November 29, 2022


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Supreme Court skeptical of race-conscious policies

7 min read

WASHINGTON – The Supreme Court’s conservative majority signaled skepticism Monday over the use of race-conscious admissions at American colleges in one of the most controversial cases before the court this year, questioning the boundaries of such policies and whether they are actually needed to ensure diversity. 

At issue are policies at Harvard College and the University of North Carolina that permit admissions offices to weigh the race of applicants as one of many factors that help decide who will be accepted. Depending on the scope of the court’s ruling, the outcome could have profound implications beyond higher education – spilling over into workplace diversity programs and other efforts to confront discrimination.

Several of the court’s conservatives noted that the 19-year-old precedent that permits the use of race in admissions had warned that such policies shouldn’t be needed forever. How, the court’s conservative justices asked, will supporters of the policies determine whether the goals of affirmative action had ever been reached? 

“I don’t see how you can say that the program will ever end,” said Chief Justice John Roberts

Associate Justice Brett Kavanaugh noted the 2003 opinion at issue in the case noted a timeline of 25 years for ending race-conscious admissions – though the sides have debated the significance of that suggestion.

“Are you saying when you’re up here and it’s 2040, are you still defending it?” Associate Justice Amy Coney Barrett said. “Like this is just indefinite?”

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Associate Justice Clarence Thomas, who has opposed race-conscious admissions in the past, pressed the attorney representing North Carolina for a definition of diversity and its benefits.  

“I’ve heard the word diversity quite a few times and I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.” 

Ryan Park, arguing on behalf of UNC, said that diversity “reduces groupthink” and “leads to a more efficient outcome” in seeking truth.

“I guess I don’t put much stock in that,” Thomas said, “because I’ve heard similar arguments in favor of segregation.” 

The court’s liberal justices, meanwhile, defended the need for race-conscious policies.

“I thought that part of what it meant to be an American and to believe in American pluralism is that, actually, our institutions are reflective of who we are as a people,” Associate Justice Elena Kagan said.

Associate Justice Samuel Alito, a conservative who has opposed race-conscious admissions policies in the past, offered a hypothetical where an immigrant from an African country moves to a rural and mostly white part of North Carolina and describes in an admissions essay how he or she had to confront a different culture. Wouldn’t that be permissible, Alito asked. 

Patrick Strawbridge, representing the anti-affirmative action group, said it probably would be permitted.

“Because the preference in that case is not being based upon the race, but upon the cultural experiences,” Strawbridge said.

That prompted a quick response from Kagan.

“Race is part of the culture and the culture is part of the race, isn’t it?” Kagan said. “I mean, isn’t that slicing the bologna awfully thin?”

Years in the making, the Harvard and UNC litigation arrives at the Supreme Court as the nation continues to wrestle with the fallout from the decision in June to overturn Roe v. Wade and end the constitutional right to abortion. The two cases are among several this term that require the court’s 6-3 conservative majority to confront the fraught issue of race in America as well as questions about the extent to which the government may consider race to remedy discrimination.

Because of that, the cases are arguably the closest watched this term. A crowd of several hundred people gathered outside the Supreme Court more than hour before the arguments got underway – most of whom appeared to be in support of the universities.

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Dozens of people lined up outside the court steps for the opportunity to hear the arguments in person – some of whom arrived the night before. Those speaking in favor of using race in admissions were the most prominent demonstrators. They carried signs that read “#defenddiversity” and “Asian Americans for Affirmative Action.” When a speaker mentioned Edward Blum, the advocate who organized the litigation, the crowd jeered.

Matthew McGann, dean of admissions at Amherst College, was one of those who arrived Sunday night. By Monday morning, he was the second-in-line to get into the court, but he and others had started listening to the arguments on their phones. 

McGann had listened to the arguments in these cases when they were before a federal trial judge in Massachusetts. He said race is just one of many factors that Amherst considers when building its class of just about 470 students. Considering race allows the liberal arts college to, “achieve an educational community where diversity works to the benefit of the education of all students,” he said. 

Madison Trice, 23, spoke in defense of affirmative action at a rally held outside the court. Trice, a member of Harvard’s class of 2021, has also previously testified for the National Association for the Advancement of Colored People in its 2018 amicus brief. She said she felt confident that, “race conscious admissions is what allowed me to be seen for my work as opposed to negating my work.” 

And Trice said she valued the diverse community she found at Harvard. She said she worried future generations of students wouldn’t have the same opportunity.

“It was really beautiful to me getting to share my identity in a space where so many people had so many different backgrounds,” Trice said. “There’s always the fear that won’t continue.” 

Few people opposed to the use of race in admissions spoke outside the court on Monday, though one person did display a sign reading, “End Affirmative Discrimination Now.

The two cases present roughly the same question: whether the Supreme Court should overturn a 2003 precedent that allowed the University of Michigan Law School to consider race as one factor in its admissions process. In an opinion by Associate Justice Sandra Day O’Connor, the court reasoned the school had a compelling interest in ensuring a diverse campus and that the way it considered race – using it only as a “plus factor” in an otherwise individualized assessment – did not violate the 14th Amendment’s equal protection clause.  

Assuming the court rules against Harvard and UNC, it could rule broadly by holding universities don’t have a compelling interest in diversity at all – a sweeping conclusion that could have widespread impact. Or it could walk a more narrow path: Upholding the importance of diversity but deciding that the way Harvard and University of North Carolina meet that goal is problematic. 

The justices engaged in an extended debate on Monday about the impact on the diversity of a class without some consideration of race in the admissions process. The lawyer for the anti-affirmative action group that filed the suit, Students for Fair Admissions, denied that African American representation would “plummet” if it won.

“All I see in your models is that we step backwards we don’t step forward,” Associate Justice Sonia Sotomayor said. 

Strawbridge countered that UNC hadn’t demonstrated that there would be a dramatic reduction that would harm a school’s interest in a diverse class.

Attorneys for the colleges and the Biden administration, who have so far been successful in lower federal courts, faced a tougher audience at the nation’s highest court. Roberts, often the most likely conservative justice to side with the court’s liberals, has repeatedly signaled his opposition to race-based decision-making in other contexts. So, too, have Thomas and Alito

The two cases – one involving the nation’s oldest private college and the other its oldest public college – had been merged but were later split to accommodate Associate Justice Ketanji Brown Jackson. The newest justice announced during her confirmation hearing in March that she would recuse herself from the Harvard case because she had previously served on the university’s board of overseers.  

Jackson took part in the UNC case. 

Students for Fair Admissions asserted the policies unconstitutionally discriminated against Asian American and white applicants. The group also claims that Harvard and UNC are not following the mandate set out by the 2003 decision to consider race-neutral policies to expand diversity.

The Boston-based U.S. Court of Appeals for the 1st Circuit ruled in 2020 that Harvard permissibly used race under that 2003 precedent. A U.S. District Court in North Carolina ruled in favor of the university there and Students for Fair Admissions sought and won review by the Supreme Court before the appeals court weighed in on the case.

Though the questions raised by the litigation are limited to higher education, experts say that a broad ruling that curbs affirmative action on American campuses could have a ripple effect on diversity and inclusion programs that have proliferated in the private sector, especially since the emergence of the Black Lives Matter movement.      

Diversity, equity and inclusion programs are now “a given” in the private sector, according to a brief filed on behalf of some of the nation’s best known brands – including Apple, General Electric, Google and Starbucks. By 2011, 97% of global companies reported formal strategies to foster diversity, according to a Forbes Insights survey cited in that brief. The companies are backing the colleges in the suits. 

A decision isn’t expected until next year.

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