Overturning the court’s precedents that race can be one factor of many in making admission decisions would have “profound consequences” for “the nation that we are and the nation that we aspire to be,” Solicitor General Elizabeth B. Prelogar told the justices.
“The negative consequences would have reverberations throughout just about every important institution in America,” she said, listing the military, medical and scientific communities, and corporate America.
But the court’s conservatives took the cases to revisit decades of Supreme Court decisions that tolerated a limited use of racial classifications, and seemed unsatisfied with assertions from lawyers representing the schools that the end was near for the use of race-conscious policies. Under repeated questioning, those lawyers conceded they could not provide a date-specific answer to the question: “When will it end?”
Read live updates from Monday’s oral arguments on UNC, Harvard cases
Patrick Strawbridge, representing Students for Fair Admissions, said allowing the use of race in higher education was an outlier among the court’s decisions that should be rejected.
“Whatever factors the government may use in deciding which jurors to sit, who you may marry, or which primary schools our children can attend, skin color is not one of them,” he said.
It was the term’s most polarizing hearing so far, and the extensive debate represented an extraordinary time investment for the court in which, typically, arguments span an hour. The courtroom was packed for the UNC case, which was heard first, and at least four of the justices’ spouses — Jane Roberts, Virginia “Ginni” Thomas, Ashley Kavanaugh and Patrick Jackson — were in attendance.
The court has narrowly upheld affirmative action in the past. But the court’s newfound conservative supermajority showed last term it is unafraid of upending precedent by overturning Roe v. Wade.
Justice Clarence Thomas, the court’s longest-serving member and a regular critic of race-conscious policies, made clear early his rejection of the goal of racial diversity in student bodies, which is what previous courts have found a compelling interest.
“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Thomas said to North Carolina Solicitor General Ryan Y. Park.
When Park tried to explain the educational benefits of diversity, Thomas, who is the second Black justice to sit on the court, replied that he didn’t “put much stock in that because I’ve heard similar arguments in favor of segregation too.”
Chief Justice John G. Roberts Jr., who often tries to play a moderating role among conservatives seeking to move the law quickly, showed that the use of race might be an exception.
Roberts in the past has written the court’s conservative opinions in cases confining the Voting Rights Act and the use of race in making public school student assignments. In a forceful exchange with Harvard’s lawyer, he worried about a system in which a student would have better odds for admission “based solely on” skin color.
After repeated questions, lawyer Seth P. Waxman conceded that being African American or Hispanic — or in some cases Asian American — can tip the scales in favor of admission for highly qualified applicants.
“So we’re talking about race as a determining factor in admission to Harvard,” Roberts said, his voice rising.
It can be the determining factor, Waxman responded, “just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip.”
Roberts quickly shot back: “We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination,” he said. “And that’s why it’s a matter of considerable concern. I think it’s important for you to establish whether or not granting a credit based solely on skin color is based on a stereotype when you say this brings diversity of viewpoint. It may not bring diversity of viewpoint in a particular case at all.”
Justice Samuel A. Alito Jr. and others saw college admissions as a zero-sum game: Any advantage given to one student automatically meant a disadvantage to another.
If it’s “a 100-yard dash, let’s say he gets to start 5 yards closer to the finish line,” Alito said to lawyer David Hinojosa, representing students defending UNC’s policies.
But Justice Sonia Sotomayor fought the analogy. She said universities’ administrators are looking at whether a minority student came from a disadvantaged school, faced and overcame discrimination or came from a family without significant resources. “What the schools are doing is looking at all the factors to try to put the students at the start as equals,” she said.
Justice Ketanji Brown Jackson, the court’s first Black female justice, said she worried that if a “university can take into account and value all of the other background and personal characteristics of other applicants, but they can’t value race” it has the “potential of causing more of an equal-protection problem than it’s actually solving.”
She offered the hypothetical of a student who could write an essay about why it was important to be the fifth generation of his family to attend UNC and compared it to a Black student who would like to offer a different reason for attending: “My family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution.”
(Jackson recused herself from the Harvard case because she was a board member at her alma mater and one of her daughters attends the college.)
College students on why they’re for and against affirmative action
Several conservative justices repeatedly returned to the question of when — if ever — the consideration of race would no longer be necessary in college admissions. The justices pointed to the majority opinion in Grutter v. Bollinger from 2003 in which Justice Sandra Day O’Connor’s opinion said racial preferences were not likely to be needed in 25 years.
“What if it continues to be difficult in another 25 years” to create a diverse student body, Justice Amy Coney Barrett asked Park. “So what are you saying when you’re up here in 2040? Are you still defending it like this is just indefinite? It’s going to keep going on?”
In response, Park said the Grutter opinion requires “aggressive and enthusiastic adoption of race-neutral alternatives,” which university officials say have so far not been sufficient to achieve diversity on campus. “It’s a dial, not a switch. And the progress that we’ve made since Grutter has shown that at the University of North Carolina, we have dialed it down substantially.”
Roberts was unconvinced. “I don’t see how you can say that the program will ever end,” he said.
At times, the justices seemed to be talking more to one another than questioning the lawyers. Justice Elena Kagan possibly had her seatmate, Justice Brett M. Kavanaugh, in mind when she asked Cameron T. Norris, the lawyer representing the challengers to Harvard’s policy, whether a judge who wants a diverse set of clerks can have race in mind when making hiring decisions.
Kavanaugh has prided himself on such hiring, and his clerks say only three of the 20 he has hired at the Supreme Court are White men.
“The question is, when race-neutral means can’t get you there, don’t get you there, when you’ve tried and tried and they still won’t get you there, can you go race-conscious?” she asked.
“I don’t believe so, Justice Kagan,” Norris answered.
As justices tackled broad questions in the UNC case, much of the Harvard case was more specific to allegations about discrimination against Asian Americans.
Alito brought up admissions data that the challengers said shows Asian Americans are unfairly penalized when Harvard rates them on personal character traits such as integrity, courage, kindness and empathy.
“Asian student applicants get the lowest personal scores of any other group,” Alito said. “What accounts for that?”
Waxman sought to play down any “slight numerical disparity” that the data showed and said the so-called personal ratings are not a major part of the process.
“It doesn’t make a statistical difference,” Waxman said.
“If it doesn’t matter, why do you do it?” Alito countered.
Waxman, Prelogar and Ryan all reminded the court that district judges had held extensive trials in both cases and had found no discrimination. But by the end of the tough questioning, Prelogar and Waxman urged the court just to send the cases back for more consideration rather than overturning precedent.
The justices also debated whether the equal protection clause of the 14th Amendment means the Constitution must be colorblind.
Challengers say that under the equal protection clause, government-run universities like UNC cannot use race as a factor in admissions decisions. Harvard is not subject to that constitutional clause, but must adhere to Title VI of the Civil Rights Act of 1964. That statute prohibits racial discrimination, exclusion or denial of benefits under “any program or activity receiving Federal financial assistance.”
Harvard, a private institution, is subject to Title VI because it receives millions of dollars in federal grants and enrolls students who pay in part with federal financial aid. UNC, a public university, is covered by both the Constitution and Title VI.
The cases are Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. President and Fellows of Harvard College.
Amy B Wang, Susan Svrluga and Perry Stein contributed to this report.