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.
Solicitor General warns of 'destabilization' if affirmative action goes
Biden administration Solicitor General Elizabeth Prelogar opened her second appearance before the court by taking a big-picture approach to the consequences of ending affirmative action.
Prelogar said overturning precedent would "cause racial diversity to plummet at many of our nation's leading institutions."
She said that because colleges and universities are training grounds for our future leaders there would be "reverberations through every institution in America."
Overturning Grutter v. Bollinger, the 2003 case upholding affirmative action, would have "devastating" and "destabilizing" effects, she said.
Prelogar stressed that the U.S. government's position is that race-neutral approaches are ideal and should be adopted but that conditions in higher education are not yet ripe for that transition.
Oct 31, 2022, 3:10 PM EDT
Roberts grills Harvard attorney: 'We did not fight a civil war about oboe players'
Chief Justice John Roberts, a long-time critic of race-conscious policies, pressed Harvard attorney Seth Waxman to concede that -- in some cases -- race could be a determinative factor for admission.
"You will have to concede that it provides one of many [factors] that in some cases can be determinative" Roberts said.
"I do, I do concede that," Waxman said, going on to explain that it could be a "tip" on a competitive application in the same way a student's oboe-playing abilities could be a factor if the university needed one.
"We did not fight a civil war about oboe players," Roberts shot back, "we did fight a civil war to eliminate racial discrimination."
Oct 31, 2022, 2:36 PM EDT
Conservative justices press Harvard on treatment of Jews, Asians
The conservative justices are pressing Harvard's attorney over the school's history of alleged discrimination.
"What do we do about history here?" Justice Gorsuch asked Seth Waxman. "Harvard's move to the more holistic application approach happened in the 1920s because it wanted to impose a quota on Jewish applicants, so it used diversity as subterfuge for racial quotas."
"Harvard has admitted and is ashamed that one of its presidents decided that there were too many Jews and would start asking questions on its application to start taking into account character. But the notion that that has any bearing at all… any resemblance whatsoever of the racist antisemitic policy of a single Harvard president is unfound," Waxman replied.
Justice Alito pressed Waxman to address claims that Asian American students are disproportionately disadvantaged by Harvard because of low "personality scores" given by admissions officers. Waxman responded by saying the district court found "no evidence of discrimination."
"The record shows that Asian students get the lowest personal scores of any group … what accounts for that?" Alito pushed. "Why are they given a lower score than any other group?"
"I can't do better than the findings of fact in the trial court as affirmed," Waxman responded.
Oct 31, 2022, 2:14 PM EDT
Attorney for Harvard says challenger group not 'entitled to its own facts'
Seth Waxman, the former U.S. solicitor general defending Harvard, has begun an impassioned defense of the university's admissions policies and flatly rejecting claims brought by Students for Fair Admissions.
"SFFA attempts to use Harvard's admissions program to argue that settled constitutional precedent is egregiously wrong," he said. The group is "entitled to its own arguments, but it is not entitled to its own facts."
Waxman noted that a lengthy, detailed and fact-intensive district court trial resulted in a finding that Harvard was entirely within the law -- a ruling upheld by the appeals court.
"Thirty witnesses and detailed analysis," Waxman said. "What the court of appeals robustly affirmed … applying strict scrutiny, is that Harvard does not engage in racial balancing and most certainly does not engage in discrimination against Asian American applicants. The false narrative to which SFFA clings is no basis to jettison decades of precedent."
