Below is my column in the Hill on the opposition to the Supreme Court’s opinion declaring the use of race in admissions to be unconstitutional. The defiance expressed to the decision (and view of the majority of the public) could trigger a nuclear option in states that want to end decades of conflicts over the race-based admissions. It would be a major blow to the autonomy of universities, but administrators and faculty appear undeterred by the possibility of state intervention.
Here is the column:
“Eliminating racial discrimination means eliminating all of it.” With those words, Chief Justice John Roberts wrote the historic decision to ban the use of race in college and university admissions.
Long before the opinion was released, universities were already sensing that the use of race in admissions was coming to an end after decades of intense litigation. Some quietly formed teams to plan how they might evade such a ruling and continue to use race in admissions.
Under the preexisting standards for the use of race in admissions, schools spent decades assuring the courts that race was not being weighed heavily and had only marginal effects on admissions. However, after the ruling, schools declared that Black and Latino admissions would “plummet” if they were no longer permitted to use race as a criterion for admission.
Those arguments have deepened the distrust over how universities will adjust to the ruling in seeking to preserve current diversity numbers.
Berkeley Law Dean Erwin Chemerinsky, who previously called the conservative justices “partisan hacks,” was recently criticized for suggesting that he might be willing to lie about the weight given to race at this school. He told students: “I’ll give you an example from our law school, but if ever I’m deposed, I’m going to deny I said this to you. When we do faculty hiring, we’re quite conscious that diversity is important to us, and we say diversity is important, it’s fine to say that.”
Although Chemerinsky later insisted that he had been joking, the comments highlighted a concern that schools would be less than honest in manipulating reviews to achieve diversity goals.
Indeed, one of the earliest moves to blunt any constitutional ruling may have come from the former head of the California university system, Janet Napolitano. After citizens of one of the most liberal states in the union voted in 2020 to block affirmative action in education and hiring, Napolitano moved to drop the primary method used to expose racial preferences: standardized tests.
Before that, she had assembled a handpicked task force in 2019 to study the issue. But the task force found the opposite of what it had been designed to find. Standardized testing, it turned out, proved to be the single most accurate indicator of college performance, including for non-white students. Napolitano overrode those conclusions and ended the use of the standardized college tests anyway.
After this recent ruling, many universities denounced the Supreme Court and pledged to “reimagine” admissions. Medical schools are being encouraged “to pivot” in order to continue to reach diversity goals for entering classes. More schools are moving to dump objective standardized tests (or make them optional) in favor of more subjective scoring in order to shield racial criteria for admissions.
That has led many citizens to ask what can be done. After all, most people oppose such use of race in admissions. Even liberal states such as California and Michigan have made it unlawful by referendum. Now, the Supreme Court has declared it unconstitutional as well. Yet most believe the fight will continue as schools creatively construct new pathways to accommodate racial discrimination.
In the academic echo chamber, these discussions are playing well with their audiences, but less so with the public. Worse yet, they assume that there is not much that can be done to thwart their efforts. They are wrong.
There is a nuclear option. This is for states to take over admissions in public higher education.
States could require the use of standardized testing and codify admissions criteria, including requiring transparency and annual certifications from school officials.
For example, a state could publish an admission grid, wherein applicants are placed into “bands” based on the combination of their standardized scores and grade point averages. They could then allow for other factors to be given a set amount of weight to adjust the ranking in each band based on extracurricular or individual accomplishments. This could be limited to, for example, a 10 or 15 percent step-up from the baseline score in ranking.
Offers of admission would then be based on the ranking, made on a rolling basis downward to fill available seats.
There are obvious costs to such a system. Some students do not perform well on standardized tests. Others have particularly impressive background stories. It is possible to create a percentage of acceptances for such exceptional cases. However, they would be limited in number and require annual reporting on the specific exceptional findings. Laws could also limit the degree to which exceptional criteria can be used to increase a ranking by more than one or two bands.
Some schools would also likely want to allow greater differentials for one category of applicants: athletes. Some schools raise massive amounts of revenue through sporting programs such as football and basketball. They will likely insist on continuing to recruit students largely on the basis of their athletic rather than academic achievements. That is a long-standing debate, but the use of transparent, objective criteria will expose just how much of a “bump” such athletic ability is allowed in admissions.
When it comes to students, the state can assert an interest in protecting them from political, racial, or other bias. Taxpayers fund these schools to maintain higher education opportunities in their states. Academics often treat the taxpayers as an ATM with no voice on what their money is buying, even while creating openly hostile environments for conservative and libertarian viewpoints.
The choice remains with these schools as they openly plan new ways of weighing race. The frank discussion suggests that citizens are mere captive audiences, and that neither public polling nor Supreme Court precedent will change the policies. However, citizens can break the glass and take greater control over admissions if this defiance continues.
Moreover, such laws can expose long-concealed systems of bias in selection. Unlike many schools, like Harvard, that spent years withholding data, state schools could become completely transparent on the weight they have been giving to various criteria.
A state-mandated system would come at some cost. It would limit the value of non-academic achievements, though even that can be adjusted to allow variation, so long as exceptional “bumps” are recorded and disclosed.
A nuclear option could also face complications in some states, where school charters or statutes give schools control over admissions. However, while some states have dedicated funds that go to schools, most can decide how much money will go to higher education. Taxpayers are not a captive audience. They can condition funding on the adherence to objective and transparent admissions.
I hope that it does not come to such a showdown. But these defiant statements from administrators and academics just may trigger an equal determination in states to put an end to the use of race as an admissions criterion.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Twitter: @jonathanturley