Editors’ note: The following essay forms part of “Affirmative action & the law: a symposium,” a special section exploring topics to be addressed in the current Supreme Court session. Roger Kimball’s introduction can be read here.

Suppose that in its current term the Supreme Court comes down like a sledgehammer on race-preferential admissions policies, giving Students for Fair Admissions (sffa) a historic win in its lawsuits against Harvard and the University of North Carolina. What then?

Will colleges and universities suddenly turn away from admissions standards that vary depending on whether a student is black, white, Asian, or Latino?

That seems unlikely. Many university officials consider their support for discriminatory standards to be a sacred duty. It would be naive to expect them to stop simply because the Supreme Court finally gets around to recognizing that this kind of race discrimination is illegal. They will either continue exactly as before or switch to an admissions policy that is facially race-neutral but in fact intricately engineered to produce their desired racial result.

Still, if you believe—as I do—that race-preferential admissions policies have had a corrosive effect on higher education, don’t get carried away with pessimism. A Supreme Court victory, if it happens, will be an important step forward. Keep in mind that, despite appearances, not all university officials are true believers. Many are simply looking to do whatever is on-trend. Others are time-fillers, less interested in ideology than in getting off work in time for dinner. I come not to praise these less-than-admirable stewards of the academic enterprise. They are at least as responsible as the true believers for the sorry state of higher education—maybe even more so. But unlike the true believers, given a little time and the right incentives, many of them could eventually do something resembling the right thing.

Despite appearances, not all university officials are true believers.

Up to now, the incentives have overwhelmingly gone in the wrong direction. Colleges and universities have been repeatedly rewarded—with government subsidies as well as foundation grants—for lowering admissions standards for selected minorities. Institutions that lag in their enthusiasm for that practice have had their accreditation and state funding threatened.

Meanwhile, legal constraints on discrimination have been largely absent. The Supreme Court in Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Gratz v. Bollinger (2003) essentially issued colleges and universities a free pass: they can discriminate against Asians and whites in admission as much as they want, so long as they don’t make it embarrassingly obvious by allocating a specific number of seats in the class to applicants from favored races (as in Bakke) or awarding those applicants a specific number of extra admissions points (as in Gratz). It is no wonder that colleges and universities ignore the evidence that race-preferential admissions are doing more harm than good even for their intended beneficiaries. It is in their interest to do so. And it is no wonder that, after decades of following these incentives, race preferences are as deeply entrenched today as they are.

It is therefore time—indeed, long past time—to start thinking about how to create better incentives. Certainly, more lawsuits will be necessary before we will see these policies significantly recede. But just as lawsuits were not enough by themselves to stop segregation after Brown v. Board of Education (1954), they probably won’t be enough to eliminate discrimination in admissions—no matter how sternly worded the Supreme Court’s decision turns out to be.

Fortunately, there are many additional measures worth considering. In this essay, I will offer just two—both concrete proposals for future congressional action. The first is to eliminate accreditation standards that essentially force colleges and universities to adopt race-preferential admissions policies. The second is to eliminate massive government subsidies for so-called Minority-Serving Institutions, which encourage the use of racial double standards.

More lawsuits will be necessary before we will see these policies significantly recede.

What happens to these proposals if the Supreme Court fails to rule decisively against race-preferential admissions policies? That would be unfortunate, but hardly shocking. The two most recent Supreme Court decisions on this issue—Fisher v. University of Texas I (2013) and Fisher v. University of Texas II (2016)—turned out to be duds, and it is entirely possible the current cases will too. But that wouldn’t change these proposals. They would still be useful in moving higher education away from the current lopsided incentives. Indeed, disappointing Supreme Court decisions would make them that much more valuable.

And if Congress ignores the proposals? That wouldn’t be shocking either. It will take a much more equality-friendly Congress and White House than we have now to turn them into law. There are, of course, other ways to give these proposals legal effect. For now, however, allow me to discuss them as potential congressional action. Congress and the executive branch have a responsibility to see to it that the Constitution and Title VI of the Civil Rights Act of 1964 are enforced. Our elected representatives shouldn’t be let off the hook just yet.

Prevent accreditors from dictating diversity

One important reason that colleges and universities appear to march in lockstep on race-preferential admissions is that their accreditors often demand it. Since federal funding is contingent on accreditation, when an accreditor issues a diversity diktat, it will be obeyed.

