September 15, 2023
In the aftermath of the Supreme Court’s dismantling of affirmative action programs, many wondered just what colleges would do to try to achieve racial diversity in their student bodies.
But it’s no mystery. Though the court explicitly warned not to “simply establish through application essays or other means the regime we hold unlawful today,” Harvard, the defendant in one of the two cases, seemed to prefer to focus on another passage of the Court’s decision: a caveat that said schools may consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Harvard’s official statement quoted the perceived loophole and responded, somewhat mischievously: “We will certainly comply with the Court’s decision.”
There is a long history of such workarounds to affirmative action bans, dating back 25 years to when the University of California was prohibited by California voters from considering race in admissions. Michigan voters forced the same on their public universities 10 years later. Both university systems, with very selective flagship schools, have taken numerous measures to attempt to diversify their campuses, according to both the amicus briefs they filed in support of Harvard and University of North Carolina (the other defendant) and to the researchers who have studied them.
UC and UM changed their admissions questions, developed outreach programs and made their admissions processes more complex and (their term) “holistic.” These methods were, to differing degrees, creative, expensive and legally fishy. They were also unsuccessful: By the schools’ own admission, no combination of these workarounds worked to enroll the number of underrepresented minority students the universities sought. Clearly, if these workarounds had worked, they would not have filed the amicus briefs in support of race-based preferences.