The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Goodbye "Race Checkbox," Hello "Diversity Sentence"
How universities will get around whatever the Supreme Court decides in the affirmative action cases.
I was a freshman in college in 2003. That year, I took a required course in cultural competency. In one class, we discussed the then-pending affirmative action cases, Grutter and Gratz. I recall that a student asked the professor what our public university would do if the Supreme Court ruled in favor of the plaintiffs. The professor, who I think also served in the university administration, gave an answer that still sticks out in my mind nearly two decades later: it doesn't matter what the Supreme Court says, we will find a way to continue granting racial preferences. At the time, I didn't appreciate her candor. The many briefs filled in Grutter and Gratz predicted an horrific parade of horribles if the Court overruled Bakke. Won't somebody please think of the service academies?!
Now, not-quite twenty-five years later, advocates for affirmative action are singing a similar tune: if the Court reverses Grutter, terrible things will happen. To quote Justice Scalia, "Do not believe it." I doubt the Roberts-six will be bothered like Justice O'Connor was. Grutter is going down. And everyone knows it. So what is Plan B for the Universities? Surely these super-intelligent institutions have considered a host of contingency plans for when the Court rules against them. They aren't going to roll over and say, okay everyone, let's be colorblind!
Allow me to spell out one such alternative. Perhaps the Court will, as I suggested, hold that universities cannot use a "race checkbox" on the application. What will the universities do in response? They will still need a way to quickly sort people based on their race. Goodbye "race checkbox," hello "diversity sentence."
Readers of this blog will likely be familiar with so-called "diversity statements." Many universities require applicants for professorships to discuss their commitments to diversity, equity, and inclusion. Invariably in this process, candidates will write about their race, sexual orientation, gender identity, and any relevant characteristics that might check a DEI box. But really, who needs an entire statement when you are sorting through thousands of college applications. Certainly, as a matter of "triage" (to use Seth Waxman's phrasing), the Common Application can require a "diversity sentence." Yes, describe your commitment to DEIdeology in 20 words or less. See, it's not a check box. We are holistically assessing a person as a whole, with very few words.
Of course admission officers can quickly scan through those sentences looking for important words: black, hispanic, transgender, and so on. CTRL-F is their friend. Universities can develop filters that highlight applications with certain words. To save words, applicants can even include a pride flag or the raised-fist emoji in the appropriate color, to signal their commitment to social justice. Who needs to be constrained to a handful of check boxes when you have thousands of progressive emojis?
Don't laugh. In the wake of Bruen, states like New York and California engaged in massive resistance to the Court's ruling that would make Orval Faubus applaud. Who cares if the Supreme Court strikes down these gun control laws in 4 or 5 years? The struggle is worth it. Universities who deem the Supreme Court as an illegitimate body will fight, kicking and screaming, to maintain their affirmative action hegemony. Sure these universities will get sued. And the discovery will be damning. But don't expect admission offices across the country to go quietly into the good night.
