Will Racial Quotas Survive SCOTUS? By Garrett Snedeker
https://tomklingenstein.com/will-racial-quotas-survive-scotus/
Now that the first slate of undergraduate admissions statistics following the Supreme Court’s decision outlawing race-based affirmative action in Students for Fair Admissions v. Harvard and its companion case has been released, it is clear that elite colleges are following one of two paths.
The first path is largely one of prudential compliance with the Court’s ruling. Elite colleges following the first path feature incoming classes of first-year students with higher proportions of Asian and white students than in previous classes while maintaining stellar secondary school class rank and standardized test scores. Call this the path of least resistance, demonstrating prima facie that these colleges’ admissions practices hew toward the race-neutrality the SFFA decision requires.
The second path is one of greater resistance toward the Court’s ruling. With the composition of incoming classes of first-year students unchanged from previous admissions cycles or even in some cases featuring increased numbers of black and Hispanic students, elite colleges following the second path are taking increased risks of future litigation. Such litigation, even if unwelcome, would demonstrate fidelity to a regime that preserves race-based affirmative action and quotas, in spirit if not in name.
Affirmative action in college admissions has redounded toward greater percentages of black and Hispanic students, to the detriment of Asian-American and white applicants. The problem at root though is that race-conscious admissions, a group quota regime which Tom Klingenstein has rightly decried on this website and in his public remarks, runs contrary to the first principles of moral and legal judgment. As philosopher Hadley Arkes has observed, “It is the fallacy of assuming that we can draw moral inferences about persons, their goodness or badness, their moral deserts, as though race determined or controlled their conduct and character.” Setting aside the fundamental injustice of using race as a proxy for an individual’s moral standing, racial categories in modern America are imprecise groupings of individuals motivated to further political goals, as the scholar David E. Bernstein demonstrated at length in his 2022 book Classified, on which I worked as a research assistant. Elite colleges signal fidelity to these political goals by reporting racial quotas as a sign of commitment to group diversity rather than individual merit.
The majority in SFFA sought to address this fundamental injustice. As Chief Justice Roberts wrote, affirmative action 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. We have never permitted admissions programs to work in that way, and we will not do so today.” Publicizing the intention to comply with the opinion was important for all colleges in the aftermath of the decision in summer 2023, even as each school quietly and independently considered the opinion’s effect on its admissions practices. By fall 2024, though, when schools began to report their hotly anticipated admissions demographics for the incoming class of 2028, evidence of the two paths emerged.
Elite colleges following the path of least resistance have cultivated voluntary compliance with race-neutral admissions practices following SFFA. The admissions demographics for the class of 2028 and public statements of two elite schools, Amherst and Brown, confirm significant changes to admissions practices following the issuance of the opinion. According to its own reports, Amherst’s percentage of black matriculants fell to 3% from 11% in the student body from the previous class. The percentage of Asian-American and white matriculants increased from the previous class, by two and six percent respectively. Indeed, the demographic shift at Amherst was because of SFFA. As Amherst’s admissions dean told the New York Times, “As a consequence of the Supreme Court’s decision, the incoming class is not as racially diverse as recent classes have been.”
Brown saw just as dramatic falls in black and Hispanic racial minorities as a percentage of its incoming class of 2028, with respective increases in the percentage of Asian-American and White matriculants. Brown’s admissions dean stated the Court’s ruling in SFFA was a “significant factor” affecting the demographic composition of the incoming class and that “our focus has been on complying with the law.”
Elite colleges seemingly following the path of greater resistance, however, have pressed ahead with demographic compositions in their incoming first-year classes either unchanged after SFFA or showing increased percentages of certain racial minorities. In perhaps the most surprising and notable development, Duke’s class of 2028 increased its share of black and Hispanic matriculants over the previous year, with the percentage of white and Asian-American matriculants falling. To explain the unexpected demographic figures, Duke pointed toward newly instituted policies for financial aid programs as well as recruitment efforts for low-income applicants in the Carolinas as race-neutral efforts to entice applicants.
