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.


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Arguments are underway

Chief Justice John Roberts introduced the case at 10:04 a.m. and arguments are underway in Students for Fair Admissions, Inc. v. University of North Carolina.

Patrick Strawbridge, arguing for SFFA, opened by telling the justices "racial classifications are wrong."

He invoked the landmark decision in Brown v. Board of Education to mean "racial classifications don’t have a place" in education. Strawbridge said flatly the court should overrule 40 years of affirmative action precedent inconsistent with Brown and "egregiously wrong."

It "contradicts the Constitution's guarantee of equal treatment,” he said.

- ABC News’ Devin Dwyer


Trump attorneys will make case against affirmative action

Two attorneys who have represented former President Donald Trump will make the case against affirmative action at the Supreme Court.

Patrick Strawbridge will argue on behalf of Students for Fair Admissions in the University on North Carolina case. Strawbridge has represented Trump in Jan. 6 matters, challenges to 2020 election results in key states and in a bid to shield his tax returns from House investigators.

Cameron T. Norris, who has also represented Trump, will represent Students for Fair Admissions in the Harvard case.

Both men are partners at Consovoy McCarthy PLLC -- and both are former clerks to Supreme Court Justice Clarence Thomas.

North Carolina Solicitor General Ryan Park is representing the University of North Carolina during the arguments. Former U.S. Solicitor General Seth Waxman from the Clinton Administration, and a Harvard alumnus, is defending the university in the second case.

- ABC News' Devin Dwyer


What to know about the cases

The justices on Monday will hear two major cases, the first starting at 10 a.m. regarding affirmative action at the University of North Carolina. The second case of the day will be about the policy at Harvard University.

Students for Fair Admissions, a group of students and parents led by conservative activist Edward Blum, has led the opposition to race-conscious admissions policies.

The organization sued the schools in 2014, alleging illegal racial discrimination against Asian American applicants during the admissions process. The schools have countered that court precedent makes clear that the consideration of race is allowed to address inequality.

A federal district court rejected SFFA’s claims, as did an appeals court. Now, the Supreme Court is being asked to weigh in on 40 years of precedent.

More information about the cases can be found here.


College students share their views on affirmative action

Ahead of the oral arguments at the Supreme Court on Monday, ABC News spoke with college students from public and private colleges on what they think about the decades-old admissions policy.

Some students said the race-conscious policy was meaningful and important. One junior at Harvard University, one of the schools where affirmative action is being challenged, said: "We can't just look at singular, individual numbers to determine who is most qualified or who should belong. We have to look at what adversity that they faced, what opportunities they have, how did they use those? Taking race into account is very important to ensure that we have a fair representation of people."

Another student from Fordham University believed not including race on in the admissions process would provide a "more holistic review" of the applicant.

"You kind of get to see the student academically, what they really are," they said. "You read a personal statement, you see their SAT scores. I think that in itself should say more about the student than the race."

Read more here.