Last June, in Students for Fair Admissions v. Harvard, the U.S. Supreme Court mostly banned the use of racial preferences in college admissions. The Court found such preferences violate the Equal Protection Clause of the Fourteenth Amendment that prohibits discrimination on the basis of race. The decision is likely to be well received by the public because nearly three-fourths of those surveyed indicate they do not believe that race or ethnicity should be a factor in college admissions decisions.

If you were to ask those opposed to racial preferences the basis for their opposition, most would probably say something to the effect that the “best and the brightest” should be admitted into elite colleges and race should not be a factor in those decisions. The question then is whether it is necessarily the case that more of the “best and brightest” will be admitted to elite universities now that racial preferences are prohibited. The surprising answer is “not necessarily.”

Other preferences / Racial preferences constitute only one of several types of preferences that elite universities regularly employ in making their admission decisions. There are also preferences for legacy admissions (family of alumni), athletes, and the offspring of faculty. (See “What Constitutes ‘Discrimination’ in College Admissions?” Summer 2019, and “College Admissions Preferences Are Not Justified,” Fall 2019.) While racial preferences are now prohibited, these other types of preferences that allow for non-merit admissions were not before the court in the Harvard case and remain in place for the time being.

This is worrisome because minorities do not have the same access as whites to these other types of preferences. To wit, upwards of 36 percent of the students in Harvard’s Class of 2022 are descendants of previous Harvard students and only 5 percent of Harvard’s tenured faculty are black. The Court’s decision discriminates against blacks because the only preferences that remain in place are those that disproportionately favor whites. Was the Court judicious in eliminating racial preferences when the case before it did not allow it to eliminate all preferences?

There is a self-perpetuating dimension to legacy preferences that is eerily reminiscent of hereditary succession, with all the trappings this entails. In contradistinction to racial preferences that have been adjudicated through a convoluted process over the course of more than 50 years, legacy preferences have received only limited scrutiny because the courts have not previously been asked to rule on their constitutionality.

Implicit in the aforementioned survey results is the assumption that universities would respond to a prohibition on racial preferences by increasing the number of merit-based admissions, but there is no guarantee this is what will occur. Elite universities may respond to the Court’s ruling by replacing more-able race-based admissions with less-able legacy admissions who are willing and able to contribute generously to university coffers. The outcome could well be the opposite of what is expected: a less able student body.

Disproportionate impact / This outcome, however unfortunate, is not completely unexpected. In the case of Harvard and other elite educational institutions, the Supreme Court’s decision may have served only to change how the price of admission is denominated. Race is no longer an accepted currency, but dollars can still be used as a medium of exchange to compensate for a lack of academic merit.

Employment discrimination law may offer some insight into how the courts could potentially find that these other types of preferences raise constitutional questions. The 1971 Supreme Court ruled in Griggs v. Duke Power Co. that an employer cannot augment the educational requirements for a position of employment if (1) the stated educational requirements are not necessary to perform the particular job function in a competent manner, and (2) the educational requirements would have a disproportionate impact in excluding minorities from due consideration even if there is no discriminatory intent. The Equal Employment Opportunity Commission has similarly taken the position that a requirement for a high school diploma is discriminatory under Title VII of the Civil Rights Act if it has a disparate impact on a protected group and is not job related or consistent with business activity.

Invoking similar logic, retaining all types of preferences with the exception of racial preferences in the college admissions calculus could be expected to have a disproportionate impact on excluding minorities from admission at elite universities. Chief Justice John Roberts, in an oft-quoted phrase, observed in his plurality opinion in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1 that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The question the courts will ultimately have to engage is whether retaining preferences in college admissions to which minorities do not have equal access constitutes a form of race-based discrimination.

The Supreme Court’s long-awaited decision in the Harvard case has been hailed as a victory for constitutional principles. But it may not eliminate race-based discrimination in higher education.