Universities Circumventing, Even Violating, Ban on Racial Preferences; Would Lie Under Oath, Ferret Out Race, Gerrymander, Use Diversity Claims, etc.
Racial Preferences In Admissions
WASHINGTON, D.C. (July 10, 2023) - Although the U.S. Supreme Court has in no uncertain terms, and by an overwhelming majority, banned any consideration of race in awarding admission to universities, many are violating or circumventing - or at least actively planning to circumvent - that ruling through various schemes to continue giving preference to a few privileged racial minorities, charges public interest law professor John Banzhaf.
Indeed, in one shocking situation, the dean of a major law school is openly bragging in a video on the Internet about how he had done so for many years in a state where such racial preferences have long been illegal.
Indeed, he even goes so far as to promise his students in a classroom lecture that he would commit perjury to protect his scheme if necessary; see:
Berkeley Law School dean Erwin Chemerinsky explains how he has secretly enacted a policy of racial discrimination in faculty hiring—which is illegal in California.
"If I'm ever deposed, I'm going to deny I said this to you."
THE HILL reports that: "Already some universities are beginning the process of circumvention by eliminating objective criteria such as test scores . . . So, the tactic is to eliminate or minimize test scores and to employ criteria that mirror race without explicitly running afoul of any Supreme Court ruling and without reducing the number of admitted minority applicants."
As Harvard law professor Lawrence Tribe explained: “Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition. But they will have to be more subtle than they have been thus far.” And as his former Harvard law school colleague Alan Dershowitz explains, Professor Tribe "is advocating a process that leaves the racial quotas or targets essentially intact, while being less transparent about employing race as a criterion to achieve those quotas."
Indeed, it has been revealed that Harvard has already been secretly uncovering the race of applicants, even when they deliberately choose not reveal it, and do not want it considered in evaluating their application.
In the affirmative action litigation, Harvard was forced to admit: "If a student does not identify his or her race, the [Harvard] Admissions Office has alternative ways to determine the student's race through other information the Common Application requires, including the student's last name, citizenship status, birthplace, language proficiency, country of birth of the student's parents, and the parents' last names and former last names. . . . The Admissions Office can also do outside research through social media to determine an applicant's race."
Thus simply "banning the box" in which applicants in the past would check off their race is not enough to prevent unconstitutional violations, since racial identify can easily be obtained by other means. For example, as the majority opinion concedes, "nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise."
So, since any such discussion "of how race affected his or her life" would naturally have to reveal the applicant's race, universities can simply put aside for special consideration (e.g., preference) any applications with essays including claims like: "As a African American, I have have suffered discrimination . ." Indeed, any student hoping for a preference based upon race will probably include just such a statement, suggests Banzhaf.
This is not just conjecture, he notes. As a concrete example, Harvard "says it will try to exploit a loophole in the court’s ruling. Specifically, Harvard hopes to rely on the portion of the Court’s decision that says colleges may still consider how race has affected an applicant’s life through 'discrimination, inspiration, or otherwise.'” LINK
As another law professor candidly admitted in To circumvent Supreme Court affirmative action ban, Harvard will shift to diversity statements: "Harvard will replace check-the-box racial self-identification with a diversity statement . . . In other words, racial quotas will persist, but with greater investment of resources in making them subtle."
Circumvent The Court's Ruling
Bloomberg reports other ways universities plan to circumvent the Court's clear ruling:
"Many universities will no doubt try to work around the Court’s decision. Indeed, a legion of academic bureaucrats has been drawing up ideas for doing just this for months, if not years. These include replacing standardized tests with subjective measures — which will make it impossible for Asian students, who were principal plaintiffs in the case against Harvard University — to prove that they are being discriminated against. For example, students might be asked how they would contribute to campus diversity."
If asking students "how they would contribute to campus diversity" isn't enough to permit universities to dole out racial preferences, the Financial Times notes that, as an alternative, some schools simply give preference for students who apply from certain postal zip codes; presumably those which have a disproportionately high percentage of Black residents. Such racial gerrymandering would be condemned in virtually all other contexts, argues Banzhaf.
Similarly, the Chronicle of Higher Education suggests - as they do in France where consideration of race in college admission is also prohibited - utilizing "class-based affirmative action using sophisticated indicators for class that correlate with race intentionally"; in other words, using race proxies to provide advantages in admission based upon race without using race directly and explicitly.
That's like reacting to a decision which ruled that offering a discount, but only to women, constitutes illegal discrimination, to a discount to anyone who wears a skirt or dress - an actual case in the D.C. area where this "proxy" was found to be an illegal attempt to continue illegally discriminating on the basis of sex using a proxy, says Banzhaf.
However admission committees at selective American universities manage to obtain information about the race of applicants, they may continue to give considerable preference - of the type found and condemned as unconstitutional at Harvard and at the University of North Carolina - underhandedly with a wink and a nod, but not saying anything out loud or putting it down on paper, as Dean Chemerinsky admits they have done illegally in California for years.
To deter and undercover such unconstitutional violations, U.S. Senator JD Vance [R-Ohio] has demanded in letters that "all eight Ivy League colleges and universities, as well as Ohio’s Oberlin and Kenyon colleges, [to] preserve records for a congressional probe of their efforts to undermine last week’s Supreme Court decision overturning race-based admissions." LINK
In his letter the Senator "express[ed] concern” about their institutions’ “openly defiant and potentially unlawful reaction” to the decision that forbade race-based college admissions preferences, and reactions that “seemed to announce an intention to circumvent it.”
But, suggests Banzhaf, wily university bureaucrats will try not allow deliberate constitutional violations to be reflected in documents, including emails or memos of meetings or even telephone conversations.
If any do exist, they may somehow become "lost" or "inadvertently deleted" before they can be forwarded to Vance in response to his demand. Moreover, university officials probably would not be very forthcoming in any future "congressional probe" and/or hearing of actions taken surreptitiously to deliberately and illegally violate the Constitution.
Thus there would appear to be a compelling need for additional reliable sources with insider information about violations.
But since so many students, university staff, and even faculty are already paranoid about even openly expressing controversial opinions or for appearing to be insufficiently “collegial,” they are very unlikely to come forward about any constitutional violations they become privy to without some method of providing information (including incriminating documents) to the senator - and/or to a trusted third-party non-profit organization - using a method which is completely anonymous, says Banzhaf.
The activist law professor also suggests that seeking such information from current students could be especially important, even though - having already been admitted - they may not themselves be the victims of illegal discrimination in the admissions process.
Prior to the Supreme Court's ruling, admission officials could simply segregate applications from students who had checked the box "African American" or "Hispanic/Latino" and provide them with special consideration.
Now, however, since this will no longer be possible, the admissions offices will have to hire many more students to help read through the applications; a must if they wish to argue with a straight face that they are making fair and unbiased heuristic admission decisions based upon a careful reading of each application.
So current students could be an important source of information (including of incriminating documents) about constitutional violations, especially if there were an incentive for them to take the risk of making such reports, and strong guarantees of anonymity if they do.
While Senator Vance himself may not be in position to offer a significant financial incentive for students - as well as for university staff and faculty - who might thereby be encouraged to become whistle blowers, organizations and wealthy individuals concerned about protecting constitutional rights might be able to provide such monetary encouragement.
For students forced to toil for very modest pay in admissions offices, performing the boring task of reading through hundreds of applications and student essays, even a modest $5000 award for information leading to uncovering a deliberate attempt to subvert the constitution - which might even give rise to a lawsuit and a monetary award - could provide a very powerful incentive to potential campus whistle blowers, suggests Professor Banzhaf.