This article was first published on Law.com
Almost immediately, selective colleges around the country responded to the Supreme Court’s affirmative action ruling with expected disdain. But if they don’t comply, they could be in for a world of hurt.
The president of Harvard and 17 other senior university officials signed a letter admitting that “for almost a decade, Harvard has vigorously defended an admissions system” that the Supreme Court explained took race into consideration at nearly every stage of the admissions process. Harvard explained it is committed to preserving what it calls its “essential values,” such as racial diversity. In a not-so-veiled insinuation that it likes a comment in the court’s opinion that race can be identified in admissions essays, Harvard states with a smile: “We will certainly comply with the Court’s decision.”
Not to be outshone by the Crimson, in a statement to the Yale Community, President Peter Salovey wrote that while “deeply troubled” and with “strong disagreement with the Court’s decisions,” Yale remains committed to diversity because the “principle is core to our mission.” Salovey goes on to guarantee that Yale “will continue to foster diversity in its many dimensions.” Presumably, to include racial dimensions.
The Harvard-Yale racial diversification rivalry is by no means exclusive. Numerous other elite colleges are getting in on the Supreme Court-bashing fray.
None of this comes as a surprise. Every elite college in America has made public commitments to diversity, equity, and inclusion. Some of these commitments, detailed in a 2021 Heritage Foundation report, include salaries up to $430,000 for top-earning DEI staffers at public colleges and enormous staffing obligations where DEI administrators outnumber tenured history faculty by three to one.
What is a surprise is the forceful rebuke by the Supreme Court of the way schools have racially discriminated against applicants for over a century. Both the dissenters and the majority make note of the “sordid legacies of racial exclusion” by Harvard and UNC. Chief Justice John Roberts suggests that “such institutions should perhaps be the very last ones to be allowed to make race-based decisions.” Notwithstanding, these schools’ recent statements suggest they will continue to try to do so but there are ways to hold them accountable.
First, essentially nobody likes this. Despite a loud progressive minority decrying the end of race discriminatory admissions procedures, poll after poll shows most Americans don’t care for it. Thus, if nothing else, the court of public opinion is skewed in favor of equality and against further discrimination.
Second, elections have consequences. A lot will depend on who is running the federal government and in particular, the Department of Justice and the Department of Education’s Office for Civil Rights. Schools are free to make as many ostentatious statements defending their race-based values as they please, but when federal officials threaten investigations, defunding, and gobs and gobs of money damages for victims, their actions may not mirror their bluster. This is an especially good thing for Americans to keep in mind in the 2024 presidential election since President Joe Biden announced he “strongly disagree[s] with the Court’s decision … effectively ending affirmative action in college admissions.”
Third, lawyers seek to protect their licenses for good reasons. It usually takes a four-year undergraduate college degree, three additional years of law school, and the hurdle of a multi-day bar examination, among many other things along the way, to become a licensed attorney. A license to practice law is therefore a difficult to obtain, valuable, and prestigious credential such that lawyers don’t want to jeopardize it.
However, if lawyers within admissions offices, particularly the many within law school admissions offices, disregard the Supreme Court’s ruling striking down race consideration of applicants as unconstitutional they ought certainly to face complaints—which anyone can file—for failure to maintain the character and fitness expected of members of the bar. Following bar investigations, disciplinary actions in most all jurisdictions can range from reprimand to disbarment. This reality makes a decision to exaggerate the wiggle room that the Supreme Court might have left for race discriminatory treatment in admissions decisions an exceedingly risky proposition.
Finally, college admissions offices have lots of players and layers, as the Harvard litigation revealed. Many components are subject to freedom of information requests and, with so many moving parts, it will be hard to hide illegal conduct. And here is where it hurts most: school officials can be held personally liable for violating clearly established constitutional rights.
For state schools sued by private litigators, it should be borne in mind that government officials— which include university administrators—lose their qualified immunity if they violate clearly established constitutional rights. That means personal liability. There again, schools may talk tough, but when their presidents face the prospect of losing their beach homes in the Hamptons, that will change things quickly. There is even a suggestion now that new criminal statutes should be passed to deter and punish the racially discriminatory conduct that the Supreme Court has finally ruled unconstitutional.
Hopefully, none of this will be necessary. I pray these schools will smartly safeguard their multibillion-dollar endowments, comfortable salaries, and humble abodes by treating all applicants equally under the law. But if not, prepare to storm the beach houses.
