Image 01 Image 03

Six Ways Higher Ed Will Attempt To Evade The Supreme Court’s Affirmative Action Ruling

Six Ways Higher Ed Will Attempt To Evade The Supreme Court’s Affirmative Action Ruling

Our Op-Ed at Fox News Digital: “You probably think the Supreme Court just ended racial discrimination in university admissions, euphemistically called affirmative action, and a new day of equal treatment without regard to race or skin color has dawned. You are mostly wrong.”

I have an op-ed in at Fox News Digital, co-authored with Kemberlee Kaye, focusing on how the ground was prepared long ago to evade an anticipated Supreme Court ruling against affirmative action, Supreme Court struck down affirmative action, but that won’t stop Harvard.

The op-ed explores some familiar themes, and some new ones we have not covered yet at Legal Insurrection.

Here’s a short excerpt of the overall point:

“You probably think the Supreme Court just ended racial discrimination in university admissions, euphemistically called affirmative action, and a new day of equal treatment without regard to race or skin color has dawned.

You are mostly wrong….

In anticipation of the expected ruling, new evasive ploys were developed to implement undercover racial preferences as part of a “Diversity, Equity, and Inclusion” agenda.

The op-ed then goes on to talk about some of the work we have done at the Equal Protection Project fighting these trends, and lists six evasive moves that either already are underway or are anticipated:

1. “[A]lready schools like Harvard are suggesting they will skirt the ruling by considering applicants’ experience with race as opposed to the applicants’ race itself. These games are not surprising and have been in the works for months.”

2. “[T]he evidence of discrimination, not the discrimination itself, will be eliminated. Already, there is a trend to dispense with the standardized testing that proved the discrimination against students of Asian descent. Many universities have eliminated mandatory SAT testing, and professional schools are now toying with eliminating the LSATs and the MCATs. Without standardized testing to keep the process honest, discrimination will increasingly take place behind closed doors in higher education and elsewhere using “holistic” approaches similar to what Harvard developed in the 1920s to limit Jewish enrollment, and are now used against Asians.

3. “Offloading the discrimination onto third parties is yet another method to evade accountability. For example, we recently filed a civil rights complaint over SUNY-Albany’s participation in a Black-only fellowship program at the Albany Public Library using a private foundation grant. Similarly, we filed a complaint regarding a Providence new teacher loan forgiveness program open only to non-Whites funded by the Rhode Island Foundation, and a Missouri State University business boot camp supported by private funding that excluded only White males. Offloading discrimination is no legal excuse, but it’s become a favored maneuver.

4. “Another tactic is to disperse DEI programming in response to budget cuts or department elimination. At the University of Arkansas at Fayetteville, there is an effort to transfer DEI personnel and programs to other areas of the university. DEI will still exist, but in a different form and place. Creating moving targets will become more common.

5. “Word games are another ploy, with “first generation,” “historically underrepresented group” or “marginalized populations” serving as crude proxies for race and skin color.”

6. “Technology is yet another emerging evasion. Algorithms operating unseen will be used to manipulate pools of applicants to achieve desired quotas. And it will not be limited to academia; this has already spread to corporations and the government. We are seeing signs that even artificial intelligence is under pressure to return desired quotas. The Biden White House has jumped aboard the equity train claiming AI discrimination, thus justifying manipulation of AI parameters to achieve racial quotas.”

Of course, higher ed will think up ways we are not yet imagining. So consider this a listicle in progress.


Donations tax deductible
to the full extent allowed by law.


There’s a confusion owing to an earlier mistake – the civil rights law, which instead of restricting freedom of association only in monopoly markets, restricted freedom of association everywhere. Everywhere doesn’t have a compelling state interest and so was a mistake (masterworks cake shop).

LIkewise, private collages can do what they want, on first principles. You can go elsewhere if one doesn’t want you for whatever reason.

Mistakes with things that follow from them are tricky things, in law as well as in philosophy.

    Paula in reply to rhhardin. | July 6, 2023 at 1:37 pm

    There’s also confusion about attempting to evade vs actually evading the Supreme Court’s ruling. I believe it will be more of the latter and less of the former.

    stevewhitemd in reply to rhhardin. | July 6, 2023 at 1:45 pm

    You misstate the law and the ruling completely, but do go ahead in your beliefs.

