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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.”

Supreme Court Hears Cases Considering Affirmative Action In Higher Education
A lone opponent to affirmative action in higher education stands next to a rally of proponents in front of the Supreme Court on Oct. 31, 2022, in Washington, D.C.

Chip Somodevilla / Getty Images

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.

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