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Could an Affirmative Action Ban Be Enforced?

The Supreme Court will have a hard time making Harvard do what it doesn’t want to do.

SCOTUS Affirmative Action

Even if the Supreme Court decides it wants to end affirmative action, it may discover that it is not able to.

Oral arguments on Monday in Students for Fair Admissions v. University of North Carolina and SFFA v. Harvard raised the possibility that the court may strike down race-based affirmative action in college admissions, reversing decades of precedent going back to the Bakke case of 1978.

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If such a ruling is issued, does anyone really believe that Harvard will throw up its hands and admit a freshman class based on academic achievement alone—which, according to a 2013 Harvard Office of Institutional Research study, would mean a class that was 43 percent Asian and less than 1 percent black?

Of course not. If the court rules against it, Harvard is much more likely to fudge its admissions process behind the scenes in order to achieve roughly the same demographics it has now—15.2 percent black and 27.9 percent Asian for the class of 2026—while claiming not to be discriminating on the basis of race anymore.

The same thing happened in California. In 1996, voters banned the use of race in public education. The University of California system soon shifted to a process of so-called holistic admissions, which allowed its admissions officers to achieve affirmative action by other means.

Considering the leftward tilt of the higher education industry, it was always safe to assume that UC employees would be uninterested in enforcing the colorblind policy that voters had mandated and that they would find a way to circumvent it as long as no one was looking over their shoulder making sure they weren’t secretly giving underrepresented minorities a boost.

Harvard is more left-wing than California and on top of that believes it outranks the Supreme Court. After all, it has been around longer and arguably enjoys more prestige. The Supreme Court can order it to stop taking race into account, but how can that ban be enforced if Harvard turns around and says it has found a way to achieve the same results using (secret, proprietary) race-neutral means?

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In employment discrimination law, if your company’s workforce departs from the demographics of your area by a certain amount, then you are presumed to be discriminating. The court assumes that you didn’t get a workplace that was only 1 percent black in a city that is 40 percent black by accident. It’s not illegal to have a workforce that doesn’t reflect local demographics, but the burden of proof shifts onto the presumed discriminator.

One could imagine something similar for college admissions. Schools where the average SAT scores of admitted freshmen vary by more than 100 points by race, for example, could be presumed to be discriminating based on race.

There is only one problem with that method of enforcement. Harvard would drop standardized test scores from its admissions process entirely before it allowed itself to be trapped into admitting a freshman class that departed from its racial goals.

Conveniently, many schools including Harvard went “test optional” during the pandemic, dropping their usual requirement that applicants submit SAT or ACT scores. The University of California system went a step further, going “test blind,” meaning that admissions officers were barred from considering test scores even if students submitted them.

Standardized test scores were crucial in helping SFFA prove mathematically beyond a shadow of a doubt that Harvard discriminates against Asian and white applicants. They could play an equally important role in enforcing a judicial ban on race-based affirmative action, if that is how the Supreme Court rules.

But if schools decide to keep indefinitely the test-blind and test-optional policies they brought in for Covid-19, then it is hard to see how a ruling in SFFA’s favor could possibly be enforced.

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