biden administration’s examples are notable for what they don’t include. How about an essay that describes coming to America from an Asian country at age-eight with parents who don’t speak English and don’t have much money, and going on to win debate tournaments or other prizes, ace hard high school courses, and score extremely well on the SAT?

These are accomplishment that should count for plenty with colleges like Harvard. But the Biden administration doesn’t include an essay about them because this is the profile of many Asian-American applicants whom such colleges discriminatorily reject in order to favor blacks.

So instead, Asian-Americans are encouraged to write about cooking and their ancestors. What a joke.

The Biden administration provides no examples of essays through which whites can get special consideration. But it seems to me that, under the guidance it has provided, a white applicant should get credit for overcoming shyness to join a debate team or for learning to cook Hungarian dishes. I doubt that essays like these will move the needle for a white applicant. But if this sort of essay works only for favored racial and ethnic groups, that will demonstrate unlawful discrimination.

What the Biden administration is calling for here is the (further) debasement, of the admissions essay. But it’s for a good cause — enabling colleges and universities to keep discriminating in favor of blacks and Hispanics.

Will colleges get away with this? Up to a point, I think.

Elite colleges will be able, I’m guessing, to use essays to keep the percentage of blacks in their entering classes from falling into the low single digits. However, if they use them to keep black representation at the same level that exists now, or close to it, the Supreme Court (at least as now constituted) won’t tolerate it. The ruse will be too transparent and create too many anomalies.

As Chief Justice Roberts made clear, “what cannot be done directly cannot be done indirectly.”

However, getting another of these cases to the Supreme Court will take a few years and a huge amount of effort. I fear that, with the open encouragement of the Biden administration, many colleges and universities are prepared to make opponents of race discrimination expend that time and effort.