Supporters of affirmative action often claim that taking race or sex into account is compatible with merit-based selection. In the wake of the United State Supreme Court ban on affirmative action in college admissions, and with diversity, equity and inclusiveness schemes banned in several states, the question now arises whether promoting racial or sexual “diversity” as a component of merit remains permissible. Proponents of this type of identity-based diversity insist that they only take identity into account to add to the context of decision-making, and that diversity helps them make merit-based selections rather than being opposed to merit. For example, an article published by the Heterodox Academy argues that:
…far from diversity and inclusion undermining meritocracy, institutions of higher learning only became recognizably ‘meritocratic’ in their hiring and promotion decisions as the pool of applicants grew increasingly diverse.
This notion that diversity is compatible with merit explains the history of Supreme Court decisions sanctioning affirmative action as a justifiable goal. This line of precedent was overturned by the Supreme Court decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), a decision concerning the constitutionality of admissions schemes at Harvard and the University of North Carolina. Their affirmative action schemes were struck down as a violation of the Fourteenth Amendment equal protection clause. Yet that decision seems not to have made much of a difference to admissions processes. An article published in the New York Times by University of Chicago law professor Sonja B. Starr observes that:
Yale, Princeton and Duke, for example, reported declines in Asian American enrollment; all three also reportedly kept Black and Hispanic enrollment near the same levels as the previous admissions cycle… If it turns out that not much has changed at certain schools, critics are wondering, are those schools failing to comply with the Supreme Court’s ruling?
Bypassing the Fourteenth Amendment
The question whether statistical data can be relied on as evidence of surreptitious affirmative action is not easily answered. In the first place, alleging that a decision-maker has taken illegal factors into account is notoriously difficult to prove in the absence of a paper trail or a credible whistle-blower. Regardless of what the rules are, there is always considerable scope for discretion in decision-making. Banning decision-makers from taking particular factors into account does not necessarily stop them from taking those factors into account if they are determined to do so, but only changes how they articulate and record their decisions.
Prohibiting specified grounds of decision-making—such as a ban on taking race or sex into account—only increases the dishonesty surrounding what is already a deeply hypocritical exercise. It encourages decision-makers to shroud their true intentions in a cloak of “word salad” concerning their motives. The Governor of California states, for example, that, “In California, everyone should be able to get ahead through merit, skill, and hard work. The California Dream shouldn’t be accessible to just a lucky few, which is why we’re opening the door to higher education wide enough for everyone, fairly.” Fine words, which could mean anything. If the DEI office is relabeled as the “Merit, Skill and Hard Work” office, no one would be any the wiser—if they were, they would struggle to prove it.
In any case, as Professor Starr explains, the ban on affirmative action does not extend to all schemes designed to promote racial diversity. Many forms of taking race into account remain lawful:
The Supreme Court didn’t bar colleges from promoting racial diversity. It barred a particular means of doing so: affirmative action. When admissions committees evaluate individual applicants, they may no longer give weight to an individual’s race, but many race-neutral policies also affect racial diversity, and those policies remain lawful. For example, since socioeconomic status is racially correlated, giving an admissions boost to poor applicants or eliminating legacy preferences can improve racial diversity.
For these reasons, many who declare that affirmative action is now “illegal” are merely engaging in wishful thinking that there will be no more race-craft. Affirmative action may be “illegal,” but it does not follow that all diversity schemes are therefore illegal. California, for example, has banned legacy admissions in a bid to reduce the numbers of white students so that, apparently, “In California, everyone should be able to get ahead through merit, skill, and hard work.” Professor Starr observes that,
If schools like Yale, Duke and Princeton are using such policies to ensure racial diversity, that wouldn’t run afoul of the Supreme Court’s decision. The court never suggested that aiming for racial diversity was unconstitutional—to the contrary, it described many efforts to do so as “commendable” and “worthy.” The court even said that colleges do not have to be entirely blind to an applicant’s race, so long as the way they consider it is tied to the individual’s qualifications, rather than simply group membership.
In other words, while colleges can no longer simply take race into account, they would nevertheless remain well within the bounds of the Fourteenth Amendment by making some effort to link race to the person’s qualities. This is not a difficult hurdle to surmount.
Illegal, but legal
Although the Supreme Court has struck down the notion of racial preferences in college admissions, it seems, by the same ruling, to have created a deeply unsatisfactory state of affairs where racial preferences are illegal, but, at the same time, potentially legal depending on why and how the race of the candidate has been taken into account. A typical summary of the applicable principles observes that:
Writing for the majority, Chief Justice John Roberts explained that college admissions programs can consider race merely to allow an applicant to explain how their race influenced their character in a way that would have a concrete effect on the university. But a student “must be treated based on his or her experiences as an individual—not on the basis of race,” Roberts wrote. (emphasis added)
To add to the obfuscation, Justice Roberts emphasized that while it is permissible to “consider race” in allowing students to explain how their race influenced them, “universities may not simply establish through application essays or other means the regime we hold unlawful today.” In other words, taking into account the student’s explanation of race (which is still legal) must not be substituted for “taking race as a factor” which is now illegal. While Justice Roberts warned universities against attempts to bypass the ban on treating race as a factor in admissions, he also stated that colleges can continue to link race to an evaluation of the student’s qualities such as “character and determination” or “unique ability.” He gave some examples:
A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experience as an individual—not on the basis of race.
We can, therefore, conclude that in general it is illegal to take race into account in admissions, but whether particular diversity schemes are likely to be struck down as illegal is less easy to ascertain. Thus, for example, the New Jersey Bar states that, “Despite its reversal on affirmative action policies for college admission, the Court did not totally dismiss race as a factor for applicants.”
The shadow of civil rights
To add to the general confusion surrounding the lawfulness of affirmative action, the Equal Employment Opportunities Commission emphasizes that the ruling does not apply to its general goal of civil rights enforcement and promotion of DEI. The EEOC responded to the Supreme Court ban on affirmative action with predictable dismay: “Today’s Supreme Court decision effectively turns away from decades of precedent and will undoubtedly hamper the efforts of some colleges and universities to ensure diverse student bodies.” The EEOC then advised employers that they are not bound by the decision:
However, the decision [in Students for Fair Admissions] does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.
The only escape from this morass is to revert to the classical liberal principles of contractual freedom and freedom of association—no special preferences based on race, no unenforceable bans on decision-makers taking into account whatever they may wish to consider, and no forcing people to pay taxes to support educational schemes which, for whatever reason, they may not wish to participate in. The root of the race-craft industry—the Civil Rights Act—must be repealed. As Lew Rockwell has observed:
You cannot abolish affirmative action and quotas and still enforce the Civil Rights Act. Racial preferences are bound up with antidiscrimination law—logically, politically, historically, and jurisprudentially… Abolish all affirmative action, and colleges will still have to recruit the intellectually challenged in order to avoid the appearance of discrimination.
