To circumvent Supreme Court affirmative action ban, Harvard will shift to diversity statements (Michael Simkovic)

The Supreme Court's recent ruling that Harvard and UNC's affirmative action programs violate the equal protection clause has been described by many as a blow to affirmative action.  Brian Leiter has a summary here.  Additional coverage is available here.

Harvard almost immediately issue a written statement and a video message to the effect that it intends to continue to use race and ethnicity as factors in admissions even after the Supreme Court's ruling.  Harvard pointed to language in the opinion that: "The Court also ruled that colleges and universities may consider in admissions decisions 'an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.'  We will certainly comply with the Court’s decision....We affirm that...diversity and difference are essential.... No part of what makes us who we are could ever be irrelevant... Harvard will continue to be a ...community whose members come from all walks of life...Nothing today has changed that.”

In other words, Harvard will replace check-the-box racial self-identification with a diversity statement.  This will drive up the cost to applicants--many of whom will hire consultants to help them draft these statements--and drive up the cost to Harvard of processing applications by forcing it to hire more staff to read, score, and consider these diversity statements.  From Harvard's perspective, other than this increase in cost, ideally little will change in terms of the weight Harvard accords to race and ethnicity in its admissions process. Harvard's entering classes will have the same pre-determined racial and ethnic demographics as they would have had without the Supreme Court's decision.  In other words, racial quotas will persist, but with greater investment of resources in making them subtle.

In taking this stance, Harvard is following in the footsteps of the University of California system.  When California--a majority minority state with an overwhelming Democratic majority--voted to ban racial preferences in public university admissions in a voter referendum, the UC system opted to continue racial preferences indirectly through mandatory diversity statements.  California recently reaffirmed its ban on racial preferences in public education in a voter referendum, during an election that again saw Democratic candidates win an overwhelming majority of seats.

Racial preferences in university admissions are intensely unpopular with the voting public when they are described in explicit language without any use of euphemism, even among Democratic voters and even among minorities such as Hispanics and Asians. (According to a Pew Survey from 2019, most Blacks were also against racial preferences in university admissions at the time; more recent surveys suggest this may have changed). Americans generally believe that disparities in financial resources are a much more important source of disadvantage than race or ethnicity.

The unpopularity of racial preference programs--and their association with the Democratic party--is probably why Republican Presidents, Republican Congresses, and a majority Republican-appointed Supreme Court have all repeatedly declined to effectively ban affirmative action when they've had the opportunity to do so.  

With a wink and a nod, the Supreme Court told universities they could continue racial preferences in admissions--as long as they are willing to thread the needle of its 230+ page decision and face lawsuits for inevitable missteps.*  Racial preferences lose elections for Democrats. Race wins elections for Republicans.  A Republican-appointed Supreme Court will never comprehensively or effectively ban affirmative action because doing so would be handing electoral victory to the Democrats for the foreseeable future.

When some universities take the bait and continue racial preferences, or react by mandating classes about race--as many will--they'll be showing that they are culturally out of touch with the American voting public.  Moreover, universities' reactions risk creating campaign issues that will help Republicans win their next electoral victory.  Judging from recent Republican legislative proposals, an ascendant Republicans party would slash food stamps and Pell Grants and other programs that help the poor and middle class and--unlike racial preferences--actually require budgetary outlays and therefore taxation.

  

* University general counsel offices generally do not pay in-house attorneys as well as large corporations in many other industries.  The quality of legal decision making may suffer as a result.  For example, at the University of Southern California--one of the largest private universities in the United States--no one apparently considered options for partitioning student health services into a separate legal entity to limit the impact of future lawsuits on the rest of the university.  USC recently settled lawsuits related to problems at student health services for close to $1 billion, according to news reports.  Even for USC, this is a lot of money.  Moreover, some of the University's insurers have denied the university's claims for reimbursement.  Given the quality of legal offices at even the best funded universities, rolling the dice with litigation could be a costly decision.