What Happens if the Supreme Court Bans Racial Preferences?

The Supreme Court will soon decide the legality of racial preferences in higher education, In Students for Fair Admission Inc. v. President & Fellows of Harvard College, the plaintiffs contend that Harvard University (and the University of North Carolina, Chapel Hill, in a separate case) violated Title VI of the US Civil Right Act of 1964 that prohibits racial discrimination for institutions receiving federal funds. Given the clear statistical evidence that both schools favored blacks over Asians, and the Court’s current conservative majority, the Asian plaintiff Students for Fair Admission, will most likely prevail. Opponents of preferences are thus hoping that at long last U.S. higher education will restore meritocracy in college admissions.

Unfortunately, the likely judicial victory will change little, and conceivably make matters worse. Giving African Americans an extra boost in everything from exams for police officers to awarding government contracts to admission to elite schools is now hard-wired into our national DNA. Past efforts to curtail such preferences whether by elections or judicial decrees have fallen short, and this current effort will similarly fail.

Why this zombie-like survival when opinion polls repeatedly show public aversion to explicit racial preferences, and a half century of costly failure should motivate schools to escape this social engineering,  

Two factors explain why racial preferences survive. The first is support for preferences and the larger Diversity, Inclusion, and Equity (DIE) agenda are now sacrosanct on nearly every college campus. This is especially true at elite schools, including universities dependent on conservative state legislatures for funding. The embrace resembles a religious faith and is professed top-to-bottom from the most junior instructor to the school’s president. Those raising any doubt about this orthodoxy are persona non grata on campus or shouted down if they do express their heresies,  

The smothering orthodoxy bodes poorly for enforcing any Supreme Court ruling banning preferences. Those in charge are true believers able to dig in and pretend that nothing has happened. Recall President Andrew Jackson reaction when the Supreme Court ruled in favor of Native American rights, a decision he opposed: “John Marshall has made his decision, now let him enforce it.”  Yes, the university will be sued, but it may take years for the judicial verdict to arrive, and if the university loses, the culprits behind illegal racial preferences suffer no personal consequences.

Moreover, thanks to the principle of academic freedom, elected political leaders and major donors opposing preferences cannot force university officials to follow the law. Many college administrators will either stall or just outright lie -- “we appointed a review committee that will (eventually) meet, so progress is imminent.” Ironically, open defiance will be cheered on by the faculty and many students,

Secondly, racial discrimination is easily accomplished regardless of what the Supreme Court decides, and the academy has long experience in deceiving outsiders, even judges, and exposing this deceit is nearly impossible, And, if, exposed, obscure university functionaries will make a few minor adjustments and the cat and mouse game begins anew. In fact, most universities have anticipated legal challenges to racial preferences and possible subterfuges are already in place.

Most notably, since the Fair case involves SAT scores as smoking-gun evidence of racial discrimination, 83% of more than 1900 colleges no longer require the SAT (or the ACT) for applicants. Many graduate and professional schools meanwhile taking a similar approach to litigation-proofing their admission process by dropping exams such as the GRE, GMAT, LSAT and GMAT for admission to graduate programs.

Schools instead employ a multitude of fuzzy, often difficult to define measures to boost African American enrollment. That these substituted admission criteria, unlike SAT-like tests, have no demonstrable link to intellectual ability clearly demonstrates how intellectual excellence is subordinated to diversity,

A popular evasive tactic involves using proxies that ostensibly entirely avoid race, and thus would escape the ban on racial discrimination. Universities might set aside slots for applicants from impoverished backgrounds or residents from rundown neighborhoods. Or just automatically admit a fixed percentage from all state high school regardless of student abilities, a tactic that guarantees ample blacks given widespread school segregation. Or give extra weight to class standing and grades so unqualified blacks from dreadful segregated schools will now be deemed “academically qualified.” Particularly ingenious to a bonus for non-academic factors (often called “holistic admissions”) such as community involvement, being first in a family to attend college or a demonstrated commitment to social justice,

Such ruses provide cover to those pursuing a racial agenda on the sly and are difficult to expose as illegal. Indeed, some of these subterfuges such has helping poor immigrants attend college are alluring though those in this category such as poor kids may not be the actual beneficiaries of this policy. Yet one more example of how institutions ostensibly committed to pursuing truth currently manufacture falsehoods on an industrial scale.

These deceitful stratagems will dilute the value of a college degree. It is comparable to GM secretly passing off a Chevy as a Cadillac.  Alas, consumers eventually detect the deception, and market share dwindles,

A perspective employer will pay a premium to hire an Ivy League graduate on the assumption that he is super smart, i.e., SAT scores in the top 1%, and passed dozens of intellectually demanding courses taught by hard-nosed professors unwilling to tolerate ideological nonsense passed off as knowledge. No different from an airline passenger who can relax knowing that the pilot meets both tough FAA and airline standards and, for good measure, would not be allowed to fly if drunk, tired, or sick.

Now imagine the same perspective employer who discovers that this Ivy League job applicant skipped the SAT, owed his admission to excelling at a terrible inner-city school, and majored in Gender Studies while receiving all “A’s” from his Marxists instructors? In short, a shoddy product masquerading as a brainy Ivy Leaguer.

The “real world” can, of course, fight back and this pushback will only hurt the beneficiaries of racial preferences, Employers can give job applicants their own tests or conduct deep background checks to ferret out just how they gained admission to an elite school. Most important, however, as college degrees no longer reflect intelligence and a strong work ethic, employers fall back to the traditional strategy of relying on ethnic stereotypes. A savvy high-tech firm, for example, might just hire only Asians, Russians, Indians, and others notable for exceptional brainpower. If legally pressured to hire African Americans despite qualms about their prestigious degrees, they would exclusively be employed in non-technical dead-end positions in sales or marketing.

Eliminating objective measures to protect racial preferences will thus harm the very people that are supposed to benefit from these preferences. Picture the frustration of an ambitious, hard-working black Stanford graduate applying for a position at Intel who insists that he, unlike many of his black classmates, is the real McCoy. But he did not take the SAT or graduate from an elite high school that relied exclusively on test scores. Who would believe his claims to intellectual excellence?

Racial preferences don’t work regardless of all the tinkering, but matters will be even worse when schools try to keep them on the sly when the Supreme Court outlaws them.   

Image: Joe Ravi 

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