Tuesday, August 8, 2023

Harvard’s Cynical Move to Get Around the Affirmative-Action Decision

National Review Online

Tuesday, August 08, 2023

 

When Chief Justice John Roberts — writing for a 6–3 Supreme Court majority in Students for Fair Admissions v. Harvard and University of North Carolina — struck down racial discrimination in college admissions at the end of June this year, we cheered it as a manifestly just and long-overdue outcome, consistent with the 1964 Civil Rights Act. Yet we were under no illusions as to how elite institutions would respond to the Court’s ruling:

 

Nobody pretends that the nation’s colleges will give up looking for ways to quietly discriminate on the basis of race in order to benefit favored groups at the expense of disfavored groups. The ideology of doing so is too entrenched to permit any response but massive resistance. The Court, unwisely in our view, creates an incentive for this by noting that applicants could still discuss their race in their application essays, although it tries to head off mischief by warning universities not to use those essays as a license to continue discriminating.

 

Let no one say we spoke too soon, or too cynically. Last Tuesday, Harvard University — one of the two named defendants in the Supreme Court’s ruling — revealed its new set of required admissions essays for fall 2024, and the very first (and thus presumably most important) prompt is as follows: “Harvard has long recognized the importance of enrolling a diverse student body. How will the life experiences that shape who you are today enable you to contribute to Harvard?”

 

Harvard’s admissions office was of course taking its cues not from National Review editorials, but rather from Chief Justice Roberts’s majority opinion and Sonia Sotomayor’s dissent, which were in dialogue with one another on this specific matter. Roberts wrote that “despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.)”

 

It is not, yet Harvard and others will doubtless gesture to it nonetheless as they pursue their admissions goals by these suggested sub rosa means. For the battle against racial discrimination in education (presently disproportionately against Asian applicants, tomorrow against whatever the elite next decides is an “overly successful” group) did not end with the Supreme Court’s ruling. It has instead moved on to a new phase of quasi-legal “resistance” — a term that should be depressingly familiar to all who lived through media commentary on the behavior of institutional Washington during the Trump administration, and meant in precisely the same way. Elite progressive educational institutions were unlikely to experience a radical moral epiphany the moment the Supreme Court made its ruling, and abjure their discriminatory impulses and racial fixations. Unless compelled to do so by further legislation or judicial rulings, they will now simply discriminate by other means. Supporters of colorblindness and the rule of law will have to be vigilant and willing to bring new cases to circumvent the circumventors.

 

The next several years of behind-the-scenes racial tinkering in college admissions will be done in defiance of the law, not openly but dressed up in a new “adding diversity to our community” admissions-essay language. (The “video essay” is but a matter of time, and for the most cynical of reasons; Columbia Law School recently backtracked after briefly listing such a proposal on its website.) Numerical scores vulgarly grading applicants in racial categories may be formally dispensed with; the balance will instead be tabulated mentally, and the results disguised elsewhere. But Harvard has signaled its defiance as openly as it can. Neither it nor its peer institutions (nor the long-embedded bureaucracies within them) will stop attempting to build the image of a “racially ideal student body” merely because the Supreme Court of the United States told them in no uncertain terms it was against the law.

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