I was a freshman in college in 2003. That year, I took a required course in cultural competency. In one class, we discussed the then-pending affirmative action cases, Grutter and Gratz. I recall that a student asked the professor what our public university would do if the Supreme Court ruled in favor of the plaintiffs. The professor, who I think also served in the university administration, gave an answer that still sticks out in my mind nearly two decades later: it doesn't matter what the Supreme Court says, we will find a way to continue granting racial preferences. At the time, I didn't appreciate her candor. The many briefs filled in Grutter and Gratz predicted an horrific parade of horribles if the Court overruled Bakke. Won't somebody please think of the service academies?!
Now, not-quite twenty-five years later, advocates for affirmative action are singing a similar tune: if the Court reverses Grutter, terrible things will happen. To quote Justice Scalia, "Do not believe it." I doubt the Roberts-six will be bothered like Justice O'Connor was. Grutter is going down. And everyone knows it. So what is Plan B for the Universities? Surely these super-intelligent institutions have considered a host of contingency plans for when the Court rules against them. They aren't going to roll over and say, okay everyone, let's be colorblind!
Allow me to spell out one such alternative. Perhaps the Court will, as I suggested, hold that universities cannot use a "race checkbox" on the application. What will the universities do in response? They will still need a way to quickly sort people based on their race. Goodbye "race checkbox," hello "diversity sentence."
