Supreme Court weighs repeal of affirmative action in higher education

washington — The Supreme Court on Monday weighed whether to end race-based admissions programs as it heard arguments in two cases challenging affirmative action in higher education.

The legal battle, which involves admissions rules from the University of North Carolina, the nation’s oldest public university, and Harvard, the oldest private institution, came before the Supreme Court, which has been dramatically changed since it last heard the matter just six years ago. And in just under five hours of arguments in both cases, members of the six-judge conservative bloc expressed skepticism about allowing universities to continue to consider race as a factor in admissions.

“Why do you have these boxes? Why do you allow a student to say this one thing about me: ‘I’m Hispanic, I’m African-American, I’m Asian?’ What does that tell you on its own?” Justice Samuel Alito asked.

Justice Clarence Thomas wondered, “I’ve heard the word ‘diversity’ quite a few times and I have no idea what it means. It seems to mean everything to everybody.”

At various points during the arguments, Justices Brett Cavanaugh and Amy Coney Barrett questioned whether universities will ever reach a point where they no longer need to consider racial preferences in the pursuit of diversity in higher education.

“How will we know when the time has come?” Cavanaugh asked Solicitor General Elizabeth Prelogar, who is arguing on behalf of the Biden administration. The Justice Department supports the colleges in the legal battles and argues that diversity in the Army’s officer corps serves a “critical national security imperative.”

The Supreme Court hears cases dealing with affirmative action in higher education
A lone opponent of affirmative action in higher education stands next to a rally of supporters outside the Supreme Court on October 31, 2022 in Washington, DC

Chip Somodevilla/Getty Images

Cavanaugh and Barrett cited Justice Sandra Day O’Connor’s proposition in Grutter v. Bollinger, the 2003 decision that the narrowly tailored use of race in admissions decisions is permitted under the Constitution, that “after 25 years, the use of racial preferences will no longer be necessary.”

Noting the claim in Grutter that the use of racial classifications is “so potentially dangerous,” Barrett also asked where the “logical endpoint is?”

“When does it end? When is your sunset? When will you know?” she asked. “Because Grutter makes it very clear that this is so dangerous. Grutter isn’t saying this is great, we’re taking it. Grutter says it’s dangerous and there needs to be an end point.

Barrett said the 19-year decision may have been “very optimistic” in setting a 25-year time frame for achieving student body diversity, adding, “What if there’s no end point?”

The legal battles over admissions programs at Harvard and the University of North Carolina are the culmination of conservative activist Edward Blum’s decades-long effort to end the use of racial preferences in American life. Although he lost a challenge in 2016 against race-conscious admissions at the University of Texas, Bloom is now on the verge of declaring victory in the lawsuits filed by the group Students for Fair Admissions, which he founded.

During oral arguments, the three liberal justices and attorneys for the schools emphasized the importance of ensuring diversity in higher education and said that race-based admissions policies are needed to fully understand students’ backgrounds and experiences. However, they repeatedly emphasized that race is not the only factor that determines whether a student is accepted.

“Race alone does not explain why someone is admitted or not,” said Justice Sonia Sotomayor. “There is always a combination of reasons. There are many Hispanics, blacks, Native Americans who are not selected by the schools.

Justice Ketanji Brown Jackson, the Supreme Court’s newest justice and the first black woman to serve on the court, said she was concerned that if a university could no longer consider race as a factor in its holistic admissions process, but could take given other characteristics such as whether they served in the military or whether their parents attended school, this could raise new legal issues.

She presented a hypothetical scenario involving two college students from North Carolina who wanted to emphasize their family background during the application process. The first candidate’s family has been in the state for generations since before the Civil War, and he wants to honor his family legacy by attending the University of North Carolina. The second applicant, whose family has also been in the state for generations, is a descendant of slaves and would like to attend the school to honor his family heritage.

“As I understand your race-insensitive admissions rule, these two applicants would have had a dramatically different opportunity to tell their family stories and make them count,” Jackson told Patrick Strawbridge, who argued on behalf of Students for Fair Admissions . “The first applicant could have his family taken into account and assessed by the institution as part of the decision to accept him or not, whereas the second applicant could not because his history is in many ways connected to his race and to the race of his ancestors.”

Jackson, who is only involved in the dispute over the University of North Carolina’s admissions program, also questioned the plaintiffs’ right to file the lawsuit in the first place, pointing out that university admissions officers consider race along with dozens of other factors when considering the students’ applications.

“You have not demonstrated or shown one situation in which all [admissions officers] look it’s a race and take from it stereotypes and stuff. They look at the complete person with all these characteristics,” Jackson said.

But conservative judges and lawyers for the student group said the schools’ admissions policies unconstitutionally discriminated against students based on race and argued that eliminating race-conscious admissions would not significantly harm diversity at colleges and universities.

Chief Justice John Roberts pointed out that in some cases, the highly qualified applicant will determine whether he will be admitted to Harvard. Seth Waxman, who argued on behalf of Harvard, had told the court that some factors could weigh more favorably in favor of an applicant — such as a student who can play in the university’s orchestra — depending on the circumstances.

“We didn’t have a civil war over oboe players. We fought a civil war to eliminate racial discrimination, and so this is a matter of grave concern,” Roberts said.

Strawbridge said the school “differentiates who it will admit, at least in part, based on the race of the applicant. Some races benefit, some races don’t. While he pointed to simulations showing that race-neutral admissions can achieve the same kind of diversity as race-based considerations, Justice Sonia Sotomayor called the claim “as unrealistic as it gets.”

Sotomayor, Jackson and Justice Elena Kagan peppered Strawbridge with questions about how and whether universities can even consider race in their admissions practices.

Kagan strongly defended the benefits of institutions of higher education seeking diversity in their student bodies and the wide range of subjects that are then affected.

“These are the pipelines to leadership in our society. It could be military leadership. It could be business leadership. It could be leadership in the law. It could be leadership in all sorts of different areas. Universities are the pipeline to that leadership,” she said. “I thought that part of what it means to be American and to believe in American pluralism is that actually our institutions, you know, reflect who we are as people in all our diversity.”

The Supreme Court decision is expected this summer.

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