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Racial Preferences Won’t Go Easily
Colleges will seek sneaky ways of filling quotas. But they’ll have trouble defending them in court.
By Brian T. Fitzpatrick
The U.S. Supreme Court is expected to rule soon that Harvard and the University of North Carolina violated the 14th Amendment’s Equal Protection Clause and associated federal statutes by considering race in admissions. I expect most universities will try to evade the ruling by using proxies for race to select students.
For a glimpse of that future, look to Thomas Jefferson High School in Alexandria, Va., a highly rated public magnet school where the student body was until recently more than 70% Asian-American. In 2020 administrators decided they wanted a greater percentage of black and Latino students but didn’t want to use race directly in admissions—that would have been too controversial. So they reverse-engineered the outcome they sought. Middle schools in Northern Virginia are a good proxy for race. By limiting how many students could attend Thomas Jefferson from each middle school, administrators increased black and Latino enrollment and decreased Asian-American enrollment.
Universities will engage in similar shenanigans if the Supreme Court rules against Harvard and UNC. They’ve done it before. When a voter referendum forbade Michigan schools to use racial preferences in admissions, they turned to preferences for applicants who live on Indian reservations or inside the Detroit city limits. Bilingual applicants also got a leg up. None of these preferences were for race, but rather for things highly correlated with applications from Native American, black and Latino students, respectively.
Universities have already begun laying the groundwork for the transition to race-neutral affirmative action. It’s one reason many have turned away from standardized tests such as the SAT. Schools will need flexibility to get their racial numbers right because no proxy perfectly correlates with race. Standardized tests get in the way.
The question the magnet-school litigation previewed is whether it will be legal to use proxies for race if the Supreme Court holds it is illegal to use race directly. I don’t think it will be, and I’m not alone. Although the panel of judges from the Fourth U.S. Circuit Court of Appeals upheld the Thomas Jefferson High School admissions scheme by a 2-1 vote, my money is on the dissent if and when it gets to the Supreme Court.
Laws against discrimination aren’t so toothless that they can be easily evaded. The Supreme Court has repeatedly ruled against racial discrimination by proxy. If the purpose of an apparently race-neutral decision is to cause racial effects, and the decision in fact causes racial effects, then the decision is as illegal as using race itself would be. This test should doom the racial proxies to which universities are expected to turn after the Supreme Court’s ruling.
There is no legal distinction between using racial proxies to help blacks and Latinos and using them to hurt blacks and Latinos. There is no way to increase the percentage of black and Latino students without decreasing the percentage of Asian-American and white students. Racial classification is a zero-sum game.
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When states purposefully draw electoral districts to include predominately black neighborhoods, it is technically race-neutral—people are classified based on geography. But the Supreme Court has repeatedly found these districts to be illegal because they failed the purpose-and-effects test. If the Equal Protection Clause prohibits racial gerrymandering of electoral districts, it also prohibits racial gerrymandering of college admissions. The two judges in the majority in the Thomas Jefferson case didn’t even address this.
Some contend that race-neutral affirmative action can’t be illegal because the Supreme Court has encouraged it as an alternative to race-explicit affirmative action. One of the judges in the Thomas Jefferson case made this argument. But the Supreme Court has encouraged race-neutral affirmative action only when race-explicit affirmative action is otherwise legally justified. Call it the lesser of two evils. If the Supreme Court rules against Harvard and UNC, race-explicit affirmative action will no longer be legally justified in college admissions. There will therefore be no reason to choose between two evils.
Achieving racial diversity means achieving a minimum percentage of each race. But minimum percentages of each race mean maximum percentages of each race, too. The Supreme Court didn’t allow racial maximums for blacks in the past, and I don’t think it will allow racial maximums for Asian-Americans or whites today. The justices have already said the Equal Protection Clause protects all races equally, and that the nation should strive to be colorblind, not color-conscious. In other words, we should be willing to accept institutions made up of our best and brightest, no matter the racial compositions.
This will be a hard adjustment for many because it’s something that we have never really done before in America. But who knows? It might be worth a try.
Mr. Fitzpatrick is a professor at Vanderbilt Law School. He was a law clerk to Justice Antonin Scalia.
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Is the Sleeping Conservative Dragon Finally Waking Up
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Increased work force is good news but it also means The Fed might feel pressed to raise rates.
The earnings period has begun and should be favorable. Should The Fed raise rates once or twice more that would increase the prospects of an early and mild recession . We also have a myriad of social and political issues that remain and must be resolved, Woke stupidity ,ie. open borders while closing police departments, attacks on children, flooding of narcotics, and I have listed them all ad nauseum in the past.
Most important of all, we have a president who hides from the public, falls, is impaired mentally and physically and, above all, has a son who has broken many laws, laundered money and the entire family appears corrupt.
America has not projected this current image in my lifetime. We were reluctant to enter the 2d WW but once we did we never looked back and after Pearl Harbor we became a winning force both in terms of military might as well military production.
Since Obama America has changed dramatically and has allowed China to ascend. Where this all ends is anyone's guess but the trends are very concerning and downright frightening.
Our debt is one of the most disturbing problems facing us and could restrain our ability to exercise our flexibility to meet and overcome our many adversarial challenges.
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