WASHINGTON — Conservative Supreme Court justices signaled Monday that they are poised to end overt consideration of race in college admissions as they weigh cases challenging affirmative action policies at the University of North Carolina and Harvard University.
Members of the court’s conservative majority It questioned the legal justification for allowing the practice and examined the extent to which universities could enact new “race neutral” admissions policies aimed at improving racial diversity. However, some judges noted that they were willing to allow applicants to discuss their racial identity as part of essays that touched on their experiences, such as examples of overcoming discrimination.
The liberal justices in the minority defended the use of race in admissions, pointing to the importance of diversity on campus and the difficulty of achieving that goal regardless of race.
Affirmative action introduced to address historical discrimination, a Controversial issue Over the years, it has been strongly advocated by academic institutions and corporate America as essential to fostering diversity and condemned by conservatives as antithetical to the idea that racial equality means that all races are treated the same.
A Supreme Court with a 6-3 conservative majority Oral arguments were again heard in The UNC and Harvard cases Among the lawsuits brought by the Student Fair Admissions Committee, led by conservative activist Ed Bloom. A verdict is expected by the end of June.
At various points during nearly five hours of oral arguments, the conservative justices expressed hostility to overt consideration of race in an application.
“What do you learn from checking the box?” Justice Samuel Alito asked UNC attorney Ryan Park.
But some conservatives seemed more open to at least some recognition of the applicant’s race as part of the process.
If box-checking is not allowed, Harvard “should face growing discrimination and be allowed to consider what an applicant has to say in an essay about how he or she did it?” Chief Justice John Roberts asked Cameron Norris, a lawyer challenging Harvard’s policy.
Norris said such expressions of racial identity could be legally considered by the university.
Conservative Justice Amy Coney Barrett, a former professor at Notre Dame Law School, was among those who sympathized, considering what she called an “experiential report” of a student who touched on race against the “petty check” Alito refers to.
The questions asked by Roberts and Barrett — and similar comments by another conservative, Justice Brett Kavanagh — were how race-neutral policies aimed at fostering diversity would fare if the court ended its overt consideration of race.
Conservative justices were skeptical that universities could ever meet their diversity goals regardless of race, creating a conflict with the Supreme Court’s own 2003 ruling that affirmative action would no longer be required after 25 years.
Barrett wondered if the 2003 ruling was “too optimistic” that race no longer needed to be considered after the quarter-century deadline.
“What if there is no result?” she asked.
Conservative Justice Clarence Thomas questioned whether universities have a compelling interest in diversity, while fellow conservative Justice Neil Gorsuch expressed concern that the goal of achieving diversity is akin to racial quotas, which the court has previously prohibited.
Gorsuch noted that part of the explanation for Harvard’s inclusion of a diverse class includes the children of wealthy donors, accomplished athletes and those with university-educated parents. He expressed surprise that Harvard considers having a competitive squash team essential to its diversity goals.
“I didn’t make it up,” Gorsuch said.
As affirmative action supporters gathered outside the courthouse, the first oral argument on UNC’s policy began with liberal Justice Sonia Sotomayor questioning the challenge’s attorney, Patrick Strawbridge, about how college administrators can evaluate applicants from diverse socio-economic backgrounds regardless of race.
“Sometimes race is associated with some experiences and not others,” Sodomeyer said. “If you’re black, you’re more likely to be in an under-resourced school. You’re more likely to be taught by teachers who aren’t as qualified as others. You’re more likely to be perceived as having less academic ability.”
Liberal Justice Katanji Brown Jackson pushed back on Strawbridge’s interpretation of UNC’s process, saying race is never considered in isolation.
“You’re not proving or showing a situation where all they’re seeing is race and taking from those stereotypes and other things. They see the whole person,” she said.
“The university doesn’t just consider race because someone checks a box,” he added.
Jackson also questioned whether ceasing to consider race would create new legal problems. For example, she wondered if it would be discriminatory if black students who descended from slaves weren’t allowed to talk about their family background on their applications, but white students from North Carolina were still able to discuss their family background. He said the white applicant “could be valued considering his family background,” but the black applicant “has his story in many ways tied to his race.”
Liberal Justice Elena Kagan, a former dean of Harvard Law School, strongly supported the value of racial diversity on campus, saying colleges are “conduits for leadership in our society.”
Lawyers for the group asked the judge to overturn it A 2003 decision, Gruter v. Bollinger, in which the court said race can be considered a factor in the admissions process because universities have an interest in maintaining a diverse campus. The legal debate was left unresolved by a landmark 1978 Supreme Court ruling, in which the justices banned racial segregation but opened the door to some notions of race.
In 2016, the last time the Supreme Court ruled on affirmative action, the justices upheld the admissions policy at the University of Texas at Austin in a 4-3 vote with conservative Justice Anthony Kennedy.
The court shifted to the right after former President Donald Trump appointed three conservative justices. Jackson’s appointment by President Joe Biden didn’t change the bench’s ideological balance, as he replaced fellow liberal Justice Stephen Breyer. Because Jackson had previously served on Harvard’s Board of Overseers, he recused himself from the case and would participate only in the North Carolina controversy.
Bloom’s group argues that consideration of race in university admissions is illegal under federal law prohibiting discrimination in education and the equal protection clause of the Constitution’s 14th Amendment. They argue that UNC’s admissions policy discriminates against white and Asian applicants, and that Harvard’s policy discriminates against Asians. In both cases, lower courts ruled in favor of the universities.
In defending their policies, universities and their supporters — including the Biden administration, civil rights groups, businesses and former military leaders — argue that excluding someone on the basis of race is quite different from seeking diversity on campus. Universities say race is one factor considered as part of a broader individualized analysis of each applicant.
Defenders of the practice say that if affirmative action ends, race-neutral policies aimed at achieving diversity will likely fail, leading to lower black and Hispanic enrollment. Opponents point to examples in the nine states that have already banned the practice as evidence that race is not a necessary consideration.