    M Poppins in reply to rhhardin. | July 7, 2023 at 9:05 am

    The cakeshop case had nothing to do with civil rights – or hmsxlty or religion – but once again Conservatives allowed the vindictive left to frame it that way.

2smartforlibs | July 6, 2023 at 1:27 pm

Liberal Playbook: When you lose keep fighting until you win after that the fight is over.

    “Private colleges” are almost nonexistent. Except for Hillsdale, virtually every college and university accepts federal financial aid which ends your ‘private’ status.

      rhhardin in reply to Neo. | July 6, 2023 at 2:07 pm

      That’s another mistake with something following from it. To put strings on funds is a way for the government to regulate what it ought not to be able to regulate. The taxpayers put up the funds for the service that it’s supposed to acquire, not for that plus anything the regulators think of later even though it would be forbidden to require.

      drsamherman in reply to Neo. | July 9, 2023 at 7:34 am

      Have three nieces and four nephews that are or will be Hillsdale graduates. With two exceptions, all have completed medical education and the other two are in other STEM fields in graduate school. Have three younger ones we hope attend Hillsdale or Grove City College for our Christian values and full academic scholarships offered. They will earn their way, but most importantly—they will work their rear-ends off, as it should be. They will have plenty of time in middle age to earn them back and to sit on them then!

      Tel in reply to Neo. | July 12, 2023 at 3:15 pm

      YES. Federal aid means ideological mandates. Period.

stevewhitemd | July 6, 2023 at 1:47 pm

On point #3, an extension would be that not only would the funding be handled by a third party, but the third party would also handle the selection process and review (or for more obfuscation, turn that over to other parties).

    randian in reply to stevewhitemd. | July 6, 2023 at 11:37 pm

    That’s basically how universities operate for employers these days. Since employers (except in tech, which seems to have an exemption) can’t legally test employees for job-related skills they’ve outsourced the test to universities.

Colleges have continued to discriminate by race in their faculty hiring. That’s obviously illegal, but they consider settling any (rare) lawsuits to be part of the cost of doing business.

There is no reason to believe they will discontinue their racial discrimination in admissions. Besides, if they don’t require test scores, then there is no way to prove discrimination. So I expect them to say they don’t discriminate any more, but they actually will.

    CommoChief in reply to OldProf2. | July 6, 2023 at 4:48 pm

    On the test scores it isn’t that simple. Applicants will still, mostly, take the SAT/ACT. The applicant ‘backup option(s)’ of large public universities and some private universities will likely continue to require them.

    The data on applicant test scores will continue to exist, just not in an already aggregated database at a place like Harvard. It will be possible to gather data for comparison but it will be a bigger pain to do it.

    The other thing many overlook in the majority opinion is where it called attention to the narrow band of % by ‘race’ of each entering class. The CT held that this alone demonstrated that the Univ was focused on ‘numbers’. Couple that with nearly every brief submitted including the parties acknowledged that without race based AA the numbers of ‘black and hispanic’ admitted would plummet. So if no ‘plummet’ then race based AA continues by common consensus.

    Obviously the univ are going to do whatever they can think of to continue their discrimination under another name. I just don’t think it will ultimately be as successful as others. Particularly when a major part of their plan seems to be publicly announcing it will continue despite the adverse ruling and that they plan to preempt evidence gathering by ditching test score submission requirements; spoilation by elimination.

    randian in reply to OldProf2. | July 6, 2023 at 11:39 pm

    Is “not requiring” the same as “not collecting”? I expect students to submit scores even if they’re not “required”.

    Philosopher1 in reply to OldProf2. | July 7, 2023 at 9:44 am

    I’m one of those discriminated-against white male would-be faculty from the early days of “Affirmative” [sic] Action and I’d love to communicate with you about your experiences.
    [email protected]

Splendid article! Thanks!

BierceAmbrose | July 6, 2023 at 6:43 pm

You know, if for admisssions they have to evaluate how some experience or other impacted their applicants, they might actually have to get to know the kids applying, and that would be icky.(*) Thee kids might have to think about who they are, how they got there, and what they want, and we certainly don’t want that, esp for the clever ones.

