"When does it end?": Supreme Court weighs nixing affirmative action in higher education
Washington — The Supreme Court on Monday weighed whether to bring an end to race-conscious admissions programs as it heard arguments in a pair of cases challenging affirmative action in higher education.
The legal fight, which involves admissions policies from the University of North Carolina, the nation's oldest public university, and Harvard, the oldest private institution, came before a Supreme Court that has been dramatically reshaped since it last considered the issue just six years ago. And over just under five hours of arguments in the two cases, members of the six-justice conservative bloc expressed skepticism about allowing universities to continue considering race as a factor in admissions.
"Why do you have these boxes? Why do you give a student the opportunity to say this one thing about me, 'I'm Hispanic, I'm African American, I'm Asian?' What does that in itself tell you?" Justice Samuel Alito asked.
Justice Clarence Thomas wondered, "I've heard the word 'diversity' quite a few times, and I don't have a clue what it means. It seems to mean everything for everyone." He repeatedly asked lawyers arguing in favor of race-conscious admissions procedures to specify the educational benefits that the Supreme Court has in past decisions said justify the limited consideration of race in admissions.
At various points during the arguments, Justices Brett Kavanaugh and Amy Coney Barrett questioned whether universities would ever reach a point where they no longer need to consider racial preferences in pursuit of diversity in higher education.
"How will we know when the time has come?" Kavanaugh asked Solicitor General Elizabeth Prelogar, who argued on behalf of the Biden administration. The Justice Department is backing the colleges in the legal fights and has argued diversity within the military's officer corps serves a "critical national security imperative."
Kavanaugh and Barrett were referring to the suggestion from Justice Sandra Day O'Connor in Grutter v. Bollinger, the 2003 decision that said the narrowly tailored use of race in admissions decisions is allowed under the Constitution, that "25 years from now, the use of racial preferences will no longer be necessary."
Noting the assertion in Grutter that using racial classifications is "so potentially dangerous," Barrett also questioned where the "logical end point?"
"When does it end? When is your sunset? When will you know?" she asked. "Because Grutter very clearly says this is so dangerous. Grutter doesn't say this is great, we embrace this. Grutter says this is dangerous and it has to have an end point."
Barrett said the 19-year-old decision may have been "grossly optimistic" in setting a 25-year timeframe for achieving student-body diversity, adding, "What if there's no end point?"
The legal fights over Harvard and the University of North Carolina's admissions programs are the culmination of a decades-long effort by conservative activist Edward Blum to end the use of racial preferences in American life. Though he lost a 2016 challenge against race-conscious admissions at the University of Texas, Blum is now on the cusp of declaring victory with the cases brought by the group Students for Fair Admissions, of which he is the founder.
During oral arguments, the court's three liberal justices and attorneys for the schools stressed the importance of ensuring diversity in higher education, and said race-conscious admission policies were needed to fully understand students' backgrounds and experiences. They repeatedly stressed, though, that race was not the sole factor that determines whether a student is admitted.
"Race alone doesn't account for why someone is admitted or not admitted," Justice Sonia Sotomayor said. "There's always a confluence of reasons. There are any number of Hispanics, Blacks, Native Americans who are not chosen by schools."
Justice Ketanji Brown Jackson, the newest Supreme Court justice and the first Black woman to serve on the court, said she is concerned that if a university can no longer consider race as a factor in its holistic admissions process, but can take into account other characteristics such as whether they served in the military or if their parents attended the school, it could raise new legal problems.
She posed a hypothetical scenario involving two students from North Carolina who want to highlight their family backgrounds during the application process. The first applicant's family has been in the state for generations since before the Civil War and wants to honor their family legacy by attending the University of North Carolina. The second applicant, whose family has also been in the state for generations, is a descendent of slaves and would like to attend the school to honor their family legacy.
"As I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count," Jackson told Patrick Strawbridge, who argued on behalf of Students for Fair Admissions. "The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn't be able to because his story is in many ways bound up with his race and with the race of his ancestors."
Jackson, who only participated in the dispute over the University of North Carolina's admissions program, also questioned the plaintiffs' standing to bring the case in the first place, pointing out that university admissions officers consider race alongside dozens of other factors when considering students' applications.
