Griffin Counsel P.C.

As expected, the U.S. Supreme Court ruled that the Constitution forbids using race as a factor in college admissions. The implications are wide ranging (i.e., the ruling governs graduate and professional school admissions). As background, aggrieved Asian applicants to Harvard’s undergraduate program sued the university citing unfairness in favor of Blacks in Harvard’s admissions policy and, specifically, relying on the Fourteenth Amendment’s guarantee of Equal Protection and the Civil Rights Act of 1964’s (“’64 Act”) guarantee to enforce the Fourteenth Amendment, in this case, in educational opportunities. So everyone is on the same page: the Fourteenth Amendment was enacted to protect newly freed slaves. Yes, it applies to all Americans, but its price was 240 years of slavery, and paid exclusively by Blacks. Further, so there is no doubt, the ’64 Act was the result of a century of brutality against Blacks (e.g., peonage, lynching, Jim Crow laws), including against Black women and children. The century of de jure (i.e., legal) and de facto (i.e., illegal, but understood and accepted as a cultural norm) brutality ended when the Civil Rights Movement secured the government’s promise to use force, if necessary, to enforce Blacks’ Fourteenth Amendment rights. Exactly one year after the ’64 Act was passed a Brooklyn Congressman who had been fighting in Congress for 40 years to repeal immigration bans against non-Anglo-Saxons hit pay dirt: he used the shocking violence against Blacks and their triumph as an instrument to realize his dream to help, among others, Jews behind the Iron Curtain and other would be immigrants trapped in undesirable places get into America. Knowing Catholics were aggrieved by the immigration bans he sought and got the help of two Irish Catholics in the U.S. Senate and a year later the law of unintended consequences yielded an extraordinary gift to non-descendants of American slaves: repeal of immigration bans based on race, religion, creed, color, national origin, etc. Within five years both by repatriation and procreation the number of Asians in America skyrocketed, and according to Pew Research in 2023 they are about 7% of the U.S. population. The irony of how most of the Harvard petitioners got (1) into America and (2) the Fourteenth Amendment and ’64 Act protection would be funny were it not so cruel.

Despite not being mentioned in the ruling, ‘merit’, as evidenced by the Scholastic Aptitude Test (SAT), was the elephant in the room. The SAT has been criticized by various media sources (e.g., Reuters, The Washington Post, and The Los Angeles Times) as, frankly, dirty (e.g., the College Board’s reuse of tests it knows are in the public domain). If these media reports are credible then the petitioners’ high SAT scores are not proof of superior merit; indeed, they are inflated and evidence nothing except parental determination to masquerade children with 70th percentile intellects as Mensans. That such inflation could deprive descendants of (a) American slaves whose ancestors’ labor endowed and, in many cases, physically built those institutions (e.g., many older Harvard buildings were constructed by slaves) and (b) Native Americans whose stolen land supports every college and university campus in America is an affront to cosmic justice. As an aside there is nothing unconstitutional about giving preferences to college applicants on account of poverty or other disadvantages. I expect 90% or more children living in the Appalachia, Native American reservations, and inner cities like Camden, New Jersey, fall within this category – and can prove it.

The score inflation in pre-college standardized tests is evidenced by, and in stark contrast to, the results of standardized tests for the licensed professions, which are known to be unsparing, frequently deposing graduates of the most illustrious undergraduate institutions by either (x) failing them or (y) rectifying their illustrious academic distinctions (e.g., someone graduating at the top of his elite college class might achieve a Multistate Bar Examination (“MBE”) score in the top quarter of all examinees nationally). It is not commonly known that Asians underperform against whites on both the MBE and the medical licensing exam (the United States Medical Licensing Examination), and the reason is obvious: licensing exams are REAL tests because they have to be.

The ruling furthers the myth of Asian superiority but, anecdotally, I could tell the story of my Asian Wellesley friend and classmate who almost didn’t graduate on time because she nearly failed differential Calculus or another friend Asian who reached that 16th percentile MBE hurdle only after multiple attempts, but all we hear is Blacks can’t cut the mustard. I did and I know many other Blacks who did – with flying colors.

Hopefully America’s leading colleges learned their lesson and the SAT will be: (a) discarded; (b) reformed; or (c) scaled (i.e., an applicant’s score calibrated to historical highs (i.e., the period before the Test Prep Industrial Complex existed (e.g., a 1600 today is a probably 1450 of yesterday)). If replaced by a ‘real’ (i.e., fair) test for college admissions, it will probably yield results akin to the professional licensing exams. To be clear, licensing exams must stratify examinees accurately because, for example, if a doctor is not qualified, the consequences can be ‘grave’ (pun intended), whereas no one is injured if the mediocre scion of a wealthy family obtains an elite liberal arts degree.

As always, be careful what you wish for. Some whites laud the Harvard ruling because they think it will open up more seats for them, too, but they obviously cannot count. As Asians’ numbers are slated by Pew Research to double in the U.S. by 2060, their representation at Harvard will jump from approximately 28% (i.e., 4x their portion of the U.S. population) to more than 60% – 70%. As it does, those extra seats will not come from Blacks: whites will lose seats because they underperform on the current SAT relative to Asians. (Also, once the Asians have a school’s alumni base they will control administration (including admissions policy) and endowment, so their hegemony will be institutionalized. They will also control faculties and emeriti, and as schools buy their own and their peers’ brands the homogeneity will be nepotized across the spectrum of major colleges and universities, which, whatever anyone chooses to believe about fairness, remain the ladder to the elite and professional classes.) Where is the ‘more perfect union’ in that?

Accordingly, unless the SAT is addressed their numbers will shrink at elite colleges, and once the elite schools are saturated the second and third-tier institutions will also become minority non-Asian – and more selective. To be clear, such an outcome is problematic at the undergraduate level for two reasons: (1) according to numerous, respected media sources SAT results are not reliable evidence of merit or ability; and (2) unless a student is a STEM major (e.g., natural sciences, engineering) he or she does not need anything near an 800 math SAT score or a commensurate advanced placement test score in a STEM subject. As to this second point, a 600 math SAT score is more than adequate to pursue the typical year of Calculus most undergraduates at quality schools absorb. The foregoing analysis yields – at most – a 1400 composite SAT score, but to study the Humanities (e.g., 60% to 70% of college majors at elite schools) one does not need an 800 verbal SAT score, either. A 600 verbal SAT was more than adequate and was considered solid at elite colleges just a few decades ago. Of course, there is also the fallacy that humans become more intelligent over time, and that the enhancement is reflected in higher SAT scores. Well, the professional licensing examinations say otherwise. If colleges and universities reform their use of the SAT, they will, within constitutional limits, render the Harvard decision the paper tiger that it is.

Alice Griffin is descended from Caribbean slaves. She is the author of ‘Bar Score is Best Hiring Metric Post-Affirmative Action’ (published on Law360.com on July 11, 2023), ‘Achieving Diversity in College Admissions Without Regard to Race and Why it Matters’, ‘Asians Underperform on Professional Licensing Examinations: Implications for the Scholastic Aptitude Test (SAT)’, and ‘Multistate Bar Examination: Data, Analysis, and Rankings (2023)’.