The Supreme Court on Monday heard landmark arguments over the use of race in college admissions for nearly five hours, with its six-justice conservative majority leaving the bench apparently poised to rollback a 40-year legacy of affirmative action.
Attorneys for Students for Fair Admissions, the advocacy group challenging race-conscious policies at UNC and Harvard, argued forcefully that "racial classifications" don't have a place in higher education and that the spirit of Brown v. Board of Education, the historic 1954 decision desegregating America's schools, requires race neutrality.
The University of North Carolina and Harvard, separately through their attorneys, sought to convince the court to hold the line, insisting both admissions programs adhere to the Court's precedent allowing narrowly tailored use of race as one factor in a holistic assessment of student applicants.
They repeatedly invoked lower court rulings, derived from fact-intensive district court trials, that found neither institution illegally discriminated on the basis of race. The schools also invoked the history of the 14th Amendment, drafted after the Civil War to extend equal rights to blacks and former slaves, as evidence that race-consciousness is part of our history.
The Biden administration, backing the schools in the cases, called affirmative action a "national security imperative" with significant implications for the country's future military leadership and warned of "destabilizing effects" to corporate America if the policy is abruptly curtailed.
The U.S. Supreme Court building is seen in Washington, June 26, 2022.
Elizabeth Frantz/Reuters, FILE
Justices on both sides of the bench seemed to agree that the use of race as a factor in admissions should not continue indefinitely and that the court's prior rulings said as much. They disagreed strongly on how to decide when a transition to race neutrality is warranted and whether the milestone has been met.
Justice Ketanji Brown Jackson, the first Black woman justice, was a prominent voice during the first half of the arguments, repeatedly questioning the harm in considering race as one factor -- a "plus factor" -- among many in building a diverse student body. She also suggested that telling schools they cannot consider an applicants race could be a reverse violation of the Equal Protection clause.
Justice Clarence Thomas, the only conservative justice of color and second Black justice in U.S. history, cast doubt on the claimed measurable educational benefits from diversity on campus and appeared eager to overturn a series of precedents he's found egregiously wrong from the start.
There was much debate about the viability of race-neutral alternatives to assembling a diverse campus student body -- proposals that included an emphasis on socio-economic status over race, or the removal of "check boxes" while allowing applicants to raise race in an essay on their own.
In the end, many of the conservatives appeared convinced that the court's affirmative action precedent -- in practice -- was disadvantaging some students at the expense of others, purely on the basis of race -- even if quotas are not explicitly involved. That sort of favoritism has long ruffled Chief Justice John Roberts, among others, and their discomfort with the approach was on full display.
Justice Brett Kavanaugh, the justice who has voted most in the majority of any justice in the last two terms, could be an important factor in the scope of a final decision. He appeared laser focused on crafting a definition for "race-neutral" that would be workable and fair, asking several times about whether a school could give a plus factor for descendants of slaves.
Justices spar over racial 'check box' on applications
Justice Samuel Alito took aim at the value of a racial "check box" on college application forms, asking Park to address the plaintiffs' claim that it says nothing about the student.
"We think that's just not true," Park responded.
Alito then questioned how UNC could fairly evaluate the racial makeup of an applicant based on a "check box."
Justice Sonia Sotomayor jumped in to push back on Alito's suggestion of potential for unfair or unreasonable advantage.
"Do you get an automatic plus for checking a box?" Sotomayor put to Park, to which he responded, "No."
"That's the whole point, right?" Sotomayor said, "that checking a box doesn't get you a point" in favor of admission.
Oct 31, 2022, 11:49 AM EDT
Conservatives press: 'When does it end?'
The court's conservative justices have been bombarding North Carolina's Solicitor General Ryan Park with questions about time-limits on the use of race in admissions, which the court's 2003 decision in Grutter v. Bollinger seemed to embrace.
In that decision, Justice Sandra Day O'Connor famously predicted in her opinion upholding affirmative action that the use of race in admissions would no longer be necessary 25 years later.
"What is your goal and how would a court be able to determine when your goal has been reached? " Justice Samuel Alito pressed.
"Our goal is to achieve the educational benefits of diversity," Park responded, adding: "I understand that's a qualitative metric."
Justice Amy Coney Barrett then jumped in, asking Park: "When does it end? When is your sunset? When will you know … Grutter says this is dangerous and has to have an end point and I hear you telling Justice Alito it doesn't have an end point."
"We enthusiastically embrace an end point requirement," Park replied, adding that the university continues to look at and adopt race-neutral alternatives.
Oct 31, 2022, 11:27 AM EDT
Justice Thomas asks UNC for definition of diversity
Justice Clarence Thomas, questioning North Carolina Solicitor General Ryan Park, kicked off questioning by asking for a specific definition of diversity and explanation of what the educational benefits are.
"I've heard the word diversity quite a few times, and I don't have a clue what it means," Thomas said. "It seems to mean everything for everyone."
"We value diversity of all different kinds and all the ways people differ in our society," Park responded. "On the benefits, it's not disputed here that there are benefits of all kinds … Racially diverse and diversity of all kinds leads to a deeper and richer learning environment."
When asked by Thomas to state specific educational benefits, Park cited studies saying that racially diverse stock traders make better trades because it reduces group think.
"I guess I don't put much stock in that because I've heard similar arguments in favor of segregation, too," Thomas replied.
Thomas, whose ruled and written on affirmative action in the past, is an opponent of the policy.
The conservative justices are exploring the idea of race-neutral alternatives to achieving diversity on college campuses.
Chief Justice Roberts is leaning into the notion that if racial "check boxes" were eliminated, students could still raise race in the essay process.
Chief Justice John Roberts sits during a group photo of the Justices at the Supreme Court in Washington, DC, April 23, 2021.
Erin Schaff/AFP via Getty Images, FILE
Justice Brett Kavanaugh pressed Strawbridge for clarity on what "race-neutral" means and what standard the court might set.
"What qualifies as race neutral in the first place," he said. "What if a school says a plus factor for descendants of slaves? Is that race neutral or not? ... We have to think forward about what happens if you prevail in this case."
Strawbridge replied: "If that’s the only basis, then that may be a pure proxy for race," and impermissible.
Kavanaugh then asked about a school giving a plus factor to students of immigrants to this country, which Strawbridge said "might be permissible in the general sense."
