Conservative majority skeptical as Supreme Court hears defense of affirmative action
The justices could end a policy that's shaped college admissions for decades.
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.
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.
The court's decision is due out next year.
Here is how the oral arguments developed:
- Court adjourns after nearly 5 hours
- Solicitor General warns of 'destabilization' if affirmative action goes
- Roberts grills Harvard attorney: 'We did not fight a civil war about oboe players'
- Conservative justices press Harvard on treatment of Jews, Asians
- Attorney for Harvard says challenger group not 'entitled to its own facts'
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.
Conservative justices raise race-neutral alternatives
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.
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."
Justice Jackson questions plaintiff’s standing
Justice Ketanji Brown Jackson, the court's newest member, is questioning whether members of Students for Fair Admissions have standing to challenge the universities.
"I've been struggling to understand how race is actually factoring into the admissions process here and whether there's actually any redressable injury that arises?" Jackson asked. "How exactly UNC's system works with race and how your members are harmed by that?"
"Why is it that race is doing anything different to your members' ability to compete in this environment?" she continued. "They can get points for diversity, even, in this environment. So, why does using race as a factor harm your members in a redressable way?"
Strawbridge insisted that white students are at a disadvantage when applying to UNC because they cannot get a "plus" point based on their race.
"It does not give racial preferences to white applicants," Strawbridge said.
"Any consideration or race will give rise to injury … You're being denied the opportunity to compete on a fair playing field," he added.
Liberal justices press for facts on harm: How can you prove race is determinative?
The court's three liberal justices are challenging Patrick Strawbridge, arguing the case for Students for Fair Admissions, to articulate the harm from schools using race as one factor in a holistic review, consistent with Supreme Court precedent on affirmative action.
"You're considering race is the only factor that gets someone in at a school," Justice Sonia Sotomayor pressed
Strawbridge replied that "logic" suggests that if race is accounted for, only some people are going to get in.
Justice Ketanji Brown Jackson interjected, asking for "the facts that some people aren't going to get in?"
Strawbridge replied that experts estimate 1-2% of applicants to University of North Carolina are affected by racial considerations. He said that translates to 700 applications
"How can you ever prove that it's ever a determinative factor?" Justice Sotomayor pressed.