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'
’What would an originalist think about this?’
Justice Elena Kagan posed this question to Solicitor General Elizabeth Prelogar seeking to pique the interest of her conservative colleagues and adherents to the philosophy of constitutional interpretation.
Prelogar replied that at the time of enactment of the 14th Amendment "there were federal and state laws that premised on bringing African Americans into full equality."
Justice Amy Coney Barrett, a self-avowed originalist, later conceded the point but suggested their purpose was limited.
"I entirely agree with you that it’s not always illegal to take race-conscious remedial measures," Barrett said ."It’s not accurate to say, when you look at the original evidence, that it was always colorblind… So the question is under what circumstances have those remedial measures been permitted?"
"Petitioner has not been able to point to any history that racial classifications were automatically and invariably unconstitutional," Prelogar said later.
Biden admin defends affirmative action as 'national security imperative'
Biden administration Solicitor General Elizabeth Prelogar took the podium two hours into the first case to defend affirmative action as a "national security imperative."
Prelogar argued that race-conscious admissions policies at the nation's service academies are "critically important" to building a diverse officer corps.
"At present it's not possible to achieve that without race conscious admissions, including at the nation's service academies," she said.
Under questioning by Justice Clarence Thomas, Prelogar also offered a vigorous defense of the educational benefits of diversity in a campus setting.
"Cross-racial understanding, challenging stereotypes and assumptions … reducing a sense of racial isolation and alienation, encouraging greater participation by minority students in the classroom environment," she said. "It is necessary to have our leadership broadly reflect the diversity of our country."
Justice Elena Kagan asked Prelogar why the government can't achieve those benefits by race-neutral means.
"We are trying to bolster outreach efforts…[and] looked into other alternatives," Prelogar said, including greater preference for socio-economic background factors, "but that would increase the number of white men."
Jackson sees a reverse equal protection problem in banning race from admissions
Justice Ketanji Brown Jackson, the court's first Black woman member, has repeatedly voiced concern about the impact a race-blind admissions mandate could have on young people nationwide.
"Is there a risk of treating people differently by not allowing some applicants to talk about that aspect of their identity?" she said. "I'm worried it creates an inequity in the system."
Jackson posited that it could put students of color at a disadvantage -- in potential violation of the 14th Amendment's Equal Protection Clause -- by telling schools that they cannot consider race but can consider a host of other factors.
"We are very concerned with that issue," said North Carolina Solicitor General Park, who is arguing on behalf of UNC.
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.