The Supreme Court is weighing whether to ban the use of race as an admissions criterion. If that happens, many universities will likely find ways to avoid the decision to keep the racial quotas in place now.
Although all universities deny having quotas, many have numerical “targets” or “goals” that in practice amount to quotas. These quotas are both floors and ceilings: They are floors for applicants of color and ceilings for Asian-Americans.
Some universities have begun the process of circumvention by removing objective criteria such as test scores. Without test scores, admissions officers may substitute subjective factors as race surrogates. Current Supreme Court cases allege that this is exactly what some qualified Asian American applicants are doing, who are being turned away based on vague criteria that many consider to be racially biased.
“Diversity, inclusion and equity” are the current surrogates. They are defined narrowly to emphasize race, rather than intellectual, economic, religious and other diversifying factors that are closely related to the university’s academic mission.
Under current policies at many universities, a wealthy Black applicant from a prominent family who attends a fancy prep school is favored over a first-generation Asian-American who has to work while attending public school. school. This is very accurate because there are numerical quotas that do not distinguish based on individual factors.
This is also because it is easier for admissions officers to consider something as simple race – just look at the marked box – than to evaluate each individual based on different factors. It is also easier to consider test scores and grades, but emphasizing those criteria makes it more difficult to meet racial quotas or targets.
So, the tactic is to eliminate or reduce test scores and use criteria that reflect race without clearly contradicting any Supreme Court ruling and without reducing the number of admitted applicants. minority.
Many universities have a lot of experience going back many years in such a circumvention, because they have been doing it for more than a century with Jewish and Catholic applicants. Elite schools such as Harvard, Yale, Wellesley, Stanford and Princeton refuse to use religious quotas, but everyone knows the precise numbers that are made each year.
They know how to manipulate criteria such as “attitude,” “behavior” and “suitability,” which are perceived as lacking by negative target groups, to limit the number of dislikes. They did not fool anyone, but in those days, there was no need, because the law did not protect applicants who were discriminated against.
Soon this will happen, and therefore schools will have to be more subtle and less transparent. As my former colleague Lawrence Tribe said: “Universities as intelligent as Harvard will find ways to deal with the decision without radically changing their composition. But they must be more more cunning than before.”
I leave it to the reader to interpret what the Tribe said. But it sounds to me like he’s advocating a process that leaves racial quotas or targets essentially, while being less transparent about using race as a criterion to achieve quotas.
What kind of message does it send to our future leaders, who are now studying in universities, when prominent professors and administrators try to deviate from Supreme Court decisions, even to achieve laudable goals?
This is different from the way southern universities sought to avoid desegregation decisions in the 1950s and 60s. They created subterfuges for discriminating against African American applicants. University administrators are now finding subterfuges for discriminating in favor of such applicants – at the expense of other applicants.
But though the ends are very different, the means are the same.
This is another example of goals that are believed to be desirable justifications that are not. We see that today in many contexts, as the weapon of choice in the criminal justice system to target political enemies. It is made slowly and without fingerprints.
But it eats away at constitutional protections. We who care about constitutional means as well as ends will watch out for and hold circumventors accountable, regardless of their good motives. As Justice Brandies aptly observed: “The greatest perils to liberty lie in the treacherous attacks of diligent, well-meaning but unintelligent men.”
Alan Dershowitz, professor emeritus for Harvard Law School, is the author of several books, including his latest, “The Price of Principle” and “Get Trump.” He is also the host of The Dershow at the Rumble. Follow him on Twitter @AlanDersh.
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