If Supreme Court ends affirmative action in higher education, here’s what the left could try next

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This week, the Supreme Court will hear oral argument in a pair of cases asking whether affirmative action in college admissions violates the Constitution’s guarantee of equal protection. If the court says yes, the question on everyone’s mind – from constitutional law scholars to high school seniors – will be: What will universities do next?

The admissions policies at competitive public K-12 schools may provide the answer, and anyone concerned with ending racial discrimination in public schools should pay close attention. 

Unlike in college admissions, public K-12 schools can’t consider a student’s race or ethnicity when deciding who to admit. Popular schools with more applicants than seats must use a race-neutral method to choose who gets in. Some schools admit students through a lottery, while others hold auditions or take the highest scorers on a standardized test.

The gates at Harvard University in Cambridge, Massachusetts, one of two schools involved in affirmative action cases before the Supreme Court. (AP Photo/Charles Krupa, file)

Though race-neutral, these methods don’t guarantee that every school’s racial demographics will be perfectly balanced or mirror those of the surrounding community. Nor should they – students aren’t interchangeable members of racial groups; they are individuals with unique talents, needs and preferences.

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But more and more, school boards and district officials are manipulating admissions policies for competitive public schools to achieve the racial balance they want. Because the law forbids K-12 schools from using race-conscious methods, school boards have had to get creative. 

By developing a set of proxies that correspond to an applicant’s race, like where the student lives or what middle school she attends, school districts have implemented admissions policies that effectively discriminate against some racial groups while admitting more students from other racial groups. All of this without the merest mention of race.

The Supreme Court  in Washington, D.C.

The Supreme Court  in Washington, D.C.
(AP Photo/J. Scott Applewhite, File)

High-profile examples from around the country show the success of proxy discrimination, and it will have undoubtedly caught the eye of college administrators wondering how to evade a potential affirmative action ban.

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For example, in Fairfax, Virginia, officials purposefully manipulated the admissions policy at the top-ranked Thomas Jefferson High School for Science and Technology to reduce the number of Asian American students earning admission to the magnet school. Taking advantage of the fact that most Asian American admittees came from just a handful of middle schools, school officials capped the number of students who could be admitted from each middle school. 

As intended, the middle school cap was a surgical strike on Asian American applicants, who went from earning 73% of seats in the freshman class the year before the new admissions policy was implemented to 54% of seats the year after.

In Boston, school officials targeted ZIP codes instead of middle schools to racially balance its prestigious exam schools. Scrapping the previous merit-based system, which ranked students citywide based on their GPA and admissions exam scores, the district now admits students based primarily on where they live. 

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Students in certain ZIP codes can be admitted to the exam schools with a lower GPA than students in other ZIP codes, which also happen to be highly correlated with race. Not coincidentally, White students admitted to the exam schools dropped from 33% to 24% under the new policy, and Asian American student representation went from 21% to 16%. An applicant’s race, not skills and abilities, became the most important indicator of admission to an exam school.

Hopefully, if the Supreme Court takes affirmative action off the table, colleges and universities will stop using race as a criterion for admission. If they don’t and instead look to discrimination-by-proxy used in competitive K-12 schools, they face an uphill battle.

The Supreme Court will hear affirmative action case involving the University of North Carolina.

The Supreme Court will hear affirmative action case involving the University of North Carolina.
(Fox 8)

Grassroots parent organizations have joined forces with the nonprofit Pacific Legal Foundation – of which we are a trustee and attorney – to fight proxy discrimination and stand up for children’s rights to compete on a level playing field. 

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In federal lawsuits in Virginia, Maryland, New York and Massachusetts, parents are asking courts to declare that proxy discrimination is unconstitutional and forbid school districts from using it to racially balance K-12 schools. This issue may ultimately reach the Supreme Court, which has the power to end proxy discrimination in education once and for all.

When it does, colleges and universities will have no choice but to do what they should have done all along: evaluate applicants as unique individuals, regardless of race or ethnicity. 

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Erin Wilcox is a Pacific Legal Foundation attorney.

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