They’re in the achieve-bot business, not the growing people business. What do you think selective U success signals? Excellent cogs, some equipped with some short-term relevant skills or info, depending on the “major.” It’s like labeling generic products “This bot is suitable for most apparatus.”

I do get why the edu-crats don’t want to do any of that. I, myself, much prefer dealing with well-crafted abstractions, and extracted reductions of people and events — helps with maintaining the old purity of essence.

(*) Worse, they might generate data on the appallingly short supply of actual racist events any more; or generally discrimination against protected classes. Can’t have progress on any of that — they’d have to invent some new crisis, n original sin to leverage.

JohnSmith100 | July 6, 2023 at 7:01 pm

“Particularly when a major part of their plan seems to be publicly announcing it will continue despite the adverse ruling and that they plan to preempt evidence gathering by ditching test score submission requirements; spoilation by elimination.”

This will bite them in the ass, really dumb to brag about it.

E Howard Hunt | July 7, 2023 at 1:19 am

Perhaps we can balance the situation globally by encouraging such countries as the Democratic Republic of the Congo and Zimbabwe to offer white affirmative action programs in their institutions of higher learning.

All of the above methods are defacto means of putting a finger on the admission scale. Any method that uses “institutional judgement” is prima facie evidence of some type of bias and should be forbidden.

caseoftheblues | July 7, 2023 at 6:26 am

So a white kid these days can write a truthful awful tale about how due to their race they were bullied and shamed at school, given lower grades by teachers, told to not speak in class or ignored if they tried to participate and literally told to sit in the back of the bus/class, punished for actions kids of another specific race were not. Told not welcome at certain social events and denied access to extra learning and experience enhancing opportunities due solely to race. Don’t mention the words white or black and every admission committee will assume that white kid is a minority .

Steven Brizel | July 7, 2023 at 8:29 am is one of the most invidiiious ways of having a quota-one that leaves no diswcoverable paper trail as to the process-but which can be attacked as leading to a de factor quota in fact and result

But discrimination based on race will still be illegal. When they do it, it will be obvious from the numbers. Sue them for discrimination and get their emails. Then when the emails say they intend racial discrimination, sue them on behalf of 20 or 50 or 100 more students. Repeat unit you get tired of winning.

With his comment about allowing students to submit an essay about how racism may have affected their lives, it seems to me that the Roberts offered colleges a loophole large enough to drive a truck through.

I predict that enterprising PR firms will now sell such essays to student applicants. And that AI will be enlisted to generate some of these. Welcome to this brave new world.

    If they accept me based on my personal story of growing up as a black girl, then it would be obvious racial discrimination to rescind the offer when it turns out I’m a white dude.

anninarizona | July 10, 2023 at 5:22 pm

The Arizona Department of Education, as recipient for several federal grants, has notified sub-recipients (secondary and postsecondary) in the state:

As of July 1, 2023 all federal grant funding applications in the GME system will include a section to which will satisfy the requirements of Section 427 of the General Provisions Act (GEPA) (20 U.S.C. 1228a). The referenced section is titled:

§1228a. Equity for students, teachers, and other program beneficiaries

The new requirement is a statement from the institution about steps it will take to ensure equity. I am confident that in the near future, educational institutions will be required to measure outcomes to prove equity among staff and students, and to set up remedial action plans where outcomes differ. This could affect admissions (“access”), grades, faculty and staff recruitment, and promotions. No need at all for “affirmative action.”

What they don’t acknowledge is that a degree in African-American Studies or Sociology from an elite university isn’t worth anything in the marketplace. Saying one graduated from Harvard or Yale provides some social status, but the student is in for a rude awakening when he/she tries to get a job. The student would have been much better off financially to have a degree in accounting, engineering or nursing from a HBCU or state college. In terms of achieving wealth, a liberal arts degree from a status college is actually harming blacks and Hispanics.

    Tel in reply to Roadsign. | July 12, 2023 at 3:21 pm

    What is actually harming minority students at status colleges is that they don’t graduate. These students often fall into the lower third of their freshman class, and this lower third is far more likely to drop out or fail out than the upper two thirds.