"You haven't demonstrated or shown one situation in which all [admissions officers] look at is race, and take from that stereotypes and other things. They're looking at the full person with all of these characteristics," Jackson said.
But conservative justices and lawyers for the student group said the schools' admission policies unconstitutionally discriminate against students on the basis of race, and argued that striking down the race-conscious admissions would not significantly harm diversity in colleges and universities.
Chief Justice John Roberts pointed out that in some instances, a highly qualified applicant's race will determine whether they are admitted to Harvard. Seth Waxman, who argued on behalf of Harvard, had told the court that some factors may weigh more favorably toward an applicant — such as a student who could play in the university's orchestra — depending on the circumstances.
"We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination, and that's why it's a matter of considerable concern," Roberts said.
Strawbridge said the school "is making distinctions upon who it will admit, at least in part, on the race of the applicant. Some races get a benefit, some races do not get a benefit." While he pointed to simulations showing that race-neutral admissions could achieve the same sort of diversity as race-based considerations, Justice Sonia Sotomayor called the assertion "as unrealistic as you can get."
Sotomayor, Jackson and Justice Elena Kagan peppered Strawbridge with questions about how and whether universities can consider race at all in their admissions practices.
Kagan forcefully defended the benefits of higher education institutions pursuing diversity in their student bodies and the wide range of entities that are then impacted.
"These are the pipelines to leadership in our society. It might be military leadership. It might be business leadership. It might be leadership in the law. It might be leadership in all kinds of different areas. Universities are the pipeline to that leadership," she said. "I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as a people in all our variety."
A decision from the Supreme Court is expected this summer.
A remade court
In the years since the high court last considered the legality of universities considering race as a factor in their admissions programs, the composition of the court has changed markedly, with the addition of three justices appointed by former President Donald Trump.
That rightward march has raised the stakes significantly for the future of affirmative action and legal experts expect the Supreme Court's strengthened six-member conservative majority to find race-conscious admissions policies to be outside constitutional bounds.
"I would be absolutely shocked if the Supreme Court does not in one way or another eliminate affirmative action in higher education," said Jonathan Feingold, a law professor at Boston University who studies affirmative action. "The only meaningful change between 2016, when the Supreme Court reaffirmed the constitutionality of precisely what UNC and Harvard do, and now is that you lost multiple justices who were in the majority then."
Three of the justices who dissented in the 2016 case — Chief Justice John Roberts, Thomas and Alito — remain on the court today, and their conservative bloc was bolstered by the additions of Justices Neil Gorsuch, Kavanaugh and Barrett.
Kavanaugh replaced Justice Anthony Kennedy, who authored the decision finding the University of Texas's race-conscious admissions program to be lawful, and Barrett replaced the late Justice Ruth Bader Ginsburg, who was in the majority six years ago.
A "paper" organization to litigate "grievances"
The legal battles targeting the admissions programs at Harvard and the University of North Carolina were filed the same day in November 2014 by Students for Fair Admissions, which argued Harvard's race-conscious admissions policies violated Title VI of the Civil Rights Act and the University of North Carolina's admissions process ran afoul of the 14th Amendment.
In both disputes, the group, created by Blum in 2014 and said to have more than 20,000 members, is asking the Supreme Court to overturn Grutter and prohibit higher-education institutions from using race as a factor in admissions.
In the Harvard dispute, the group claims the elite school discriminates against Asian-American applicants during the admissions process by assigning them lower ratings than other races and limiting the number of Asian-Americans it admits.
Harvard, however, rejects the claim of intentional discrimination and argues it conducts a holistic review of its applicants, with race one of many factors it considers in pursuit of student-body diversity, consistent with Supreme Court precedent.
A federal district court in Massachusetts sided with Harvard in 2019, finding the school's admissions program does not penalize Asian-Americans and its policies adhere to the high court's past affirmative action decisions. The U.S. Court of Appeals for the 1st Circuit upheld the district court's decision, ruling that Harvard's race-conscious admissions procedures do not violate Title VI. Students for Fair Admissions appealed to the Supreme Court in February 2021.
