On Monday, lawyers for Harvard, the University of North Carolina, and several other interested parties showed up at the Supreme Court to defend affirmative action, which the newly conservative-leaning Court seems inclined to curtail. It proved hard to defend an intensely confused status quo. But the plaintiffs promised that they didn’t want to make colleges truly race-blind after all—that they’d be more or less happy if schools engineered their racial compositions by indirect means. That foreshadows the revolution in admissions practices that will arrive if the Court does what it’s expected to do.
The schools were reluctant to emphasize the importance of racial preferences to their current admissions processes, or even to explain what goals they were trying to achieve. This was in part, no doubt, to conceal the ugliness and sheer size of racial preferences. But it was also in part because the status quo—the legal regime the schools sought to defend—requires preferences to operate in a covert and ill-defined manner.
North Carolina solicitor general Ryan Y. Park, arguing for UNC, cited expert testimony to claim that race affected only about “1.2 percent of our applicant pool.” The plaintiffs’ expert, Duke economist Peter Arcidiacono, had a very different interpretation of that same statistical model, using it to calculate that more than half of black Harvard students would not get in without consideration of race. Challenging a lawyer for the plaintiffs, Justice Sonia Sotomayor claimed that race is “never the determinative factor” in the school’s admissions.
Seth P. Waxman, Harvard’s lawyer, was slightly more candid. “Race in some—for some highly qualified applicants can be the determinative factor, just as being the—you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip,” he said. At another point, he obliquely conceded a finding by the district court in the case that race was determinative for 45 percent of black and Hispanic Harvard admits.
And what are the schools aiming to accomplish with these little “tips”? “We do not have some sort of racial target or a target for other diversity metrics,” Park told Justice Neil Gorsuch regarding UNC. “We say we value this diversity interest and we’re going to look at each individual applicant on—on that basis.”
But, as Justice Samuel Alito interjected, how can a court tell if you’ve reached your goal if you don’t have a target? “Our goal is to achieve the educational benefits of diversity,” Park replied. “And I understand that that is a—a qualitative standard that is difficult to measure, but I do not believe that a standard merely being qualitative means that it’s not susceptible to—to rigorous review.”
Chief Justice John Roberts asked Park when the school itself would know it had enough diversity that it could stop discriminating by race. Wouldn’t it have to check the data to see if had a “sufficient number” of African-Americans, for instance? “I think there will be some attention to numbers,” Park admitted, “but the feedback loop between our assessment of our campus environment and the admissions process, we will celebrate the day when we get to the point where we have reached the point where we do now with our minimal consideration of race.”
Justice Ketanji Brown Jackson, the Court’s latest addition, even raised the question of whether anyone had standing to challenge UNC’s policies, given that the effect of race is so well-hidden among other factors in the admissions process. “No one’s automatically getting in because race is being used,” she asserted.
Affirmative-action jurisprudence has been passed down through several generations of the Court’s muddled-thinking swing voters, and the status quo requires obfuscation. If the schools could clearly describe what they were doing in regard to race, they’d be breaking the law. Lewis F. Powell Jr. wrote the plurality opinion in 1978’s Regents of the University of California v. Bakke; Sandra Day O’Connor wrote for the majority in 2003’s Grutter v. Bollinger; Anthony Kennedy did the honors in Fisher v. University of Texas in 2016. More liberal justices would have straightforwardly allowed the use of racial preferences to help underrepresented and disadvantaged groups. More conservative justices would have simply barred consideration of race as a violation of the Constitution or civil rights law. But those ideological wings of the Court never had the votes.
What emerged instead was a bizarre system in which colleges may discriminate on the basis of race but are prohibited from being too frank about what they’re doing. Schools can’t give a specific number of bonus points to applicants from certain groups or use quotas to ensure a given racial balance. They can, however, use race as a “plus factor” in a “holistic” process meant to create “diversity” on campus. They have to make sure their use of race is “narrowly tailored” to meet their diversity goals in ways that “race-neutral alternatives” cannot. They have discretion to define those goals—so long as they don’t use actual numbers.
