The conventional wisdom seems to be that universities will have little trouble evading the Supreme Court’s ruling against racial preferences in admissions in Students For Fair Admissions v. Harvard. I’m very skeptical of that conventional wisdom.
Edward Blum, the founder of Students For Fair Admissions, has sent a letter to colleges around the country setting forth four steps that he believes they must take (“at the very least”) to comply with the Court’s decision:
- Cease making available to admissions officers “check box” data about the race of applicants. The College Board recently introduced a feature for the Common App that makes this easy.
- During the admissions cycle, prohibit your admissions office from preparing or reviewing any aggregated data (i.e., data involving two or more applicants) regarding race or ethnicity.
- Eliminate any definition or guidance regarding “underrepresented” racial groups.
- Promulgate new admissions guidelines making clear that race is not to be a factor in the admission or denial of any applicant. This includes clear instructions that essay answers, personal statements, or other parts of an application cannot be used to ascertain or provide a benefit based on the applicant’s race.
As to the first two steps: There is no good reason for any college to receive data on the race of applicants or to prepare or monitor aggregate data on admitted applicants. Harvard’s practice has been to blind itself to information on applicants’ religious affiliation, even when applicants self-report it. It and other universities should take the same approach on race and ethnicity. If they don’t, it is reasonable to infer that they are making improper use of that information, and any plaintiff challenging a university’s admissions practice should, on that basis alone, be entitled to massive discovery.
It seems to me that there are some powerful carrots and sticks to ensure compliance with the SFFA decision. What I sketch here is tentative, and I welcome any comments or corrections.
Let’s start with the sticks. Any university employee who engages in racial discrimination is subject to personal liability under section 1983. Damages, to be sure, might be difficult to prove, but the costs of defending against a lawsuit would be considerable. And a university can’t indemnify, or cover the attorney’s fees, of an employee who is found to have committed intentional acts of racial discrimination. So an admissions officer would engage in racial discrimination at severe personal risk.
As for the carrots: Under the False Claims Act, any entity that submits false claims to the government is liable for three times the government’s damages. What’s more, private citizens may file suits on behalf of the federal government and receive a significant share—15% to 30%—of the government’s recovery. If universities (public or private) that receive federal funding certify that they are in compliance with Title VI when they are not, a private plaintiff could collect tens or hundreds of millions of dollars in damages.
The potential plaintiffs who are best positioned to detect racial discrimination in admissions are the very officers involved in admissions decisions. So any admissions officer inclined to engage in racial discrimination should be aware that his very own colleagues may be monitoring and recording his every action and statement.
Also, have in mind that the Court’s ruling that the Equal Protection Clause and Title VI prohibit racial discrimination by public universities and by universities that receive federal funds clearly extends beyond admissions to everything those universities engage in. So that includes matters as diverse as faculty hiring (no more requirements that the list of top candidates for a position include minorities), internships (no more racial preferences), and graduation ceremonies (no more “affinity”-group events defined by race or ethnicity).
A very quick check of the website for Harvard’s Office for Equity, Diversity, Inclusion & Belonging reveals plenty of things that likely violate Title VI and that could provide the basis for a lucrative False Claims Act lawsuit. For example:
- The Office states that it has “annual affirmative action goals” for Harvard as an employer. That’s code for racial discrimination. (Whether or not the Court corrects its misinterpretation of Title VII for employers generally, Title VI bars universities that receive federal funds from discriminating on the basis of race in employment.)
- The Office states that it provides separate “Affinity spaces” for various races and ethnicities.
- The Office hosts a welcome event called “Black, Indigenous, and People of Color (BIPOC) Connections.”
A thorough review of the policies and practices of universities around the country would surely uncover countless violations. So let’s see if university officers and employees, lured by the promise of massive False Claims Act recoveries, become the primary enforcers of SFFA.