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“Supreme Court struck down affirmative action, but that won’t stop Harvard”

This op-ed by Bill Jacobson and Kemberlee Kaye was originally published on Fox News Digital.


You probably think the Supreme Court just ended racial discrimination in university admissions, euphemistically called affirmative action, and a new day of equal treatment without regard to race or skin color has dawned.

You are mostly wrong.

Yes, SCOTUS invalidated the race-conscious practices of Harvard and UNC, holding that under the 14th Amendment a “student must be treated based on his or her experiences as an individual – not on the basis of race.”

A person protests outside the Supreme Court in Washington, Thursday, June 29, 2023. (AP Photo/Jose Luis Magana)

That is a very important statement of our guiding constitutional principles. Yet already schools like Harvard are suggesting they will skirt the ruling by considering applicants’ experience with race as opposed to the applicants’ race itself. These games are not surprising and have been in the works for months.

In anticipation of the expected ruling, new evasive ploys were developed to implement undercover racial preferences as part of a “Diversity, Equity, and Inclusion” agenda.

At, the nonprofit we run championing equality and opposing DEI discrimination, we have seen how the landscape changed prior to the SCOTUS ruling, and how that preparation will now play out.

We have challenged bigoted university and public school programs open only to non-Whites, one that excluded only White males, and we even stopped segregated teacher meetups. Yet because racial and other discrimination to achieve de facto quotas is now so deeply ingrained in academia, government and corporations, we have already witnessed some of the ways the Supreme Court’s affirmative action decision will be evaded.

First and foremost, the evidence of discrimination, not the discrimination itself, will be eliminated. Already, there is a trend to dispense with the standardized testing that proved the discrimination against students of Asian descent. Many universities have eliminated mandatory SAT testing, and professional schools are now toying with eliminating the LSATs and the MCATs.

Without standardized testing to keep the process honest, discrimination will increasingly take place behind closed doors in higher education and elsewhere using “holistic” approaches similar to what Harvard developed in the 1920s to limit Jewish enrollment, and are now used against Asians.

Offloading the discrimination onto third parties is yet another method to evade accountability. For example, we recently filed a civil rights complaint over SUNY-Albany’s participation in a Black-only fellowship program at the Albany Public Library using a private foundation grant.

Similarly, we filed a complaint regarding a Providence new teacher loan forgiveness program open only to non-Whites funded by the Rhode Island Foundation, and a Missouri State University business boot camp supported by private funding that excluded only White males. Offloading discrimination is no legal excuse, but it’s become a favored maneuver.

Another tactic is to disperse DEI programming in response to budget cuts or department elimination. At the University of Arkansas at Fayetteville, there is an effort to transfer DEI personnel and programs to other areas of the university. DEI will still exist, but in a different form and place. Creating moving targets will become more common.

Word games are another ploy, with “first generation,” “historically underrepresented group” or “marginalized populations” serving as crude proxies for race and skin color.

Technology is yet another emerging evasion. Algorithms operating unseen will be used to manipulate pools of applicants to achieve desired quotas. And it will not be limited to academia; this has already spread to corporations and the government.

We are seeing signs that even artificial intelligence is under pressure to return desired quotas. The Biden White House has jumped aboard the equity train claiming AI discrimination, thus justifying manipulation of AI parameters to achieve racial quotas.

We certainly are glad to see that the Supreme Court has rejected “race-conscious” discrimination. Yet no one should be deluded into thinking the battle has been won.

Kemberlee Kaye is operations and editorial director at the Equal Protection Project.

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