Supreme Court Overrules Affirmative Action, Yet Harvard Remains Undeterred

Contrary to popular belief, the Supreme Court’s recent ruling on affirmative action does not mark the end of racial discrimination in university admissions. While schools like Harvard and UNC have had their race-conscious practices invalidated, there are already indications that they will find ways to work around the ruling by considering applicants’ experience with race instead of their race itself.

A person protests outside the Supreme Court in Washington, Thursday, June 29, 2023. (AP Photo/Jose Luis Magana)

This ruling underscores the importance of constitutional principles that emphasize individual experiences over race. However, it’s no surprise that institutions like Harvard are already finding ways to bypass the ruling by shifting their focus towards considering race-related experiences of applicants. These tactics have been in the works for months as part of an agenda for “Diversity, Equity, and Inclusion,” which has been used as a cover to implement undercover racial preferences.

The organization I work for, EqualProtect.org, is dedicated to promoting equality and opposing discrimination associated with DEI initiatives. We have been at the forefront of challenging exclusionary programs that only benefit non-Whites, such as those that excluded White males or promoted segregated meetups for teachers. However, systemic discrimination to achieve de facto quotas remains prevalent in academia, government, and corporations. We have already witnessed some of the methods that will be used to circumvent the Supreme Court’s decision on affirmative action.

One of the first tactics is to eliminate evidence of discrimination rather than addressing the discrimination itself. Many universities have begun to eliminate standardized testing, like the SAT, which has highlighted the discrimination against students of Asian descent. Professional schools are also considering eliminating tests like the LSAT and MCAT. By removing these objective measures, discrimination can occur behind closed doors under the guise of a “holistic” approach, similar to tactics used against Jewish enrollment at Harvard in the 1920s and currently against Asians.

Another tactic is to offload discrimination onto third parties. We recently filed a civil rights complaint against SUNY-Albany for its involvement in a Black-only fellowship program at the Albany Public Library, which was funded by a private foundation grant. Similar complaints have been filed regarding a Providence new teacher loan forgiveness program and a business boot camp at Missouri State University, both excluding White males. Offloading discrimination onto third parties may be a favored maneuver, but it does not excuse its illegality.

DEI programming may also be dispersed or rebranded in response to budget cuts or department elimination. By creating moving targets, institutions can maintain the existence of DEI initiatives while avoiding scrutiny and accountability.

Furthermore, word games are used to replace explicit references to race and skin color. Terms like “first generation,” “historically underrepresented group,” and “marginalized populations” serve as crude proxies for implementing race-based policies.

Technology also plays a role in evasion strategies. Algorithms operating behind the scenes can manipulate pools of applicants to achieve desired quotas. This approach has extended beyond academia, with corporations and government entities adopting similar tactics.

Even artificial intelligence is being pressured to conform to desired racial quotas. The Biden administration has raised concerns about AI discrimination, providing justification for manipulating AI parameters to achieve equity.

While the Supreme Court’s rejection of “race-conscious” discrimination is significant, the battle against racial discrimination is far from over. Vigilance is required to ensure that equal treatment is upheld.

Kemberlee Kaye is the Operations and Editorial Director at the Equal Protection Project.