Wai Wah Chin The Next Battle Over Racial Preferences While the Supreme Court has swept away affirmative action, universities still intend to practice preferential admissions by using proxies for race.
With its ruling that Harvard and the University of North Carolina–Chapel Hill (UNC) unconstitutionally discriminated against Asian applicants, the Supreme Court has delivered justice. Congratulations and thanks are due to the plaintiff in these cases, Students for Fair Admissions (SFFA), as well as to its president Edward Blum, for mounting a tireless, principled fight.
Universities, however, have made no secret that, regardless of how the Court ruled, they would continue to bring to campus students who wouldn’t have made the cut if they hadn’t been black. It is axiomatic for universities that a campus with “not enough blacks”—whatever that means—is guilty. It is the only acceptable starting point of any discussion. The universities believe, moreover, that “diversity” of student skin color—meaning having “enough,” but not “too much” of any particular group, whatever that means—can only be achieved by racial favoritism in admissions. Why are colleges able to achieve other forms of diversity without quotas or favoritism, such as diversity of religion, which the counsel for UNC conceded to the Supreme Court thrives on campus without favoritism? This question is off limits.
So if the Court won’t allow universities to take race into account, then the universities will look for other ways to do so. Some have even advocated open disobedience of this “ultra-MAGA” Supreme Court, as the White House has called it.
How can universities do an end-run around the Supreme Court? The University of California (UC) system’s recent actions are instructive. In 1995, the UC regents voted to end affirmative action, and in 1996, Golden State voters approved Proposition 209, which banned affirmative action in public education, contracting, and hiring. Legislators subsequently tried and failed several times to restore affirmative action. Then, in 2019, UC president Janet Napolitano convened a faculty task force to evaluate the continued use of standardized testing in admissions. The UC faculty is well known for its devotion to the DEI (diversity, equity, and inclusion) cause. However, after a year-long study, the task force gave the sober recommendation to keep the standardized test requirement. Undeterred, Napolitano ordered the UC system to go test-optional anyway. White and Asian families soon realized that “test optional” really applied only to blacks, Hispanics, and some other groups, but not to them. Then, in 2021, the UC system went “test blind,” meaning that, even if an applicant submitted SAT scores, UC would disregard them. (Today, following California’s lead, all but a handful of top-tier U.S. universities are test-optional.)
The argument for ditching the SAT because of its alleged failings is as unconvincing as it is transparent. Banishing the only objectively comparative measure of academic merit removes the easiest way to detect racial discrimination in university admissions. Without test scores, evidence of the “crime” is much harder to see.
To salvage its rapidly diminishing fortunes, the College Board itself has joined the bandwagon. Tucked into its SAT digitization project is the disclosure that test items will be removed if different races perform differently on them. The College Board thus aims to create a Harrison Bergeron test, rigged to equalize outcomes by race.
The next step for universities is to concoct a set of proxies for race that are facially race-neutral in order to deliver “enough” blacks to campus. Socioeconomic preference is the leading criterion. The UC system already deploys it with increasing finesse; Asian families in California have reported the devastating impact of the preference. Facially race-neutral preferences can be revised continually, as socioeconomic conditions change (the need for racial apportionment, universities claim, is unending). Even apart from the Supreme Court’s ruling in SFFA v. Harvard, such practices are in direct violation of Prop. 209.
The racial mischief in socioeconomics springs from the “socio” part. For example, in New York City, no other demographic group has higher poverty rates than Asians. Under a system of simple economic preference, Asians would receive a boost. But adding reasonable-sounding “socio” factors—such as single-parent households, incarcerated family members, and employment status—removes most Asians from consideration because even poor Asian families frequently fail to meet these criteria. (Straight economic preferences are not favored by universities because, it turns out, black students really aren’t poor enough.)
Three noteworthy lawsuits are complicating the search for facially race-neutral proxies. The first, brought in 2018 by the Chinese American Citizens Alliance of Greater New York and others against New York City, concerns the city’s famous Specialized High Schools. The second is a 2021 lawsuit by parents of the top-ranked Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia. The third is a 2021 case in which parents sued Boston over admissions to its elite Exam Schools. In each case, merit-based academic criteria resulted in “inequity”—namely, “too many” Asians and “not enough” blacks—and so were replaced by facially race-neutral proxies for race.
These cases feature three of the most commonly discussed race proxies for universities: socioeconomically engineered thresholds (New York), “holistic” admissions laden with non-academic personality assessments (Thomas Jefferson), and zonal quotas (Boston). Granted, different statutes and precedents apply to high schools, and each of these cases has unique circumstances, but the Supreme Court must be well aware of the possible university implications of these cases. Significantly, all three cases are in appeal, moving towards the Supreme Court.
Legal questions aside, the use of sham proxies for race should offend us. It should also alarm us: all these proxies entail the dumbing down of standards and the end of merit. True, the meritocratic ideal may never be perfectly realized, but the pursuit of it is better than the alternatives. America welcomes people with many different values, traditions, interests, and specializations. Identity-blind meritocracy is the fairest and best way to absorb them, and it contributes to our richness as a nation. The Court’s SFFA ruling advances this ideal.
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