Universities Are Evading Supreme Court's Anti-Affirmative Action Ruling, Congress Hears

Schools are dropping standardized tests to buck the decision and allow minority students in who are academically unqualified, an expert said.
Universities Are Evading Supreme Court's Anti-Affirmative Action Ruling, Congress Hears
U.S. Supreme Court is seen at sunrise in Washington on July 31, 2023. (Madalina Vasiliu/The Epoch Times)
Matthew Vadum

Colleges and universities across the country are evading a recent Supreme Court ruling that struck down the use of racially discriminatory admissions policies in higher education, a congressional panel heard.

At the same time, the schools are backing away from standardized testing in order to admit academically unqualified minority applicants, a legal expert told The Epoch Times.

The hearing took place on Sept. 28 before the Higher Education and Workforce Development Subcommittee of the House Education and Workforce Committee, three months after the Supreme Court’s landmark ruling.

The June 29 decision ended the use of race-conscious admissions, a longtime goal of conservatives, but did not apply to military academies.

The case was actually two separate appeals: Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College, and SFFA v. University of North Carolina (UNC).

In the majority opinion, Chief Justice John Roberts wrote that for too long, universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

“Our constitutional history does not tolerate that choice,” he wrote. The Harvard and UNC admissions programs “cannot be reconciled with the guarantees of the Equal Protection Clause.”

“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints,” he wrote.

Justice Clarence Thomas, who had long pressed to end affirmative action, wrote a 58-page opinion concurring with the majority.

The ruling “sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

 Chief Justice John Roberts, right, with Justice Clarence Thomas while sitting for the high court's official portrait in Washington on Oct. 7, 2022. (Alex Wong/Getty Images)
Chief Justice John Roberts, right, with Justice Clarence Thomas while sitting for the high court's official portrait in Washington on Oct. 7, 2022. (Alex Wong/Getty Images)

In her dissent, Justice Sonia Sotomayor wrote that the majority decision “rolls back decades of precedent and momentous progress.”

“In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Attorney J. Christian Adams, a member of the U.S. Commission on Civil Rights, said separately that institutions of higher learning “were already implementing programs to get around any future ruling” before the court ruled in the SFFA cases.

Mr. Adams is also president of the Public Interest Legal Foundation, an electoral integrity group, and was previously a civil rights attorney at the U.S. Department of Justice.

“And one of the things they did was they made test scores optional, where you don't have to submit an SAT, or an ACT test to the college,” he said in an interview.

“The reason that that gets around any restrictions on race preferences is because it’s not a race preference, first of all, but it has the effect of getting larger numbers of blacks and Hispanics in the college who could not otherwise get in.”

“The people who support affirmative action don't like admission tests, because admission tests tend to impair the ability of black applicants to get into college,” Mr. Adams said.

“So what is the answer to that? Get rid of the admissions test. And that's why most colleges now are not requiring admissions tests. And students who do submit their admissions tests who aren't at the very tippy top are not getting into college.”

At the hearing, Rep. Burgess Owens (R-Utah), the subcommittee chairman, hailed the court’s decision, which he described as “a major win for equal opportunity and for meritocracy, the two principles essential for the attainment of the American dream.”

“Students across America, whether black, white, Hispanic, Asian, or other, can now realize their potential without fear of overt racial discrimination or subtle bigotry.”

But Mr. Owens said that some schools are already attempting to undermine the landmark ruling.

“There remain administrators who have expressed their attempt to selectively ignore both the substance and the spirit of the Supreme Court ruling. America should never accept the subversive attempts to preserve race-based admissions.”

 Rep. Burgess Owens, (R-Utah), speaks during a Senate Judiciary Committee hearing on voting rights on Capitol Hill in Washington on April 20, 2021. (Bill Clark/AFP via Getty Images)
Rep. Burgess Owens, (R-Utah), speaks during a Senate Judiciary Committee hearing on voting rights on Capitol Hill in Washington on April 20, 2021. (Bill Clark/AFP via Getty Images)

'Universities Need to be Held to Account'

Witness Alison Somin, a legal fellow at the Pacific Legal Foundation, a national public interest law firm, said schools are already trying to go around the months-old court ruling.

“The early evidence suggested evasion is going to be rampant,” Ms. Somin said.

