New Ineffective Attempts To Prevent Illegal University Racial Preferencesl Warnings Clearly Ineffective, But Encouraging Whistle Blowers Would Work
Universities Circumventing Ban On Racial Preferences
WASHINGTON, D.C. (July 13, 2023) – Several major organizations and a U.S. Senator have sent warnings seeking to prevent universities from circumventing – and in one case continuing to circumvent – the ban on racial preferences, but insiders suggest that they will be ineffective. Fortunately, says one, there is a way to both detect and deter universities from violating the Constitution; e.g., by making it possible and profitable for students, staff, and faculty to report violations anonymously.
America First Legal [AFL] and Students for Fair Admissions [SFA] have each sent letters to major universities warning them against providing legal preferences. AFL threatened lawsuits over any violations, and the Liberty Justice Center [LJC] told medical schools that they would be sued if there was any delay in compliance with the Supreme Court’s ruling, notes public interest law professor John Banzhaf.
Similarly, U.S. Senator JD Vance has demanded in letters that “all eight Ivy League colleges and universities, as well as Ohio’s Oberlin and Kenyon colleges, [to] preserve records for a congressional probe of their efforts to undermine last week’s Supreme Court decision overturning race-based admissions.” In his letter the Senator “express[ed] concern” about their institutions’ “openly defiant and potentially unlawful reaction” to the decision that forbade race-based college admissions preferences, and reactions that “seemed to announce an intention to circumvent it.”
But two Harvard Law School professors, who have inside knowledge about how university admissions truly work in practice, make it clear that mere warnings will not enough. One said that Harvard “will try to exploit a loophole in the court’s ruling,” and another even explained how his university would probably do it. Harvard itself has admitted it will try to exploit a loophole in the decision.
Even more astonishing, the dean of a major California law school confessed not only that his school has been violating that state’s constitutional prohibition on racial preferences for years, but that he would go so far as to commit perjury if necessary to protect it.
The Hill reported that: “Already some universities are beginning the process of circumvention.” Bloomberg news has reported on other ways universities plan to circumvent the Supreme Court’s ruling. And the prestigious Chronicle of Higher Education explains still another way around it.
And even the liberal Washington Post, which supports racial preferences, admits: “Many universities will no doubt try to work around the Court’s decision. Indeed, a legion of academic bureaucrats has been drawing up ideas for doing just this for months, if not years.”
Violating The Constitution
So it should be no surprise that many institutions plan to violate the Constitution, but to do so in such a way that nothing is written down. Indeed, as Professor Banzhaf advised Senator Vance, universities “already have plans to surreptitiously circumvent the Supreme Court’s ruling, and to do so in such ways that they will have plausible deniability, and leave little if any paper trail which could be obtained later by your discovery demands and/or hearings.”
Since, as Harvard law professor Lawrence Tribe explained: “Universities as intelligent as Harvard will find ways of dealing with the decision,” it should not be surprising if university bureaucrats called to testify will duck questions, provide vague answers, and even claim to have no personal knowledge of violations.
Moreover, having been warned that relevant documents may be subpoenaed, it is likely that great care will be taken to commit nothing to writing which might be intimidating. If any such documents already exist, it would not be surprising if they somehow became “lost,” “misfiled,” or even “inadvertently deleted.”
Since the racial preferences thus will undoubtedly continue at many universities with a wink and a nod – with nothing written down, and in many cases even with no clear discussions – the only way to deter and detect them will be for those actually involved to come forward.
But, explains Banzhaf, student, staff, and faculty who work to operate the admissions process are already afraid of even speaking out on controversial matters (including even just using the “wrong” pronouns, or claiming that there are only two sexes), so they will not risk their academic careers simply to expose unconstitutional wrongdoing unless they can do so in complete safety (truly anonymously), and for some significant reward.
Banzhaf notes that obtaining such insider information from current university students could be especially important, even though – having already been admitted – they may not themselves be the victims of unconstitutional discrimination in the admissions process, and thus unlikely to report wrongdoing to website such as AFL’s designed for “victims.”
Prior to the Supreme Court’s ruling, admission officials could simply segregate applications from students who had checked the box “African American” and/or “Hispanic/Latino” for special consideration.
Now, however, since this will no longer be possible, the admissions offices will have to hire more students to read through the applications; a must if they wish to argue that they are making fair and unbiased heuristic decisions based upon a careful reading of each application. So current students could be a very important source about violations, especially if there were an incentive to make such reports, and strong guarantees of anonymity, he argues.
It appears that neither Vance nor any of the organizations has yet established a website where whistle blowers can report racial preference violations with reasonable protections against leaked disclosures.
Banzhaf suggests that any such website for whistle blowers should incorporate some protections such as the following, since otherwise information about who sent the information to an organization might be discoverable by a congressional committee, a plaintiff in a law suit, or some other entity:
- Using an operating system that helps preserve privacy and anonymity (e.g. Tails)
- Running files through a metadata-scrubbing tool to minimize the risk of unintentionally sending information embedded in the documents
- Using an app such as Signal which also permits a completely private back-and-forth question-and-answer conversation (e.g. with staff members)
- Using an open-source whistleblower submission system such as SecureDrop to accept documents and information from anonymous sources
Furthermore, since any student, staff member, or professor who was discovered (or even suspected) of having reported (“ratted out”) his university would almost certainly be dismissed and denounced, and become persona non grata at any other university, none are likely to risk that, even with strong guarantees they will remain anonymous, without a financial incentive.
It need not be a large amount, suggests Banzhaf, since for students and staff forced to toil in admissions offices reading hundreds of applications, even a $5000 award might provide a significant financial incentive to provide information – including incriminating documents and statistics – to the organization or members of Congress.
If the organizations noted above – and especially members of Congress – do not have or are not permitted to spend funds to induce whistle blowers to come forward, Banzhaf suggests that one or more of the wealthy individuals who are concerned about unconstitutional racial preferences might be persuaded to cooperate, and to thereby make the deterrent efforts truly effective and successful.
