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The Zombie Survival of Affirmative Action


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Real Clear Politics

 Charles Lipson - RCP Contributor
November 29, 2022

The U.S. Supreme Court is expected to rule against affirmative action programs this term, finding they violate the Constitution because they deliberately discriminate by race. If you think that ruling will stop universities from treating racial groups differently, think again. Admissions officers are already hard at work figuring out ways to evade the forthcoming decision. They are supported by countless “diversity, equity, and inclusion” bureaucrats, nestled across campus. They are on a mission.

How will they skirt the high court’s ruling? By eliminating statistical evidence that they are actually discriminating, even as they continue to do so. They would be caught red-handed if they left data showing they admitted students from favored groups with markedly lower qualifications.


The tests have worked as intended for a long time, opening the world of higher education for talented students across the country. A perfect score of 800 on the math test will impress Cal Tech or MIT, whether it comes from Scarsdale, New York, or Sweet Lips, Tennessee. Without the test, how would those universities know what to make of a straight-A student from rural Tennessee?


Dropping the tests poses another problem for even the most progressive universities, beyond making it harder for them to identify the best students. Test scores are used by independent rating agencies, such as U.S. News and World Report, for ranking schools. Top schools have the highest median test scores. If those schools refused to share their scores or submitted them only for a few students, they would either forfeit their top spots in the rankings, or make such ratings little more than guesswork. Since they want to drop the tests without suffering a blow to their reputations, they are developing a cunning work-around. Let’s all do it together! If all the top schools drop out together, each one would face a lower reputational cost.

That’s exactly what the nation’s leading law schools are doing right now, in anticipation of the SCOTUS decision. Almost all of them have decided, “independently” they say, to drop their LSAT test requirements for admission. The American Bar Association, never slow to signal its virtue, is encouraging them to do so. Whether these schools acted independently or coordinated illegally (in violation of anti-trust laws) is an interesting question. But you can be sure Joe Biden’s Department of Justice won’t bother looking into it. This administration wants to encourage, not impede, the society-wide push for “diversity, equity, and inclusion,” as defined by its ideological compatriots.


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