How universities are getting around the Supreme Court’s affirmative action ruling

When the Supreme Court ruled that colleges and universities could no longer consider the race of an applicant when making admissions decisions in June of last year, it left thousands of institutions in a bind.

For years, the practice of affirmative action allowed institutions of higher education to provide tangible evidence that the dogmatic racial identity politics that governed their campuses and classrooms was not just talk but was actually put into practice.

Even as Harvard University and the University of North Carolina implored the court to uphold the existing standards that allowed race to be used as a secondary consideration when making admissions decisions, the truth had always been that these institutions yearned for the days when they could simply admit students based on the color of their skin and have a racial quota system like the ones that existed prior to the court's 1978 ruling in University of California v. Bakke.

Present discrimination as a remedy to past discrimination

To the higher education establishment, the admittance of black and brown students at the expense of Asian and white students was effectively the pinnacle of institutional commitment to the cause of identity politics. The words of Boston University professor Ibram X. Kendi that “the only remedy to past discrimination is present discrimination” have been the gospel of higher education admissions long before he uttered them.

Thus, when Chief Justice John Roberts declared in his majority opinion in Students for Fair Admissions v. Harvard that the Constitution prohibits racial discrimination, including the consideration of race in college admissions, and that “eliminating racial discrimination means eliminating all of it,” colleges and universities were forced to find new ways to adhere to their gospel of diversity, equity, and inclusion.

The most immediate means to navigate the new ban on affirmative action while continuing to admit students based on their race was in the words of the court’s opinion itself.

“Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” the chief justice wrote. “At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”

Roberts, in the very words that ended the old affirmative action regime, planted the seeds for a new affirmative action regime that relied instead on an applicant’s essay, rather than the checkmark that denoted his race on the application. Universities took notice.

In its statement following the ruling last year, Harvard quoted Roberts's words and then smugly added, “We will certainly comply with the Court’s decision.” Many other institutions had similar things to say about the ruling, pledging to use essay questions as a back door to admitting students based on their race.

And true to their word, institutions edited their essay prompts to encourage students to discuss their racial identity. According to Inside Higher Education, of the top 65 colleges ranked by U.S. News and World Report, 43 incorporated some sort of prompt designed to elicit a response about an applicant’s race during the 2024 admissions cycle, an increase from the previous year. Furthermore, 17 institutions had mandatory application questions that addressed topics related to diversity, equity, and inclusion.

A mixed bag

But a year later, as the class of 2028 ventured onto the campus quad, the attempts to maintain some form of race based admissions while adhering to the court’s ruling have proved to be a mixed bag.

At the Massachusetts Institute of Technology, the proportion of black and Hispanic students admitted for the class of 2028 was 15% lower than it had been for the class of 2027, which was admitted under the previous legal standards. At the same time, the proportion of Asian students increased by 7%.

A similar story unfolded at the University of North Carolina, Chapel Hill, where the proportion of non-white and non-Asian students declined by 5%. At the same time, Tufts University reported a 3% decline in black students.

But at Yale University, a different picture emerged. The proportion of black and Hispanic students at this Ivy League institution remained entirely stagnant, while the proportion of Asian students declined by 6%. The number of white students increased by 4%.

At the University of Virginia, there were negligible changes to the racial makeup of the incoming class. The proportion of black and Asian students declined by a meager 1%, while the number of Hispanic students increased by the same.

The mishmash of outcomes has only served to highlight the fact that the true impact of the ruling will take years to quantify. At the same time, the court’s prior precedent that allowed race to be considered as a secondary characteristic was likely applied by admissions officers in different ways, which could explain the variance in outcomes such as those reported by Yale and MIT.

For all of their efforts to maintain the racial makeup of their freshman classes, there is no question that the court’s ruling has made higher education’s institutional commitment to dogmatic racial identity politics a challenge. And with the blow dealt to the affirmative action regime in the admissions office, colleges and universities have become lost in a wilderness, looking for a blueprint to follow that once again conveys their institutional commitment to the principle that present discrimination is the only remedy for past discrimination.

Reparations: the new affirmative action?

At its core, the practice of affirmative action was a form of reparations for slavery and segregation. By admitting students from racial groups that had experienced discrimination, institutions believe they can play a part in correcting a historical wrong.

While the end of affirmative action led to higher scrutiny toward the practice of legacy admissions, where the children or grandchildren of alumni or donors are given priority consideration, some institutions looked to the practice as another avenue to pursue reparations.

A small but growing number of institutions have pursued the possibility of giving preferential consideration to the descendants of slaves who worked at the universities. Georgetown University in Washington was among the first to explore the idea. In 2016, the institution announced that any applicant who is descended from the 273 people who were enslaved on the grounds of the institution would be considered as a legacy applicant. Similarly, the University of Virginia is now encouraging applicants to discuss their “personal or historical” ties to the university, including being “a descendant of ancestors who labored at UVA.”

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

But for universities with limited or no historical connections to slavery, pursuing reparations through the legacy admissions process is not as actionable as it is for schools such as Georgetown or UVA. At the same time, the solicitation of essays discussing race has so far failed to achieve the demographic results that institutions had maintained and sought under the old affirmative action regime.

A year after Roberts delivered the Supreme Court’s opinion in Students for Fair Admissions and ended affirmative action nationwide, the liberal higher education establishment continues to grasp for a policy that serves its purposes, even as the full impact of the court’s decision will not be known for several years. For now, the administrators of these institutions, who remain committed to the dogmatic racial politics that governed their previous practices, are throwing everything they can at the wall to see what sticks.