“They’re cheating. Everyone knows they’re cheating. They know they’re cheating. What they are trying to do is cheat in a way that doesn’t get them caught in court.”

That was John Yoo’s response when I asked for his reaction to the racial breakdown of freshmen at some of the most selective U.S. colleges and universities. In Students for Fair Admissions v. Harvard (2023), the Supreme Court held that race-conscious admissions policies violated the Constitution and the Civil Rights Act of 1964. Given that Asian applicants tend to have higher test scores than other groups, the expectation was that their enrollment at top schools would increase once racial double standards were no longer permitted.

That’s what happened at the University of California’s Los Angeles and Berkeley campuses after voters approved a ballot initiative prohibiting race-conscious admissions in 1996. And it’s what happened this year at Harvard, Columbia and the Massachusetts Institute of Technology. But at other elite institutions, Asian enrollment somehow declined. Mr. Yoo, a Justice Department official in the George W. Bush administration and now a law professor at Berkeley, said he’s concerned about how schools with declining Asian enrollment responded to the ruling. But he’s not surprised.

Prior to the Harvard decision, Mr. Yoo co-authored an article in the New Criterion with Wen Fa, vice president of legal affairs at the Beacon Center of Tennessee, that speculated on how schools might respond to a ban on racial preferences. “Even if the Court strikes down the formal use of race in college admissions, the campaign to enforce the Constitution’s colorblindness principle will still have work to do,” the authors wrote. “The history of resistance to Brown v. Board of Education suggests that universities will respond to a loss at the Supreme Court not by abandoning their goal of meeting some ideal racial balance, but by pursuing the same end through less obvious means.”

In its landmark 1954 Brown decision, the Supreme Court said that racially segregated schools were unconstitutional. Southern states refused to acknowledge the legitimacy of the ruling, and the backlash was fierce. In some cities officials opted to close public playgrounds, swimming pools, parks and schools rather than desegregate them. Other places enacted one-grade-a-year desegregation plans to slow-walk the process. It largely worked. Judge J. Harvie Wilkinson reported in his study of the period that Charlotte, N.C., enrolled three black students in white schools in 1957, four in 1958, and only one in 1959.

The high court was aware of these stalling tactics but for the most part opted not to intervene. “From 1955 to 1968, the Supreme Court remained largely inactive in school desegregation” and “ducked a leading role by refusing even to review most rulings of the lower federal courts,” Judge Wilkinson wrote. The NAACP’s Thurgood Marshall and other civil-rights activists filed hundreds of lawsuits post-Brown to fight segregation on a school-by-school and district-by-district basis in more than a dozen Southern states.

Edward Blum, head of Students for Fair Admissions, likewise fears that some selective schools are thumbing their noses at the Harvard ruling and continue to discriminate against Asian applicants. He sent letters last week to three institutions—Duke, Yale and Princeton—where Asian admissions fell in this year’s entering class. Mr. Blum told Duke and Yale that “based on SFFA’s extensive experience, your racial numbers are not possible under true race neutrality.”

In his letter to Princeton, he said that “your racial numbers are not possible without substantially increasing socioeconomic preferences and eliminating legacy preferences,” which go to the offspring of alumni. “Yet you’ve announced no such changes, and you’ve reported no substantial increase in the number of students receiving Pell Grants,” which go to undergraduates from low-income families.

Mr. Blum is right to be suspicious. Citing data from the College Board, which administers the SAT, Nicholas Lemann recently wrote in the Chronicle of Higher Education that in 2023 “the gap between average Asian and Black test scores on the SAT was more than 300 points, and . . . nationally, fewer than 2,300 Black students got combined scores of 1400 or above, which is generally considered what a student needs to be admitted to an Ivy Plus school.” Nevertheless, black enrollment at Duke, Yale and Princeton was essentially flat this year, while Asian enrollment dipped by 6% at Duke and Yale and by 2.2% at Princeton. How?

Mr. Blum wants the schools to explain their admissions procedures, and he ends all three missives with a warning: “SFFA is prepared to enforce Harvard against you through litigation. You are now on notice.”

Too aggressive? Not for Mr. Yoo. “I think Blum is right to do what he’s doing. I think this diversity industry has so embedded itself in schools, and it’s going to take a long time to uproot it. They have to feel that they’re constantly under scrutiny.”

Appeared in the September 25, 2024, print edition as 'Some Elite Colleges Dodge the Racial-Preferences Ruling'.