Posted on October 3, 2023

Universities Are Evading Supreme Court’s Anti-Affirmative Action Ruling, Congress Hears

Matthew Vadum, Epoch Times, September 28, 2023

Colleges and universities across the country are evading a recent Supreme Court ruling that struck down the use of racially discriminatory admissions policies in higher education, a congressional panel heard.

At the same time, the schools are backing away from standardized testing in order to admit academically unqualified minority applicants, a legal expert told The Epoch Times.

The hearing took place on Sept. 28 before the Higher Education and Workforce Development Subcommittee of the House Education and Workforce Committee, three months after the Supreme Court’s landmark ruling.

The June 29 decision ended the use of race-conscious admissions, a longtime goal of conservatives, but did not apply to military academies.

The case was actually two separate appeals: Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College, and SFFA v. University of North Carolina (UNC).

In the majority opinion, Chief Justice John Roberts wrote that for too long, universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

“Our constitutional history does not tolerate that choice,” he wrote. The Harvard and UNC admissions programs “cannot be reconciled with the guarantees of the Equal Protection Clause.”

“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints,” he wrote.

Justice Clarence Thomas, who had long pressed to end affirmative action, wrote a 58-page opinion concurring with the majority.

The ruling “sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

In her dissent, Justice Sonia Sotomayor wrote that the majority decision “rolls back decades of precedent and momentous progress.”

“In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Attorney J. Christian Adams, a member of the U.S. Commission on Civil Rights, said separately that institutions of higher learning “were already implementing programs to get around any future ruling” before the court ruled in the SFFA cases.

Mr. Adams is also president of the Public Interest Legal Foundation, an electoral integrity group, and was previously a civil rights attorney at the U.S. Department of Justice.

“And one of the things they did was they made test scores optional, where you don’t have to submit an SAT, or an ACT test to the college,” he said in an interview.

“The reason that that gets around any restrictions on race preferences is because it’s not a race preference, first of all, but it has the effect of getting larger numbers of blacks and Hispanics in the college who could not otherwise get in.”

“The people who support affirmative action don’t like admission tests, because admission tests tend to impair the ability of black applicants to get into college,” Mr. Adams said.

“So what is the answer to that? Get rid of the admissions test. And that’s why most colleges now are not requiring admissions tests. And students who do submit their admissions tests who aren’t at the very tippy top are not getting into college.”


Witness Alison Somin, a legal fellow at the Pacific Legal Foundation, a national public interest law firm, said schools are already trying to go around the months-old court ruling.

“The early evidence suggested evasion is going to be rampant,” Ms. Somin said.

“We see statements of intention to defy the ruling from the deans of major law schools, from presidents of universities, and even statements from state governors telling universities in their state that they can safely ignore the decision. If these evasions go unchecked, Students for Fair Admissions’s guarantees of equal treatment will ring hollow.”

The U.S. Department of Education is making the problem worse, she said.

Although the agency “has an important role to play in making sure that the civil rights laws are followed, unfortunately, the ‘Frequently Asked Questions’ document that the Office for Civil Rights issued following the Students for Fair Admissions decision indicates they’re not going to do that,” she said.