Affirmative Reaction | Center for Equal Opportunity

Now there was some interesting news—the story of a college that had ended affirmative action. I hustled to write a piece about this, only to find out that the College of Charleston was touting its commitment to affirmative action and going to continue to practice it in its admissions program. Too bad, at least for me. I wound up revising my article, published a few weeks ago in The Weekly Standard.

The Charleston reversal (or whatever it was) remains compelling for the reminder it sends—namely, that the legal doctrine under which the courts have permitted racial preferences in admissions has also called for its end. Funny how higher educators talk little about ending affirmative action. Nor am I am waiting for the College of Charleston to resume its short-lived interest in ending affirmative action; the last thing the college wants is more publicity about whatever it is doing with any aspect of affirmative action. But surely there is an admissions committee on a campus somewhere across the fruited plain that realizes the need to wind down preferences in admissions and the discrimination they inflict upon those of the wrong race or ethnic background.

In 2016 the College of Charleston ended the practice of considering race and ethnicity in admissions decisions—affirmative action, as it is called. The change went unnoticed in the college community until the Post and Courier, the local daily paper, reported it on July 29. Whereupon, almost within the same news cycle, the school’s interim president, professing the college’s commitment to “diversity on campus,” wrote that the school had not made “any changes to its official admissions policies regarding race” and is using affirmative action.

It was as though nothing had happened, though it had. The College of Charleston had long employed the so-called “holistic” approach to admissions, in which a committee takes into account not just academic achievement but nonacademic factors like extracurricular activities—along with race and ethnicity. But in 2016 the committee removed race and ethnicity from the list of factors. And now, in the middle of the summer of 2018, the college has added them back to the list. Never mind that the freshman class of 2017 was the first in years to be selected without race-based affirmative action. The college will conduct “an additional review of students of color who [were] not initially recommended for admission,” reports the Post and Courier.

So the status quo ante is back. But the committee that eliminated race and ethnicity as factors taken into account in the holistic approach deserves a good word for its work. The committee ended the use of race apparently because of welcome trends in the college’s admissions. According to the chief enrollment officer, in an interview with the Post and Courier, the committee recognized that “our student-of-color enrollments were increasing substantially”—having doubled in the past decade—“while we were infrequently using race as a factor” in admissions. In other words, more and more “students of color” were being accepted without race having been a factor in the reviews of their applications. Evidently there was no reason for the committee to think that those trends would have abated under a race-neutral holistic process.

Race-neutrality seems to have been a lodestar for the committee. In 2015 it began the implementation of a Top 10 Percent Plan similar to the one used by the University of Texas for more than 20 years. Under this plan, admission is guaranteed to students who finish in the top 10 percent of their classes. Top 10 is race-neutral. And while it is a pilot program in place in seven of the state’s southern-most counties—the South Carolina Lowcountry—it could be expanded throughout the state.

Meanwhile, the college’s resumption of affirmative action is a story not likely to die down any time soon. It may attract the attention of the Justice Department, which just last month reviewed several Obama-era “guidance” documents that “purport to explain the legal framework that governs the use of race” by postsecondary schools. The Obama administration’s analysis of that framework tilted in favor of the use of race in admissions decisions. “The documents were written to advocate where the law should go,” a senior department official told me.

Justice has now withdrawn the documents and may write new ones that are consistent with the law—and tougher about when the use of race in admissions may be justified. Note well that the Supreme Court’s cases on affirmative action have yielded the exacting doctrine of “strict scrutiny,” under which race may be used in admissions only if it is “narrowly tailored” to attain the “compelling interest” of educational diversity.

The college also may have to contend with a rejected applicant alleging that the “additional review” is racially discriminatory and a violation of federal law, which prohibits discrimination on the basis of race and ethnicity. Such a lawsuit would go nowhere if the college weren’t competitive, which evidently it is.

Still, it is better not to be sued than to be sued. The risk of the latter has now increased, and a complaint could focus on the “color line” the college has just drawn. Thanks to that line, an applicant of color may get an “additional review,” but one who is not won’t, which means some rejected applicants may claim to have received unequal treatment by the college. And if the extra review of a declined applicant of color is based on race alone and does not involve an “individualized consideration” of the person, as the Court requires, that too could be a problem.

College of Charleston records show that more and more of the school’s “admits” identify themselves as being of two or more races. That is just another piece of evidence that ours is a multiracial, multicultural country that is remaking itself every day.

Set against this canvas of demographic change, affirmative action is, as Justice Sandra Day O’Connor once wrote, a “deviation from the norm of equal treatment of all racial and ethnic groups.” For that reason, she made clear that the deviation must be “temporary.” Hence “the requirement that all race-conscious admissions programs have a termination point.” Getting to that point is the urgent work of admissions committees struggling with affirmative action and hoping for its end.

Related posts: