Top law school administrators are brainstorming ways to circumvent the Supreme Court's ban on race-based admissions, advising schools not to create a "record" of "discriminatory intent" and warning that socioeconomic preferences will result in too many white and Asian students being admitted.
That advice, dispensed at a legal conference in July, came from UC Berkeley Law School dean Erwin Chemerinsky and University of Michigan general counsel Timothy Lynch. Hosted by the American Association of Law Schools, the event focused on how institutions could use race-neutral means to achieve diversity.
When attendees questioned the legality of such methods, arguing that they could be struck down because of their race-conscious motive, Lynch stressed the need for plausible deniability.
"You should be aware right now of the record you're creating," Lynch told the conference, which was ostensibly devoted to helping schools comply with the Supreme Court's decision. "What are your faculty saying in emails? What are they saying in public?"
Plaintiffs often look for evidence of "discriminatory intent," Lynch explained, noting that the Supreme Court explicitly forbade backdoor racial preferences in its ruling. The "key question," he said, is "what can you say right now is the race-neutral explanation for doing it, and how do you avoid having your faculty colleagues muddy the record?"
"Great point," replied Chemerinsky, who moderated the conference. The Berkeley Law dean had been caught on tape a few days earlier, in June, describing how his school gets around California's ban on affirmative action in faculty hiring, joking with students that "if ever I'm deposed, I'm going to deny I said this to you."
In another exchange, Lynch warned that socioeconomic preferences were no substitute for racial ones—and appeared to suggest that class-based admissions help too many white and Asian students.
It "doesn't do the trick demographically," he said, because in states like Michigan, "there are many more people who are not underrepresented who are low-income."
Lawyers who reviewed footage of the conference said it could form part of the very "record" Lynch warned against creating, exposing schools to legal liability and giving plaintiffs ample ammo for a lawsuit.
"If these people were ever sued for race discrimination, this video would be exhibit A to the jury," said Samantha Harris, an attorney who specializes in education law. "Even if the speakers could articulate a non-discriminatory reason for their policies, the video calls into question their sincerity."
Lynch's statement about socioeconomics was a red flag, said Gail Heriot, a law professor at the University of San Diego who sits on the U.S. Commission on Civil Rights, and Dan Morenoff, the executive director of the American Civil Rights Project, which litigates reverse discrimination cases.
"What's the old definition of a gaffe? Saying exactly what you mean," Morenoff said. "It's like they're trying to assure they'll lose the eventual litigation."
Reached for comment, Chemerinsky said the exchanges had been taken out of context.
"The assumption of the conference—and of Mr. Lynch's remarks and mine—was that schools will comply in good faith with the Court's ruling," Chemerinsky said. Addressing the video from June, Chemerinsky added that Berkeley "does not consider race in any of its hiring and admissions decisions."
The conference, which was posted on YouTube, is perhaps the most brazen example yet of universities seeking to get around the Supreme Court's ruling. Columbia Law drew criticism this month when it announced—and then rescinded—a requirement that applicants submit 90-second "video statements," a move widely seen as a pretext for racial discrimination. Colleges across the country have also added essay questions on "identity," while some law schools have waived the Law School Admissions Test, on which white and Asian students tend to outperform their black peers.
The conference suggests critics are right to suspect an ulterior motive behind these changes. It comes as conservatives are gearing up to challenge admissions programs—such as those put in place by Thomas Jefferson High School, an elite magnet program in Alexandria, Va.—that use zip codes and other colorblind criteria as proxies for race.
While the June affirmative action ruling did not address such practices directly, courts have long barred employers from adopting facially neutral job requirements to exclude women or minorities. The same principle will likely apply to university admissions going forward, Heriot said.
"If a university selects admissions criteria BECAUSE of the effect it anticipates the criteria will have on the racial composition of the class, the criteria will be considered racially discriminatory"—and, after the affirmative action decision, a violation of the law, Heriot wrote in an email. "Lynch makes it very clear that this is what he's suggesting."
The University of Michigan offered its "complete support to Mr. Lynch's comments."
"It is our view that Mr. Lynch was a strong advocate for compliance with the law across the institution," said Rick Fitzgerald, a spokesman for the university. "And he offered his comments in the context of U-M's lived experience."
Fitzgerald also noted that Lynch, who did not respond to a request for comment, began his remarks by saying he was "not providing legal advice." That caveat would probably protect him from a malpractice lawsuit, said Noah Peters, a former solicitor of the Federal Labor Relations Authority, but wouldn't stop his statements from being used as evidence against the university.
"Courts look to decision-maker statements to divine intent," Peters said. Lynch's "general advice—to resist the constitutional obligation to not consider race—is really disturbing."
Though Chemerinsky did say the legality of race-neutral proxies remained "unresolved," he seemed fairly sanguine about their use. As long as the program is "written and … executed in a race-neutral fashion," he said, "I don't see a problem."
But other speakers seemed keen on having a fallback plan should those programs go the way of affirmative action. Mark Alexander, the president of the American Association of Law Schools and the faculty chairman of Villanova Law, suggested that religious schools like his own might be able to secure a First Amendment exemption to the ban on racial preferences.
As a "Catholic institution," Alexander said, Villanova believes that "we are strengthened by individuals of diverse backgrounds. … If we were not allowed to pursue those values, would that be a violation of our religious freedom?"
Probably not, said David Bernstein, a professor at George Mason Law School who has written extensively about the conflict between free speech and anti-discrimination law.
"A long line of precedents suggests that eliminating racial discrimination is a compelling government interest"—meaning it justifies restrictions on the First Amendment—Bernstein told the Washington Free Beacon. Alexander's argument is "a total loser."