The idea that federal funding should be conditioned on accreditation came about innocently enough: when the GI Bill transformed the federal government into a major funder of higher education, it was clear that somebody was going to have the authority to decide which institutions would be eligible and which would not. Nobody wanted to see a Charles Ponzi’s School of Public Accountancy or a Wrong Way Corrigan’s Flight Instruction School get access to taxpayer funds. Giving the federal government itself that power would have created problems. Few Americans wanted to see the federal government take charge of education—in part because the federal government had no expertise in the area and in part because education was traditionally thought of as a state, local, and private concern, with decentralization seen as a virtue. Moreover, many saw that concentrating the power to legitimize educational institutions in the hands of government officials would create the potential for serious political abuse.

After some experimentation, the “solution” that developed was for the federal government to piggyback on private accreditors rather than to exercise the power directly. Much earlier, the private accreditation system had grown up as a means of assuring students and parents of a school’s quality. In those days, being accredited lent colleges and universities prestige, much like a restaurant rating from the Michelin Guide. But for an institution of higher learning (as for a restaurant), success was not always dependent on such an endorsement. When the federal accreditation system was getting started, the thinking was that these private accreditors would make good gatekeepers to federal funding because they had expertise and because they were perceived as politically neutral.

The problem is that giving accreditors this power didn’t get rid of the potential for political abuse. It just shifted it to different actors. And with the advent of the federal student-loan program, that power has grown to be the power of life or death over an institution.

A bit of stodginess is called for, not political activism.

Given that strength, accreditors should make every effort to avoid overreach. A bit of stodginess is called for, not political activism. Accreditors should see to it that the classrooms are habitable, the library is adequate, the curriculum covers the range of topics appropriate for a program of its type, the faculty is properly credentialed, and the program’s finances are in order. But they should avoid taking stands on educational issues upon which there is genuine disagreement.

That is not what they have been doing. For the past thirty years or so, accreditors have been among the most eager enforcers of diversity demands. Their enthusiasm for diversity makes them, in effect, enforcers of a diversity cartel.

Of course, accreditors tend not to require explicitly that underrepresented minorities be given preferential treatment—and they surely won’t be doing so if, post-SFFA, the Supreme Court holds discrimination to be contrary to law. But they often require that colleges and universities do whatever is necessary to have what they regard as a sufficiently racially diverse class, and they are fully aware that the only way to get that racial diversity is through preferential treatment.

The American Bar Association—whose Council of the Section of Legal Education and Admissions to the Bar is the federal government’s officially recognized law school accreditor—admitted in its amicus curiae brief in Grutter v. Bollinger that “race-conscious admissions are essential to increasing minority representation in the legal system.” “[I]t is unquestionable,” the aba wrote, “that the improvement in minority participation . . . has been achieved largely by the use of race-conscious admissions policies such as those under attack here.” By the aba’s own assessment, therefore, demanding that colleges and universities be racially diverse is equivalent to demanding that they give preferential treatment. If a Supreme Court decision holds that preferential treatment is illegal, accreditors are likely nevertheless to keep requiring colleges and universities to have a “sufficient” level of racial diversity. Officials at these institutions will have little choice but to continue to discriminate. They will simply hide what they’re doing.

Congress should put a stop to such pressure by mandating that the racial composition of an educational program’s student body (or its faculty) shall be outside the purview of accreditors. Such a proposal could go down more easily with colleges and universities than one might imagine. Those that are already gung ho for race-preferential admissions will have little reason to oppose it. It wouldn’t constrain them. It might even benefit them. If a school higher in the pecking order decides to discriminate somewhat less, these preference enthusiasts could gain the minority students who would otherwise have been admitted to the more high-ranking school without having to discriminate (at least as much) themselves. Meanwhile, colleges and universities that have been pressured into taking action that they otherwise would not have taken would presumably feel relieved to have that pressure eliminated.

Accreditors bullying schools

Given the confidentiality of the accreditation process, it is hard to come by data on how often colleges and universities feel pressured by their accreditors into lowering admissions standards for underrepresented minorities. But now and then an extraordinary case—like the George Mason University School of Law’s brush with disaccreditation two decades ago—comes to public attention.

gmu’s story began in 2000 when the aba’s site-evaluation team was unhappy that only 6.5 percent of entering day students and 9.5 percent of entering evening students were minorities. Nobody could argue that gmu’s problem was lack of outreach. Even the site-evaluation report conceded that gmu had a “very active effort to recruit minorities.” The report noted, however, that gmu had been “unwilling to engage in any significant preferential affirmative action admissions program.” Since most law schools were willing to admit minority students with dramatically lower academic credentials, gmu was, in the eyes of the aba, at a recruitment disadvantage.

Over the next few years, the aba repeatedly refused to renew gmu’s accreditation, citing as justification its lack of a “significant preferential affirmative action program” and supposed lack of diversity. Back and forth the negotiations went. gmu stepped up its already extensive recruitment efforts and, against the better judgment of its faculty, backed away from its earlier policy against significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98 percent in 2001 and 16.16 percent in 2002.

