In 2023, the Supreme Court issued one of the clearest and most important civil rights rulings in decades in the case, Students for Fair Admissions v. Harvard. The court held that Harvard University’s race-conscious admissions systems violated the Equal Protection Clause and Title VI of the Civil Rights Act of 1964.
Chief Justice John Roberts wrote that eliminating racial discrimination means eliminating all racial discrimination. Universities receiving federal funds may not classify applicants by race and treat them differently because of their race.
That should have settled the matter. But it didn’t.
HOW COLLEGES WILL TRY TO USE RACE AS A FACTOR IN ADMISSIONS WITHOUT GETTING CAUGHT
A coalition of seventeen states, led by Massachusetts, filed a lawsuit this month seeking to block the Department of Education from collecting detailed admissions data from universities that receive federal funds. Their target is a new reporting requirement through the Integrated Postsecondary Education Data System, known as IPEDS.
The states frame their lawsuit as an administrative law dispute. They argue that the new federal data collection requirements — which only apply to schools with very competitive admissions outcomes — are too burdensome, too rushed, or potentially intrusive of students’ privacy.
Stripped of the legal jargon, the practical effect of the lawsuit would prevent the federal government from determining whether universities are complying with the Supreme Court’s ruling. In other words, if colleges are using racial proxies in their admissions decisions, the required data would be a smoking gun.
The Justice Department’s own lawsuit against Harvard, filed last month, illustrates exactly why such information is necessary. According to the government’s complaint, Harvard has refused to produce admissions data for applicants by race, as requested, as part of a federal compliance review. The government is not seeking damages or the immediate termination of federal funding. It is simply asking for records — records Harvard is already required to provide under federal regulations and under the contractual assurances it made when accepting federal grants.
Those records matter because Harvard is not starting with a presumption of innocence. The Supreme Court determined in the SFFA case that, for the last forty years or so, its admission system used race as a “negative factor,” relied on “pernicious stereotypes,” and engaged in what amounted to racial balancing that reduced the number of Asian-American students admitted. Those findings were central to the court’s decision.
An institution with such a recent record of unlawful discrimination is not entitled to a presumption that everything is now aboveboard. Federal oversight is precisely what the American public and civil rights laws require.
The states nevertheless argue that collecting disaggregated admissions data is administratively burdensome and methodologically novel. But that is not a legal basis to block federal oversight. Reporting requirements have long been a standard condition attached to federal funding. Institutions that accept federal assistance assume obligations under Title VI of the Civil Rights Act, including cooperation with compliance reviews designed to ensure that discrimination is not occurring.
The states also invoke student privacy. Privacy concerns should always be taken seriously, and the government must handle educational data responsibly. But privacy is not a categorical barrier to oversight. Federal agencies routinely collect sensitive information while complying with statutes. The relevant question is how the data are handled, not whether the government may collect them at all. If universities are truly complying with the Supreme Court’s ruling, why resist transparency?
If admissions decisions are now race-neutral, the requested data should demonstrate that fact. But if universities have simply replaced explicit racial preferences with proxies, workarounds or concealed balancing, the public, and, especially, the students affected, have every right to know.
Universities often insist that their admissions processes deserve deference because they are complex and “holistic.” But complexity cannot become a shield for discrimination. Civil rights laws apply to universities just as they apply to every other recipient of federal funds.
The Supreme Court resolved the constitutional question in Students for Fair Admissions. The remaining task is enforcement. That enforcement requires evidence, and evidence requires data.
THE LEFT’S INCURABLE DEI ADDICTION
The lawsuit filed by the states seeks to prevent the federal government from obtaining that information. Courts should reject the effort. The federal government’s authority to collect admissions data for compliance purposes falls squarely within its statutory powers. And the students whose rights are protected by civil rights law deserve nothing less than full and transparent accounting.
If racial discrimination in college admissions is truly over, the data will prove it. If it is not, the country and the courts deserve to know.
Edward Blum is the president of Students for Fair Admissions, and Nicole Neily is the president of Defending Education