Justice O’Connor made things all the more difficult when she wrote, in 2003, that “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Thus all the careful talk about not having any racial goals except the “educational benefits of diversity,” the claim that a college fought a racially fraught case to the Supreme Court to defend a “minimal” 1.2 percent of its admissions process, and the focus on the question of when preferences might no longer be needed. It’s highly likely that this mess will soon be swept away in favor of a much stricter system, perhaps one in which no race-based “plus factors” are allowed at all.
But will that mean the end of racial bean-counting in higher ed? Hardly. To be sure, the Court’s ruling will probably reduce the role of race in admissions. But these processes are subjective enough that no outside force can stop schools from considering race. And the plaintiffs’ lawyers seemed to accept that.
A surprising amount of discussion on Monday had to do with how schools could continue to balance their racial numbers absent outright consideration of race. Justice Elena Kagan, for example, raised the question of whether a policy of taking the top 10 percent of every graduating high school class in a state was illegal, if it was done in part for the purpose of increasing representation of minority students (by way of admitting the highest scorers from segregated minority schools). In some contexts, after all, policies with a “disparate impact” by race are frowned upon—especially if the disparate impact was the actual point. But Patrick Strawbridge, representing those suing UNC, said such policies are fine, so long as race isn’t the only reason for them—socioeconomic diversity is another justification, for instance—and schools could argue they would have adopted the programs even if race weren’t a consideration.
Student essays are another obvious workaround. Applicants write about their experiences as members of underrepresented groups, admissions officers award the essays the highest marks, boom, diversity. How schools should treat such essays came up several times. Strawbridge repeatedly endorsed the conceit: an essay touching on the applicant’s race can show “grit,” “extracurricular involvement,” “perhaps a global interest in the world,” or an “ability to adapt” to a “new language” in a “new environment.” Cameron T. Norris, the lawyer for Harvard’s challengers, similarly emphasized that Harvard currently considers race “even if [applicants] never write about race or explain how it influences their views” and conceded that “culture, tradition, heritage are all not off limits for students to talk about and for universities to consider” in the essay context. And Waxman—Harvard’s lawyer—made the intriguing point that if race is considered only via essays, it will benefit only the students who consider it an important enough aspect of their identity to write about.
The plaintiffs’ lawyers in both cases did seem wary of schools employing a more direct proxy for race, such as being the descendants of slaves. It may prove difficult to draw a precise line between proxies that are allowed and those that are not.
Also likely to prove important going forward is that schools have become open to truly extreme changes to their admissions policies. Some have gone not merely test-optional but test-blind, meaning that they refuse to consider standardized test scores even if students send them.
As my Manhattan Institute colleague Roland Fryer discussed recently, the most efficient way to achieve any given racial balance is also the simplest: install a quota and admit the top applicants from each racial group. Proxies such as class and neighborhood might do a better job of measuring true disadvantage, but if a specific racial balance is really the goal, the use of proxies requires institutions to lower their standards for a broader swath of applicants, with many whites qualifying for the new preferences.
Universities’ unwillingness to lower academic standards is therefore a key check on their ability to pursue racial balancing. At oral argument, Waxman dismissed a race-neutral alternative proposed by the Harvard plaintiffs because it would reduce the number of matriculants with high academic indexes by 17 percent. That may or may not be a bluff in Harvard’s case. But if the flight from standardized testing is any indication, many schools will lower and eliminate objective standards as much as they need to in order to maintain their desired demographic numbers.
In all likelihood, affirmative action’s legal regime will become much simpler and clearer after the Court issues its ruling. But that doesn’t mean that race will cease to be a consideration for colleges, or that their approach to the topic will become any more transparent.
Photo by Eric Lee for The Washington Post via Getty Images