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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