The aba didn’t want slow, deliberate movement in its direction; it wanted utter capitulation.

None of this was enough. The aba didn’t want slow, deliberate movement in its direction; it wanted utter capitulation. Shortly after the Court’s 2003 decision in Grutter v. Bollinger, an emboldened aba summoned the gmu president and law-school dean to appear before it and threatened the institution with revocation of its accreditation on account of its alleged diversity problem. gmu meekly responded by further lowering minority admissions standards and expanding resources devoted to diversity, all in hopes of avoiding the aba’s wrath. As a result, 17.3 percent of its entering students were minority members in 2003 and 19 percent in 2004.

Still the aba was not satisfied. In particular, the aba said that not enough of gmu’s minority students were African American. “Of the 99 minority students in 2003, only 23 were African American; of 111 minority students in 2004, the number of African Americans held at 23,” the aba complained. It didn’t seem to matter that sixty-three African Americans had been offered admission or that the only way to admit more was to lower admissions standards to alarming levels. What mattered was that gmu’s former position on preferences was heresy and had to be crushed. gmu had no choice but to give in.

The law school finally got its reaccreditation after six long years of abuse—just in time for the next round in the seven-year reaccreditation process. Sure enough, the 2007 site-evaluation team also cited gmu for its supposed lack of diversity.

Meanwhile, an important question was not being asked: what happened to the minority students who were admitted in the first round against the gmu faculty’s better judgment? The aba was apparently not interested in that. But gmu’s dean and faculty were. During the period from 2003 to 2005, when gmu was under pressure to increase its racial diversity, African-American students experienced dramatically higher rates of academic failure. In this period, 45 percent of African-American law students at gmu experienced academic failure as opposed to only 4 percent of students of other races.

In a letter to an aba official, Dean Daniel D. Polsby put the problem plainly: “We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail.”

Part of the tragedy, of course, was that the empirical evidence indicates that many of these students would have stood a greater chance of becoming lawyers if they had attended a law school at which their entering academic credentials had been more like the median student’s. Instead, the aba had insisted they be admitted to gmu, only for them to suffer academic failure there.

The gmu case is egregious. But it is not anomalous. During the 1990s, 31 percent of law schools and 24 percent of medical schools polled by the political scientists Susan Welch and John Gruhl reported that they “felt pressure” to “take race into account in making admissions decisions” from accreditation agencies. In the mid-2010s, with the help of the National Association of Scholars, I conducted a round of state public-records requests of state medical schools. Out of the sixteen schools that responded or partially responded, half had been cited by their accreditor—the Liaison Committee on Medical Education—for insufficient diversity.

The aba had insisted they be admitted to gmu, only for them to suffer academic failure there.

When an accreditor cites such a failure, the school is expected to fix the problem quickly. Indeed, even when a school isn’t specifically cited as having failed, diversity standards carry weight. At most schools, there is a range of opinion among faculty members on racial preferences. Faculties won’t always have someone who opposes them outright, but they will at least have disagreement as to how far to take such policies. Accreditor diversity standards give the upper hand to those who wish to take them further. Over the years at my own institution—the University of San Diego School of Law—I have attended more than one faculty meeting at which disagreement over this subject results in one side invoking the accreditation standard as a conversation stopper: like it or not, we are required to do this if we want to remain accredited. That tends to put an end to useful discussion.

Regardless of the outcome of the Students for Fair Admissions cases, Congress should intervene to take accreditors out of the business of forcing colleges and universities to discriminate.

Abolish federal subsidies for so-called MSIs

In an essay entitled “Starting Down the Slippery Slope,” the former University of California at Santa Cruz dean John M. Ellis candidly admitted that he started his school’s use of racial double standards back in the 1970s. And he did it precisely because federal money encouraged it:

As [sic] the beginning of my term as Graduate Dean at ucsc[,] we had as yet no affirmative action program for graduate student admissions. And so when my office chief-of-staff got wind of a soon-to-be-announced federal program of grants to campuses to provide fellowships for minority and female graduate students, we both had the same thought: of course we’d like more money to support our graduate students—but mostly we want more money, whatever it may be earmarked for.

Ellis described how he came to regret that decision:

[W]hen it began, affirmative action seemed so modest and circumscribed, so limited in scope and so well-intended that it was impossible to imagine the damage it would do.

Currently, the largest federal spending project encouraging race-preferential admissions appears to be the Hispanic-Serving Institutions (hsi) program. It is part of a larger set of Minority-Serving Institution (msi) programs, which includes programs for Asian American and Native American Pacific Islander–Serving Institutions and Predominantly Black Institutions (not to be confused with the Historically Black Colleges and Universities). But the hsi program is by far the largest and indeed the only one to be fully funded.

