• Ahead of the Supreme Court’s decision in a pair of cases dealing with affirmative action, universities are looking for ways to maintain racial quotas without explicitly using racial preferences in the admissions process.
• Schools have floated ideas such as making testing optional, giving greater weight to students’ socio-economic backgrounds and recruiting based on geographic area.
• “Some universities will just keep doing what they do until they get sued, especially because there’s not much of a likelihood that any individual university will get sued, unless they announce publicly that they are refusing to comply with a Supreme Court’s opinion,” George Mason University law professor David Bernstein said.

Universities are searching for ways to maintain racial quotas ahead of a likely Supreme Court decision blocking affirmative action.

With the Supreme Court soon to issue a ruling in a pair of cases questioning the constitutionality of affirmative action, which multiple justices appeared ready to rule against during oral arguments, universities are developing plans to maintain the current racial composition of their student bodies without explicitly using racial preferences in the admissions process. Schools have floated ideas such as making testing optional, giving greater weight to students’ socio-economic backgrounds and recruiting based on geographic area.

“While a Supreme Court strike-down of affirmative action would be an important step in restoring the principles of color-blindness and merit in higher education, I don’t think it will be the end of race-conscious admissions,” Renu Mukherjee, Paulson Policy Analyst at the Manhattan Institute, told the Daily Caller News Foundation. “Many colleges are motivated to continue discriminating on the basis of race, even if that means circumventing a Supreme Court decision.”

Universities will look for ways to be “more subtle,” as Laurence H. Tribe, Harvard Law School professor emeritus, put it in a statement to the Harvard Crimson.

“Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition,” Tribe said. “But they will have to be more subtle than they have been thus far.”

Schools may start giving preference to students who demonstrate a “commitment to diversity,” abolishing SAT and standardized testing requirements or adopting measures that provide automatic admission to graduates in a top percentage of their high school’s class, like Texas universities did in the wake of an affirmative action ban, George Mason University law professor David Bernstein told the DCNF.

Incorporating a commitment to diversity seems to be how “a lot of summer programs and scholarship programs get around the fact that they essentially have 100% minority quotas or close to it,” Bernstein said.

Test scores, meanwhile, are often cited as a barrier to low income students. Mukherjee notes that eliminating standardized tests would also allow schools to discount the often higher scores of Asian American applicants while admitting black and Hispanic students with lower scores.

“In 2021, the average SAT score for Asian Americans was 1,239; for whites, 1,112; for Hispanics, 967; and for blacks, 934,” she said.

“Colleges have already begun doing this in anticipation of the Court’s pending decision,” Mukherjee continued. “Columbia, for example, eliminated its standardized testing requirement in March; Harvard has suspended its testing requirement through 2026.” (RELATED: Here Are 7 Major Cases The Supreme Court Has Yet To Decide This Term)

During an April 4 event at Harvard, panelists floated ideas like using geography as a proxy for race due to “segregation of cities” and schools, but rejected ideas of preferring low income students because only half of Americans in poverty are African American, meaning it “does not correspond perfectly in any way to race.”

“I’m a believer in ‘don’t let a crisis go to waste.’ This is truly an opportunity for reinvention,” said Angel Perez, CEO of the National Association for College Admission Counseling, according to a news release from the event. ”We need to reinvent. And so I do think that this is an opportunity.”

Education policy consultant Richard D. Kahlenberg and law professor John C. Brittain recommended doing away with legacy preferences, faculty children preferences and early admissions, along with boosting first generation and community college transfers and increasing financial aid, in an article for The Chronicle of Higher Education.

“The five hours of oral arguments at the Supreme Court last week in Students for Fair Admissions’ lawsuits against Harvard and the University of North Carolina at Chapel Hill left little hope that racial preferences will survive,” they said.

Universities’ new tactics are designed to “appear to have nothing to do with race” while giving a “tip” to students deemed underrepresented, Mukherjee told the DCNF.

Despite the variety of ideas coming from experts, Harvard has still lamented that “race-neutral alternatives” do not yield “the same levels of diversity.” Bernstein believes some schools “will just keep doing what they do until they get sued.”

“Some universities will just keep doing what they do until they get sued, especially because there’s not much of a likelihood that any individual university will get sued, unless they announce publicly that they are refusing to comply with a Supreme Court’s opinion,” he said.

Bernstein added: “And a few schools might even try to comply with the law.”

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