It's no secret that the vast majority of the people who operate U.S. colleges and universities are unhappy about the Supreme Court's June 29 decisions that the use of race in admissions decisions at Harvard and the University of North Carolina violated the 14th Amendment's equal protection guarantees and Title VI of the 1964 Civil Rights Act, which forbids recipients of federal funds to discriminate “on the ground of race, color, or national origin.”
The official reaction of the country's top-tier institutions of higher learning - the ones that typically employ racial preferences (in contrast to their less-selective counterparts that admit almost all applicants of any race) - was dismay.
Within hours of the release of the court's 6–3 ruling in Students for Fair Admissions v. Harvard, incoming Harvard President Claudine Gay issued a video message.
Its tone wasn't outright defiance of the Supreme Court's ruling, but it evidenced a distinct resolve to work around it.
“For nearly nine years, Harvard vigorously defended our admissions process and our belief that we all benefit from learning, living, and working alongside people of different backgrounds and experiences," Ms. Gay said.
"We will comply with the court's decision, but it does not change our values. We continue to believe—deeply—that a thriving, diverse intellectual community is essential to academic excellence and critical to shaping the next generation of leaders."
The word “diverse” is, of course, code for achieving levels of ethnic-minority representation (typically blacks, Latinos, and Native Americans) that progressives find acceptable, whether or not the applicants' academic records and SAT scores match those of other groups such as Asians and whites.
Other elite universities have followed Harvard's lead.
Columbia University spokesman Ben Chang said, “Diversity is a positive force across every dimension of Columbia, and we can and must find a durable and meaningful path to preserve it.”
Ron Daniels, president of Johns Hopkins University, issued a statement declaring:
“In the coming days, we will closely examine the court's decisions and assess its implications for our admissions programs. Over the last several months, we have been reviewing the approaches taken by universities in states where a referendum or statute has restricted the use of race as one of many factors in a holistic admissions process.”
So the strategizing - aimed at maintaining pre-Students levels of black and Latino enrollments - has clearly begun.
The most obvious of the possible “approaches” is the application essay, which allows prospective students to reveal their race, among other things about themselves. Chief Justice John Roberts, author of the majority opinion in Students, seemed to shine a green light (pdf): “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.”
Although Justice Roberts warned universities to not use the essays to bypass the Supreme Court's ruling (“the student must be treated based on his or her experiences as an individual—not on the basis of race”), several institutions have already established “overcome adversity” as a proxy for race.
The University of California–Davis's medical school, for example, gives preference to students asserting a “disadvantaged” background.
The upshot: A full 84 percent of Davis's medical school entering class for this fall claimed economic and social disadvantages growing up (pdf).
The result is an entering class that is 14 percent black and 30 percent Latino (blacks and Latinos make up 6 percent and 39 percent of California's general population, respectively). Some 20 other colleges and universities have inquired about Davis's complex—and so far secret—“adversity score” methodology, according to a New York Times report.
A more subtle tactic is likely to be dropping requirements that prospective students submit their SAT or ACT scores. Standardized test scores offer a clear metric for determining a student's ability to perform college or graduate-level work, but they also provide evidence of racial bias when institutions reject higher-scoring applicants from one ethnic group in favor of lower-scoring applicants from another. Some 80 percent of colleges and universities—including all eight Ivy League campuses and other prestigious institutions such as Stanford and Rice—have already made SAT and ACT results optional in their admissions processes. That makes admissions procedures more opaque and thus more difficult for courts to scrutinize in lawsuits challenging admissions procedures on racial grounds.
Finally, there's the ingenious tactic for getting around racial preferences proffered in an amicus curiae brief filed in Students by more than 50 Catholic colleges led by the Jesuit-run Georgetown University. The colleges averred that their religious mission to train leaders devoted to the common good gave them a right, protected by the First Amendment's religious freedom guarantees, to consider race and ethnicity in their admissions practices, asserting that “as a crucial component of their efforts, Catholic colleges and universities strive to admit and educate racially diverse student bodies.”
That First Amendment argument made little impression on the Supreme Court, even on its three dissenters who would have upheld racial preferences. But it has gained new life, at least according to some law school professors.
The Supreme Court, in another 6–3 decision, ruled on June 30 that the First Amendment protected Christian web designer Lorie Smith's refusal to create wedding websites for same-sex couples on the grounds that she would be forced to express support for views contrary to her religious beliefs. The ruling in 303 Creative LLC v. Elenis carved out an exemption from a Colorado law barring discrimination on the basis of sexual orientation. It continued a recent line of Supreme Court decisions upholding the right of individuals, businesses, and religious communities to not comply with laws that interfere with their beliefs about such issues as homosexual conduct, abortion, and birth control.
“The admissions decisions of religious universities to create diverse student bodies are expressive of those schools’ values in ways that would seem to merit the same kind of protection from state interference the court has granted in cases like 303 Creative,” Kent Greenfield, a constitutional law professor at Boston College, and Eduardo Peñalver, president of Seattle University (both Catholic institutions), wrote in a July 19 article for The Hill headlined “How the First Amendment Can Save Affirmative Action.”
Should First Amendment arguments such as these prevail in court, we might see secular universities such as Harvard suddenly rediscovering their 17th-century roots as training grounds for religious ministers.
At the very least, they demonstrate the extent to which institutions are willing to go - and the complex, even contorted strategies they plan to use - to preserve consideration of race in admissions policies even after the Supreme Court has pretty much ruled out that practice.