Alongside the Harvard dispute, Students for Fair Admissions was mounting its second court fight targeting affirmative action at the University of North Carolina.
The group alleged in its 2014 lawsuit that the admissions process at North Carolina's flagship university is unlawful because it considers race as a factor and overlooks race-neutral alternatives available to achieve diversity among its student body. Students for Fair Admissions argues the 14th Amendment forbids the use of race in admissions by public universities.
A federal district court ruled in favor of the University of North Carolina, finding that race is one factor among many assessed in the school's holistic admissions process, and the school engages in good-faith consideration of race-neutral alternatives, for instance expanding financial aid programs or recruitment and outreach.
Students for Fair Admissions asked the Supreme Court to hear its case in November, bypassing the U.S. Court of Appeals for the 4th Circuit before it could rule.
The high court announced in January it would hear both cases involving affirmative action at the nation's oldest private and public universities.
The Biden administration is backing the schools in both cases and argues that in addition to higher education institutions, including the service academies, other entities like the federal government and the U.S. military have come to rely on the Supreme Court's decisions recognizing that the educational benefits of diversity justify limited consideration of race in admissions.
Meanwhile, Blum's involvement and the circumstances around Students for Fair Admissions creation have not gone unnoticed. Both Harvard and the University of North Carolina argued before their respective trial courts that the group did not have the legal standing to sue, but the courts found for Students for Fair Admissions and allowed the cases to proceed.
Still, state officials representing the University of North Carolina told the Supreme Court that when the case against the school was filed, Students for Fair Admissions was a "paper organization established to litigate its founder's generalized grievances."
"Material" and "symbolic" impacts
Elite colleges including Georgetown, the Massachusetts Institute of Technology and Brown University are backing Harvard and the University of North Carolina in the dispute over race-conscious admissions policies, and they're joined by major U.S. companies and civil rights groups.
In a friend-of-the-court brief from the president and chancellors of the University of California, the officials pushed back on Students for Fair Admissions proposed race-neutral approaches to admissions decisions, arguing adopting race-blind admissions undercuts efforts to attain the benefits of diversity.
The University of California, they said, has a "decades-long experience with race-neutral approaches," as California voters in 1996 approved a ballot referendum banning race-conscious measures in college admissions. In the more than 25 years since then, the proportion of students from underrepresented minority groups "fell dramatically" throughout the state's university system.
Like California, several other states have banned race-based affirmative action at public universities, such as Florida, Michigan and Arizona.
Harvard, too, warned in its brief that if affirmative action in admissions is outlawed, representation of Black and Hispanic students would decline "significantly." In fact, if the Supreme Court were to adopt race-neutral alternatives proposed by Students for Fair Admissions, there would be a nearly 33% decrease in the number of African-American students admitted, according to court filings.
Harvard also argued schools large and small have come to rely on the Supreme Court's affirmative action cases in shaping their own admissions systems: More than 41% of universities, and 60% of selective schools, consider race to some degree in their programs, the school said.
Meanwhile, more than a dozen red states, conservative legal groups and a group of GOP senators and lawmakers have thrown their support behind Blum's group.
A decision by the Supreme Court prohibiting universities from considering race as a factor in their admission methods would have both "material" and "symbolic" impacts, Feingold said.
"Among your admissions levers, if you then are no longer allowed to account for race, but you leave everything else the same, then you should expect to see a dramatic reduction in the presence of Black, and Latino and some Asian-American students, not because they don't deserve to be there, but because the institution is now simply privileging metrics that reward racial advantage, not talent and potential," he said of the material consequences..
Feingold continued: "That's going to have a particularly detrimental effect at the 'elite' or highly rejective institutions in which almost everyone who's rejected deserves to be there."
On the symbolic side, meanwhile, he said that if the Supreme Court finds race-conscious admissions policies are unlawful, what it's saying is "everything was fair and square until affirmative action arrived, and affirmative action, that is the thing that is somehow corrupting a process that's actually just rewarding the best and brightest."
"That's the somewhat dominant, but highly contested narrative that speaks to this broader debate we're having in America right now," he said.