Well, This Sucks

One of the things that has not been covered in the Supreme Court ruling overturning affirmative action is that it creates specific legal jeopardy for colleges and university that do not reduce the number of minorities that they admit.

It creates a need to prove the absence of racial considerations in admissions, and since proving an absence is impossible, any potential litigant is likely to prevail under this rule if the college cannot demonstrate that they admitting fewer minorities:

The Supreme Court’s decision in Students for Fair Admissions v. Harvard, the case banning race consciousness in college admissions, is facially unenforceable. That’s an underreported aspect of Chief Justice John Roberts’s gobbledygook ruling, mainly because most of the white people doing the reporting have adopted the gospel of “race-neutral” and “color blindness” without giving those concepts a whole lot of critical thought. But humans cannot retroactively make themselves unaware of race. People cannot un-conscious themselves, and ordering them to not think about race just ensures that they will. (In her dissent, Justice Ketanji Brown Jackson called it a “classic pink-elephant paradox.”) The court expects college admissions officers to know about the race of their applicants, and not care, but there’s really not going to be any way to tell if colleges are disregarding the precise bit of information the court wants them to.

As a result, the real upshot of the affirmative action ruling is this: Colleges and universities must now punish Black applicants by decreasing the enrollment of Black students, by any means necessary. That’s because the only way universities can show compliance with Roberts’s new rules is to show that they’ve decreased the number of Black kids they let into school. Anything less than that will likely trigger litigation from the white supremacists who have already promised to hunt down schools that admit too many Black people, as determined by their own white-makes-right accounting system.
This intended revival of segregationist educational opportunities flows directly from the sheer hubris of Roberts’s attempt to legislate how admissions officers think, along with his open threats to universities that do not comply with his version of thought-policing. In his decision, Roberts expects that colleges and universities will be responsible for self-enforcing his ruling, but he also warns them that additional litigation will be coming their way if they try a work-around to achieve racial diversity in their classes. Again, the white media has made a big deal about the part of Roberts’s ruling where he says that colleges can still consider how race has affected an applicant (for instance, as described in a college essay), but they’ve ignored the last lines of his ruling where he specifically threatens schools that use those very essays to achieve racial diversity.

Roberts writes: 

But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today…. “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.”… A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.

………

Most important of all, how can Roberts, or anybody else, know if universities are following his rules? Roberts doesn’t tell us outright, but he sure drops a powerful hint. In his decision, he effectively accuses Harvard of using a backdoor quota system to maintain a consistent rate of Black students. He writes: “For the admitted classes [at Harvard] of 2009 to 2018, black students represented a tight band of 10.0%-11.7% of the admitted pool.” He adds in a footnote: “Harvard must use precise racial preferences year in and year out to maintain the unyielding demographic composition of its class.”

………

The answer: Only a decrease in Black enrollment is likely to satisfy Roberts. If Harvard maintains its class diversity, Roberts will accuse it of using racial preferences. If Harvard increases Black enrollment, Roberts will accuse it of using newly unconstitutional race-consciousness to promote Black applicants—beyond historical levels, he’ll likely say. Only a decrease in Black enrollment will satisfy Roberts’s unworkable standard of ignoring race. It doesn’t actually matter how Harvard goes about putting together its class: If this doesn’t produce Roberts’s desired outcome of decreasing Black enrollment, Roberts will accuse it of thinking about race.

Of course, Roberts doesn’t say by how much universities will have to decrease their Black enrollment to satisfy his new legal requirements. If he had, white media might actually have reported on this aspect of his ruling. Instead, Roberts can almost certainly rely on the efforts of outsourced goons to keep an eye on universities and sue them if too many Black kids get in. One goon squad leader in particular, Trump political adviser Stephen Miller, has already volunteered to do this work, and has basically said the quiet part aloud.

I think that this assessment is accurate, John Roberts' ruling was calculated to create this sort of disruption to minority access to education.