In Washington As they considered lawsuits contesting Harvard University’s and the University of North Carolina’s affirmative action programs, conservative Supreme Court justices said on Monday that they are open to ending the explicit consideration of race in college admissions.
Members of the court’s conservative majority questioned the validity of the practice’s legal justification and inquired as to the scope of institutions’ and universities’ ability to implement new, “race neutral” admissions rules with the goal of enhancing racial diversity. However, other justices made it clear that they would be open to allowing applicants to make some mention of their racial identities in essays that discussed their experiences, such as how they overcame discrimination.
The minority of liberal justices defended the use of race in admissions, emphasizing the value of diversity on campuses and the challenges involved in achieving it without taking race into account.
Since it was implemented to address historical discrimination, affirmative action has been a divisive topic. While strongly backed by corporate America and educational institutions as essential to fostering diversity, conservatives have criticized it as being incompatible with the idea that racial equality entails treating all races equally.
The UNC and Harvard lawsuits were launched by a group called Students for Fair Admissions, led by the conservative activist Ed Blum. The Supreme Court, which has a 6-3 conservative majority, heard back-to-back oral arguments in the UNC and Harvard cases. By the end of June, a decision is expected.
Conservative justices expressed opposition to an application’s explicit consideration of race in the nearly five hours of oral arguments.
What can you learn from checking a box, exactly? Justice Samuel Alito questioned Ryan Park of UNC.
However, some conservatives appeared more receptive to including at least some acknowledgment of a candidate’s race in the selection process.
Would it be okay if Harvard were “allowed to examine what an applicant would say in an essay on having to battle discrimination growing up and how he or she did that” if box-checking were prohibited? The attorney who was contesting Harvard’s policy, Cameron Norris, was questioned by Chief Justice John Roberts.
According to Norris, the institution may legitimately take into account these demonstrations of racial identification.
Amy Coney Barrett, a conservative justice and former Notre Dame Law School professor, was one of several who appeared open to taking into account a student’s “experiential statement” that touched on race as opposed to the “box-checking” Alito mentioned.
The questions posed by Roberts and Barrett, as well as similar remarks made by another conservative justice, Brett Kavanaugh, suggested that they were considering what kind of racial-neutral policies to promote diversity might be taken into account if the court stopped explicitly taking race into account.
The Supreme Court’s 2003 decision that affirmative action would be unnecessary after 25 years was in tension with conservative justices’ apparent skepticism that colleges and universities would ever decide that their diversity goals could be achieved without taking race into account.
Barrett questioned if the 2003 decision’s suggestion that race might no longer need to be taken into account after the 25-year aspirational goal was ‘grossly optimistic’
What if there isn’t an end, she pondered.
While fellow conservative Justice Neil Gorsuch voiced worry that the purpose of creating diversity was similar to having racial quotas, which the court previously forbade, conservative Justice Clarence Thomas questioned whether colleges and universities have a compelling interest in doing so.
Gorsuch further pointed out that Harvard uses the offspring of wealthy benefactors, excellent athletes, and people whose parents attended the university as examples of what defines a diverse class. He expressed amazement that Harvard believed having a successful squash team was essential to achieving its diversity goals.
I’m not inventing it, Gorsuch declared.
The first oral argument on UNC’s affirmative action policy began with liberal Justice Sonia Sotomayor asking the opposing side’s attorney, Patrick Strawbridge, how college admissions officers can evaluate applicants from various socioeconomic backgrounds without taking race into account. This was done as supporters of affirmative action protested outside the courthouse.
Sotomayor stated that “race does sometimes correlate to some experiences and not others.” “You are more likely to attend a school with inadequate resources if you are Black.” Teachers who are less qualified than others are more likely to instruct you. You are more likely to be perceived as having less potential for academic success.
Liberal Justice Ketanji Brown Jackson disagreed with Strawbridge’s assessment of UNC’s procedure, arguing that race is never taken into account in isolation.
“You haven’t proven or demonstrated a single instance in which people only consider their race and extrapolate stereotypes and other ideas from that. They are viewing the entire individual, she claimed.
She went on to say that the school does not merely take race into account when someone clicks a box.
Jackson further questioned whether eliminating racial consideration would lead to further legal troubles. She questioned if it would be discriminatory, for instance, if white students from North Carolina were still permitted to talk about their family origins on their applications while Black students who are sprung from slaves were not. A Black applicant “wouldn’t be able to,” she added, “since his experience is in many ways wrapped up with his race,” whereas a white applicant “would be able to have his family past considered and valued.”
Colleges are “pipelines to leadership in our society,” said liberal justice Elena Kagan, head of Harvard Law School at the time the complaint was filed, in a vehement defense of the importance of racial diversity on campus.
The group’s attorneys have asked the justices to reverse the 2003 decision in Grutter v. Bollinger, in which the court stated that because universities had a compelling interest in maintaining diverse campuses, race could be taken into account when making admissions decisions. A splintered 1978 Supreme Court decision that forbade racial quotas but left the door open to some consideration of race left the legal controversy unresolved.
The University of Texas at Austin’s admissions policy was barely sustained by the Supreme Court in 2016, the most recent time the court addressed affirmative action, on a 4-3 vote, with conservative Justice Anthony Kennedy, who has since retired, delivering the deciding vote.
After former President Donald Trump selected three conservative justices, the court swung to the right. The selection of Jackson by President Joe Biden did not alter the court’s ideological makeup because she succeeded Justice Stephen Breyer, a fellow liberal. Jackson has withdrawn from that case and will only take part in the North Carolina conflict because she was a member of the board of overseers for Harvard during the litigation.
According to Blum’s group, the equal protection clause of the 14th Amendment to the Constitution and federal legislation prohibiting discrimination in education both make any consideration of race in college admissions illegal. They contend that the Harvard policy discriminates against Asians and that the UNC admissions policy discriminates both white and Asian applicants. Lower courts made favorable decisions for the colleges in both instances.
Universities and those who support them, such as the Biden administration, civil rights organizations, corporations, and former military commanders, claim that their policies are justified since promoting diversity on campus is not the same as excluding someone based only on race. The colleges claim that a thorough, tailored review of each candidate includes a variety of factors, with race being just one of them.
Affirmative action supporters claim that if the practice is stopped, race-neutral policies to promote diversity will frequently fail and decrease the enrollment of Black and Hispanic students. The opponents argue that taking race into account is not necessary and provide instances from the nine states that currently forbid the practice.