How Universities Will Sidestep SCOTUS On Affirmative Action

Embracing affirmative action is virtually a job qualification for university administrators. The same is true, alas, for faculty and students in the humanities and social sciences. They march in lockstep toward a society permanently categorized by race, all with the best of intentions but not the best of outcomes.

They aren’t just woke. Their eyelids are sewn open. They have no intention of snoozing if the Supreme Court rules their current admission policies are illegal. They will stand proudly in the schoolhouse door, protecting policies they believe promote “social justice” and “equity.”

Their tactics to evade the court are surprisingly simple. Since admissions tests leave traces of discrimination, they’ll drop them. Having ditched these useful standards, university bureaucrats can sit behind closed doors, choose the applicants they favor, reject those they don’t, and leave no pesky evidence they are violating the law. Asian Americans, Jews, and other disfavored groups won’t have a record to show their test scores are systematically higher than favored groups, who are now being admitted despite their scores. To misquote Martin Luther King, universities are looking at the color of applicants’ skin, not the content of their academic qualifications.

Universities aren’t waiting for the Supreme Court to rule on whether affirmative action is constitutional. They already taking preemptive steps, designed to keep their current practices in place, this time without leaving fingerprints. Some 1,700 colleges and universities have already made SAT and ACT test scores optional for admission.

Why have universities dropped standardized tests? Not because these tests are biased or because they fail to predict academic performance (their primary purpose). Quite the contrary. The tests have been assiduously scrubbed to prevent cultural or racial bias, as they should be, and they are recognized as valuable tools to match students with the colleges where they are most likely to thrive academically.

No, the tests are being dropped for purely political reasons. Put simply, too many of the “wrong” people score high and too many of the “right” people score low, as far as universities are concerned. If admissions committees aren’t constrained by test scores, they can sculpt the class to the shape they want. Equally important, if the test results were on record, outsiders and potential litigants could see the gaping differences between categories of students who are admitted and those who are rejected.

Universities understand the risks of transparency, so they play hide-and-seek. They intend to keep playing that game, regardless of how the Supreme Court rules. That’s what Harvard constitutional law professor Laurence Tribe meant when he said, “Universities as intelligent as Harvard will find ways of dealing with the [court] decision without radically altering their composition. But they will have to be more subtle than they have been thus far.” In this case, “subtle” means “don’t leave any evidence for the courts.”

Tribe is outlining a deceptive strategy to preserve affirmative action in case the Supreme Court rules against it. Such a ruling is a real possibility now that the highest court has agreed to hear cases involving discriminatory admissions at Harvard and the University of North Carolina. Because those universities’ practices are standard fare, the court’s decision will have wide application.

Previous SCOTUS rulings favoring affirmative action are in peril for several reasons. The most obvious is the court’s conservative majority. In addition, conservatives possess a powerful constitutional argument, one that has persuaded the public for several decades. A basic tenet of American law is that public institutions cannot discriminate according to race, creed, color, sex, or national origin. Affirmative action does exactly the opposite, authorizing positive discrimination to remedy past injustices. This effort to permanently encode “the right kind” of discrimination in law turns one of the country’s greatest achievements on its head.

Does it make any difference that Harvard is a private university? The court will have to decide, and it will consider whether Harvard’s acceptance of billions in taxpayer funds is relevant to the question. The irony here is that progressives could be the victims of their decades-old efforts to erase any line between public and private institutions. When progressives controlled Congress and the courts, they insisted that large private institutions should be treated like public institutions. They made the same argument about small businesses that are open to the public or involved, however loosely, in interstate commerce. Those arguments make it awkward to claim now that Harvard deserves special consideration as a private institution.

The court’s conservative majority and our nation’s ideal of non-discrimination are not the only reasons affirmative action is in deep trouble. Two other reasons also matter. One is that affirmative action was always conceived — and justified — as a transitional policy, not an enduring one. In the aftermath of the great civil rights laws of the mid-1960s, Americans recognized that blacks had long faced severe and noxious burdens — in the South under

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