Yale offers another telling, if somewhat mixed, example. According to the Yale Daily News, Yale’s class of 2028 featured unchanged percentages of black and Hispanic racial minorities compared to the previous admissions cycle, despite the SFFA ruling’s requirement of race-neutral admissions practices. The percentage of white matriculants rose four percent. However, the percentage of Asian-American matriculants declined six percent, at least suggesting a year-specific quirk.
Why did this split into two paths following SFFA surprise many close-watchers? In short, they expected these universities’ legal filings to reflect their genuine expectations. For example, Yale, Duke, Princeton, and Brown signed on to an amicus brief before the Court in the lead up to SFFA’s oral arguments stating that “no race-neutral alternative presently can fully replace race-conscious individualized and holistic review to obtain the diverse student body Amici have found essential to fulfilling their missions.” Amherst joined a separate amicus brief before the Court that argued, “Without the ability to take race into account in admissions, Amici would find the kind of diversity they seek nearly impossible to attain.”
The threat of litigation against these universities was real even before the release of these new admissions demographics. However, holding these universities to their word on the impossibility of building a racially diverse class without explicitly race-conscious admissions criteria compounds that threat. Students for Fair Admissions, the organization behind the initial suits against Harvard and University of North Carolina which represented Asian-American students, sent letters to Duke, Yale, and Princeton in September threatening lawsuits in the wake of their incoming classes reporting fewer Asian-American students than in the previous admissions cycle before the SFFA decision.
The letters, signed by SFFA’s chairman Edward Blum, sought an explanation about how these schools’’admissions practices could simultaneously comply with the SFFA ruling’s mandate for race-neutrality in admissions while also witnessing smaller percentages of Asian-American matriculants. This is no idle threat. Discovery in the initial Students for Fair Admissions litigation against Harvard yielded six years of undergraduate admissions data that exposed Harvard’s preferential treatment of Black and Hispanic applicants on “soft traits” such as personality, while also exposing the negative treatment of Asian American applicants on the same markers.
What comes next is unclear, but the two aforementioned paths could not be clearer. Brown and Yale, both prestigious Ivy League colleges, signed the same amicus brief claiming that race-conscious affirmative action in admissions is the only way to build student bodies that reflect the schools’ commitment to diversity. Yet each of these schools had radically different experiences during the first admissions cycle post-SFFA.
Schools following the first path, like Amherst and Brown, in their prima facie commitment to altering their admissions practices and fielding incoming classes of students in accordance with the SFFA ruling’s mandate of race-neutrality, deserve praise for what they did. These elite colleges probably feared further litigation as well, even before Donald Trump won the presidency. His incoming Education and Justice departments will likely prioritize scrutinizing the use of race by universities in many aspects. The reported efforts of schools such as Duke, which saw the percentage of black and Hispanic matriculants increase by purportedly investing resources in outreach to regional and low-income applicants, could be seen as a legally permissible tack for an institution to shape its undergraduate applicant pool without negatively impacting any individual to come before the admissions committee. Even though Duke faces scrutiny in possible litigation against SFFA, it may have evidence to point to that would explain the year-over-year findings.
But schools clearly following the second path, the path of greater resistance, are tempting litigation. Princeton and Yale, with their admissions demographics for the class of 2028 showing lower percentages of Asian-American students than in the previous cycle, are almost daring SFFA to litigate or the future Trump Education or Justice department to investigate. If what Princeton and Yale said in their amicus brief — that there is no race-neutral option in admissions for building a racially diverse undergraduate student body — is truthful, then by their own admission the racial composition of matriculants to these schools in the first cycle following SFFA cannot possibly have been achieved in compliance with the Court’s ruling. One explanation could be that Princeton and Yale believe that they, as apex institutions of the Ivy League and its peers, the elite of the elite, can practice race-conscious admissions in spirit if not in practice, to the satisfaction of their administrators and donors who prioritize group quotas as much as (if not more than) compliance with the law.
These institutions may devote resources to showing that they can steer around the Court. This action no doubt would be parallel to the broader effort among the left-leaning elite to delegitimize the current Supreme Court and its rulings that run counter to their priorities. But given the strength of the Court’s ruling in SFFA,the downside of the threat of further litigation from SFFA, and the incoming Trump administration’s expected posture against racial preference in higher education, the foolishness of following the second path and the wisdom of the first should become apparent before long.
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