The Supreme Court is expected to ban the use of racial preferences in college and university admissions sometime this session. The Centrist Independent Voter supports this decision. To quote Justice Roberts: “The way to stop racial discrimination is to stop discriminating on the basis of race.” For a more nuanced discussion of our position on this issue, including the downside of affirmative action for African-Americans, visit our policy position on the question.

Justice Ketanji Brown Jackson has raised the issue of legacy admissions as a greater inequity in the admissions process. She is right on moral grounds and the Centrist Independent Voter also opposes legacy admissions. Perhaps the obvious inequity of eliminating racial preferences in admissions while retaining legacy admissions will shame more colleges and universities into abandoning both practices. There is, however, a key difference: legacy status, or lack thereof, is not a protected status under the 14th Amendment or the Civil Rights Act; race is. We would happily support legislation to ban legacy admissions at any institutions that receive federal aid (essentially all). Nevertheless, the law bans racial discrimination and it is time for the Court to enforce the law.

Will The Supreme Court’s Decision End Racial Preferences in Admissions

In anticipation of the Supreme Court’s decision on this issue, the American Bar Association (the organization that accredits law schools) is dropping its requirement for the use of the LSAT in law school admissions. At least four major top ranked law schools have indicated that they will now stop requiring the LSAT and will stop cooperating with US News and World Report on rankings. (The USNWR rankings rely heavily on the standardized test scores.) Similarly, a number of undergraduate colleges and universities are dropping their requirements for the SAT or ACT for applicants.

These institutions are up front that their motivation for dropping the requirement for standardized test scores is to preserve racial diversity in their student populations. Connecting the dots is pretty easy. African-American students perform significantly worse on standardized tests than other ethnic groups. If standardized tests remain a requirement, disparities in test scores are tangible evidence of the use of racial preferences in admissions. The solution, in the minds of the colleges and universities, is to bury the evidence.

Up until now, standardized tests and reliance on them for ranking schools did not significantly interfere with most school’s diversity objectives. The scores are reported on the basis of the top 75th percentile and the bottom 25th percentile. This system allowed colleges and universities to admit students with exceptionally low standardized test scores (provided that they didn’t change the score associated with the bottom 25th percentile) without adversely affecting their rankings.

By dropping standardized test requirements, colleges and universities have eliminated the most visible evidence of racial preferences in admissions. If the Supreme Court does declare racial preferences in admissions to be illegal, colleges and universities can still be sued for using racial preferences in admissions but proving the case will be far more difficult. Individuals or groups that feel they have been discriminated against because of the use of racial preferences will have to obtain evidence that admissions officers were biased in their evaluation of soft evidence, like grades, activities, and essays.

The bottom line is that a Supreme Court decision on racial preferences will not end racial preferences in college and university admissions any more than Brown v. the Board of Education ended racial segregation in public schools. The system adjusts. Colleges and universities will no doubt continue to use standardized tests on a voluntary basis. This information, as virtually the only objective tool for evaluation, is just too useful to abandon completely. Students who score poorly on these exams will opt to withhold them. Students who have a claim to be in a disadvantaged minority will find a way to communicate that information even if universities can no longer ask for that information on the application.

Can We Move Toward a Racially Blind Admissions System?

The only way to move the system toward being truly racially blind would be to redact the names of the students and their schools on the applications. We would also need to abandon the use of essays. The loss of the essays seems to me to be a benefit, rather than a cost, since there is no way to know who wrote these essays. The redaction of school information does benefit minority groups since minority schools are generally less competitive in terms of grades. In the absence of standardized test scores there is no easy way to account for differences in grading procedures. In fact, those states that have banned racial preferences, like California and Texas, have substituted a system that grants preferences to students who graduate at the top of their high school classes, regardless of test scores. This gives a competitive advantage to students who go to less competitive high schools. The flagship universities in these systems are over-represented by Asians and under-represented by most other ethnic groups, but they still have a significant number of African-American students.

Dropping Standardized Tests Also Hides the Evidence of the Failures of Our K-12 Educational System

I think everyone would like to see greater diversity, of all kinds, on college campuses: racial; ethnic; class; geography; and political. The failure of colleges to achieve racial diversity is not, primarily, due to the college admission system but rather due to a K-12 educational system that does not prepare all students to fulfill their potential. You can’t fix that problem by sweeping it under the rug by abandoning standardized tests. Really fixing that problem would require attracting more and better teachers, paying those who perform well salaries that will keep them, and firing those who do not perform well. None of this can be accomplished while the teachers’ unions have a stranglehold on public education. Banning collective bargaining for teachers in public schools, eliminating tenure, and instituting pay-for-performance systems would help a lot. Voucher systems and charter schools may be a part of the solution. We should certainly give these alternatives an honest chance and evaluate their performance.

Political Implications

Politically, the Democratic Party needs to make a choice. Does it intend to represent the interests of the teachers’ unions or the interests of poor and minority students who have been short-changed by the teachers’ unions? The teachers’ unions have tried to fool the parents of minority kids into thinking that they are on the parents’ side by embracing “woke” teaching ideologies. These “woke” teaching approaches will still produce kids who can’t read or do math, but who have unrealistic expectations and grievances. If the Democratic Party does not embrace these solutions, it will continue to see its support among poor and minority voters slip away.

The Republican Party also has a choice to make. The end of racial preferences is a victory for the Republican Party. It will prove to be a pyrrhic victory if Republicans fail to acknowledge that these preferences existed for a legitimate reason. Slavery and Jim Crow left African-Americans handicapped in America. Neither the end of slavery nor the passage of the Civil Rights and Voting Rights Acts caused that handicap to magically disappear. Racial preferences were a counter-productive solution to that problem. Better solutions exist. Among these solutions are significantly increased support for effective K-12 education, subsidized health insurance (including expanding Medicaid nationally), and a Guaranteed Basic Income. These solutions disproportionately benefit African-Americans, without being race-based. They are also good public policy.