“We see statements of intention to defy the ruling from the deans of major law schools, from presidents of universities, and even statements from state governors telling universities in their state that they can safely ignore the decision. If these evasions go unchecked, Students for Fair Admissions’s guarantees of equal treatment will ring hollow.”

The U.S. Department of Education is making the problem worse, she said.

Although the agency “has an important role to play in making sure that the civil rights laws are followed, unfortunately, the ‘Frequently Asked Questions’ document that the Office for Civil Rights issued following the Students for Fair Admissions decision indicates they're not going to do that,” she said.

“It basically ignores the larger looming problem of proxy discrimination, and essentially tells universities that whatever they want to do is fine, as long as they're not too open about it. That's not right. That's not the law. And these universities need to be held to account to realize the core American promise that individuals should be treated as individuals and not on the basis of their race.”

Rep. Glenn Grothman (R-Wisc.) questioned the “drive for so-called diversity,” which he said was a “tremendous obsession with where one's ancestors come from.”

Ms. Somin replied: “I think you've put your finger on something very important, which is that universities have tended to emphasize skin color or ethnic diversity over true diversity of thought.”

“I mean, that's what I don't understand,” Mr. Grothman said.

“If I have a Peruvian grandmother, [who] for all I know died before I was born, the whole edifice is built on the idea that, therefore, I am going to bring a different viewpoint or something to the university,” he said.

Ms. Somin said she agreed that it was “very concerning that many universities seem to have relied on crude stereotypes, rather than looking at true individuality and at the full depth of an individual's experience and what they cast as diversity.”

“Universities should care about individuals and individuality rather than reducing students to their ethnic or racial identities. I am glad the Supreme Court ruled the way it did so that we can get back to a focus on treating individuals as individuals.”

Supporting 'Race-Conscious Admissions'

Witness David Hinojosa, director of the Education Opportunities Project of the Lawyers’ Committee for Civil Rights Under Law, argued on behalf of a group of pro-affirmative action students in the UNC case at the Supreme Court almost a year ago.

Mr. Hinojosa’s clients lost and he criticized the Supreme Court’s decision, along with people who oppose affirmative action.

“We cannot allow others to use the Supreme Court’s tortured history of the Equal Protection Clause and the promise of Brown v. Board to take those seats away from other well-deserving students. Because let's be real—that’s what many supporters of the decision want to do, not just in education but all facets of life, where built-in, unearned, and bought-up privileges for the few determine who has opportunity and who does not.”

Brown v. Board of Education of Topeka was a 1954 Supreme Court decision that held that state laws enforcing racial segregation in public schools were unconstitutional.

Rep. Pramila Jayapal (D-Wash.) also lamented the Supreme Court’s ruling.

“Race-conscious admissions was a critical tool for diversifying classrooms for reducing racial bias and addressing racial disparities in enrollment for students of color. Right-wing activists unfortunately, waged a decades-long challenge to the use of race, and unfortunately, they succeeded when the Supreme Court struck down this tool for achieving diverse classrooms by ending race-conscious admissions policies.”

“There may not be a policy that can help achieve racial diversity at the same level that race-conscious admissions has, but why are policies that eliminate reliance on testing helpful in diversifying student bodies?” she said.

 Rep. Pramila Jayapal (D-Wash.) in Washington on April 28, 2022. (Kevin Dietsch/Getty Images)
Rep. Pramila Jayapal (D-Wash.) in Washington on April 28, 2022. (Kevin Dietsch/Getty Images)

Mr. Hinojosa replied, suggesting that standardized testing was racially discriminatory in nature.

The tests are “incredibly biased instruments” that “were started way back based on eugenic science” which has been “dismissed by the scientific community,” he said.

“They’re poor predictors of college success and college readiness.”

“Your test score is predicted [sic] based on your zip code, and the quality of education that you've received, or your socio-economic status, I should say, rather than any other quality that an applicant would cover.”

Rep. Bobby Scott (D-Va.), the ranking member on the full committee, said the court ruling didn’t eliminate the need to pursue racial diversity on campus.

“Our nation still has a compelling interest in fostering racially diverse campuses and the Supreme Court ruling in the Harvard, UNC cases does not change that.”

“Race-conscious admissions procedures” benefitted blacks, Hispanics, and Asian Americans and “actually leveled the playing field and counterbalanced discriminatory admissions factors that are otherwise in place such as standardized tests and legacy admissions.”