The hsi program shovels hundreds of millions of dollars annually through no fewer than nine federal agencies to hundreds of colleges and universities that have been designated as hsis. To be eligible for these funds, at least 25 percent of the students at the institution must be Hispanic. In theory, there is a requirement that some of the students be “needy,” but this requirement can be waived. Every year, each hsi must recertify that at least 25 percent of its students are Hispanic, so it is important not to slip below that threshold.

This is patently unconstitutional and should therefore be repealed.

This is patently unconstitutional and should therefore be repealed. Federal money is being doled out to colleges and universities based on the race or ethnicity of their students. Alarm bells should have gone off in the heads of the members of Congress who created this program. If they had any doubt about whether this is racially discriminatory, all they would need to do is “flip it.” If Congress had established a spending program for which colleges and universities would be eligible only if at least 25 percent of their students were white, no one would claim that this was anything but racial discrimination.

Under long-standing constitutional doctrine, a racially discriminatory law or program must be strictly scrutinized. To withstand that scrutiny, it must be narrowly tailored to serve a compelling governmental interest. It is hard to imagine how this program is so tailored.

None of the arguments in favor of race discrimination that the Supreme Court has allowed in the past (or might be expected to accept in the future) applies here. First, it cannot be said that the program is narrowly tailored to help colleges and universities capture the pedagogical benefits of diversity for their students. Fully 100 percent of a university’s students could be Hispanic, and it would still qualify as an hsi. Second, it cannot be said that the program is a narrowly tailored remedy for past discrimination against Hispanic students or institutions that serve Hispanic students. The program requires no such history. Any school obtaining the requisite 25 percent can qualify, even if the school was founded in the very recent past. Third, the program cannot be justified as a supplement to help schools whose students are struggling with English as a second language. There is no requirement that any of the students attending an hsi be an English learner. Even if there were, there could be no justification for helping Spanish speakers learn English, but not speakers of other languages.

It is worth noting that the hsi program is quite different from the older Historically Black Colleges and Universities program. The latter applies only to schools that existed prior to the fall of Jim Crow and was founded on the premise that these specific schools suffered from massive underinvestment both prior to Jim Crow’s fall and after. That program’s constitutional standing is thus premised on the theory that subsidies are justified as a remedy for past discrimination. Moreover, there is no reason to view the program as encouraging race discrimination in the modern era. Unlike hsis, hbcus are not required to maintain any particular racial mix among their students, and a few, like Bluefield State University in West Virginia, are now majority-white.

MSI subsidies & racial discrimination

Only a naïf could believe that schools won’t fall all over themselves to gain and retain status as hsis. My own university has given high priority to becoming an hsi. So have Marquette University, Portland State University, the University of California at San Diego, and many others. One very easy and quick way to achieve that goal is by lowering admissions standards for Hispanic students specifically. In recent years, another has been to drop the use of standardized tests for all students, knowing that this will increase the number of targeted minority students who qualify for admissions, even if it will also increase the number of students admitted who are unprepared to compete academically. Both methods are being employed.

Some schools have been honest about their motivations as they inch toward the 25 percent goal. In 2019, Florida Gulf Coast University noted in an official document entitled the “Florida Educational Equity Report” that it “continues to see an increase in enrollment of Hispanic students currently accounting for approximately 20 percent of enrollment”; “Once the University reaches 25 percent Hispanic enrollment, we will be eligible to apply for the Hispanic Serving Institution designation (hsi) which would open up the door to additional federal funding.” No one should be surprised to learn that, by 2021, fgcu was up to 24 percent Hispanic enrollment. At that point its vice president for student success and management commented to a local television station:

Achieving an hsi status allows us to become eligible for a lot of funding. That then can support our students, our faculty and support our staff so it’s really important to have [the] ability to have access to additional funding that is specifically designated for Hispanic-serving institutions.

Members of Congress take an oath to uphold the Constitution. It is as much their job to ensure that unconstitutional laws and practices are eliminated as it is the Court’s. Congress could and should put a stop to the hsi and other msi programs simply by defunding them—which would allow for the streamlined reconciliation process used for appropriations issues, that is, with no filibuster possible. In addition, Congress should repeal the programs outright. If Congress wishes to replace them with a program that subsidizes colleges and universities that serve low-income students, there is nothing in the law to prevent that.

Ultimately, a Supreme Court victory for Students for Fair Admissions would be an excellent first step on the long road toward equal treatment for all Americans regardless of race or ethnicity. But Congress and other political and cultural institutions are going to have to step up, too.

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This article originally appeared in The New Criterion, Volume 41 Number 2, on page 12
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