The U.S. Supreme Court鈥檚 conservative majority on Monday signaled its skepticism of race-conscious college admissions policies, but the justices seemed hesitant to issue a sweeping ruling barring all consideration of race in education.
The five-hour argument focused on the particulars of admissions at the University of North Carolina and Harvard University. But K-12 school districts have also faced legal challenges over the consideration of race in admissions, for example in magnet and other selective schools.
Early in the argument, Patrick Strawbridge, a lawyer representing the organization challenging race-conscious admissions, made the point that in place of race, colleges could ask about applicants鈥� experiences, such as where they grew up or their socioeconomic status.
鈥淵ou include all sorts of things that actually lead to broader diversity of viewpoints,鈥� said Strawbridge, arguing on behalf of Students for Fair Admissions. 鈥淭he assumption that race necessarily informs something about anyone鈥檚 qualifications is antithetical to this court鈥檚 precedents and to our Constitution.鈥�
Justice Sonia Sotomayor, who has voted to uphold race-conscious admissions, pushed back.
鈥淪ometimes race does correlate to some experiences and not others,鈥� she said. 鈥淚f you鈥檙e Black, you鈥檙e more likely to be in an underresourced [K-12] school. You鈥檙e more likely to be taught by teachers who are not as qualified as others. You鈥檙e more likely to be viewed as 鈥� having less academic potential.鈥�
Near the very end of the arguments, Justice Elena Kagan cited a key contention that challengers of affirmative action had discussed in their briefs: that the court鈥檚 1954 desegregation decision in sets a colorblind standard.
Strawbridge raised the issue in his opening statement, saying that 鈥渢his court鈥檚 landmark decision in Brown finally and firmly rejected the view that racial classifications have any role to play in providing educational opportunities.鈥�
Kagan, who was recused from the court鈥檚 two most recent cases on affirmative action in education, both involving the University of Texas at Austin, made clear in her comments Monday that she supports race-conscious admissions. She posed the question about the challengers鈥� Brown theory to U.S. Solicitor General Elizabeth B. Prelogar, who was arguing in support of the University of North Carolina and Harvard.
鈥淚 think that argument is wrong in just about every respect,鈥� Prelogar said. 鈥淭here is a world of difference between the situation this court confronted in Brown, the separate but equal doctrine that was designed to exclude African Americans based on notions of racial inferiority 鈥� and the university policies at issue in this case, which 鈥� are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment.鈥�
Sharp challenges from the chief justice
During the arguments in (No. 21-707) and (No. 20-1199), the court鈥檚 more-conservative members expressed their skepticism about the use of race.
Chief Justice John G. Roberts Jr., who has voted against race-conscious admissions and to limit K-12 schools鈥� consideration of race in assigning students to schools, had a sometimes tense exchange with the lawyer defending Harvard鈥檚 admissions program.
After Roberts got Seth P. Waxman to concede that race is sometimes the determining factor for some applicants, Waxman said, 鈥淩ace 鈥� for some highly qualified applicants can be the determinative factor, just as being 鈥� you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.鈥�
鈥淵eah. We did not fight a Civil War about oboe players,鈥� the chief justice responded. 鈥淲e did fight a Civil War to eliminate racial discrimination, and that鈥檚 why it鈥檚 a matter of considerable concern.鈥�
Besides Roberts, Justices Clarence Thomas and Samuel A. Alito Jr. have voted against affirmative action in education for years. There was anticipation for how the court鈥檚 newer members would approach the cases, since Justices Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson have not ruled directly on such issues before either as justices or lower-court judges.
Gorsuch referred several times to Harvard鈥檚 original adoption of a holistic admissions system in the early 20th century at a time it was looking for an indirect way to tamp down enrollment of Jewish students.
Gorsuch suggested Harvard took that approach in the 1920s 鈥渂ecause it wanted to impose a quota on Jewish applicants, but it didn鈥檛 want to [do it] through the front door, so it used diversity as a subterfuge for racial quotas.鈥�
Waxman, a former U.S. solicitor general under President Bill Clinton, said the Jewish quotas were brought about by Harvard鈥檚 then-president and that the university has acknowledged the history and is 鈥渁shamed,鈥� but that legacy has no bearing on Harvard鈥檚 current admissions process.
Gorsuch asked Ryan Y. Park, the North Carolina solicitor general representing UNC, that since the court has said a quota is impermissible, 鈥淗ow can you do diversity without taking account of numbers?鈥�
鈥淲e do so by looking at the individual applicant,鈥� Park said. 鈥淲e do not have some sort of racial target or a target for other diversity metrics, for example.鈥�
Barrett, and other justices, asked repeatedly about a line in Justice Sandra Day O鈥機onnor鈥檚 opinion for the court in the 2003 decision in Grutter v. Bollinger, which upheld a holistic review system that took race into account for admissions to the University of Michigan鈥檚 law school. O鈥機onnor said at the time, 鈥淲e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.鈥�
鈥淲hen is your sunset?鈥� Barrett asked Park. 鈥淲hen will you know? Because Grutter very clearly says this [race-conscious admissions] is so dangerous. Grutter doesn鈥檛 say this is great, we embrace this. Grutter says this is dangerous and it has to have an end point.鈥�
Park said UNC supports a 鈥渄urational limit鈥� on the use of race, but he declined to say when the university would be ready to end such consideration. Waxman, for his part, said Harvard supports the idea of a time limit on affirmative action but 鈥渄oes not currently, based on its data, expect that in 2028 it will have achieved鈥攂een able to use only race-neutral alternatives.鈥�
Kavanaugh, who has called Brown the court鈥檚 鈥済reatest moment,鈥� told Prelogar that he appreciated her statement about the landmark school desegregation decision.
But he asked Park about the challengers鈥� arguments that states where affirmative action in education has been prohibited have shown that racial diversity goals may be met even without race-conscious admissions.
Kavanaugh, referring to arguments by the challengers, noted that in the two decades since Grutter, states such as California, Washington, and Michigan, among others have gone that route 鈥渂ut at the same time produce significant numbers of minority students on campuses.鈥�
Calls for race neutrality versus 鈥榮tanding firm鈥� for racial equality
Jackson, the court鈥檚 newest justice, participated only in the argument in the North Carolina case. A former member of Harvard鈥檚 Board of Overseers, she has recused herself from the Harvard case. Jackson appeared sympathetic to UNC鈥檚 arguments in favor of race-conscious admissions.
How is UNC 鈥渢aking into account race independent of the rest of the information in a holistic review process?鈥� Jackson asked Strawbridge, the lawyer representing Students for Fair Admissions. 鈥淵ou keep saying we object to the use of race standing alone. But, as I read the record and understand [UNC鈥檚] process, it鈥檚 never standing alone, that it鈥檚 in the context of all of the other factors. There are 40 factors about all sorts of things that the admissions office is looking at.鈥�
She referred to the University of North Carolina鈥檚 legacy of excluding Black students for generations, and its being behind other states鈥� flagship universities in achieving racial diversity goals. 鈥淭hat might account for why the sort of 25-year expiration deadline can鈥檛 really be blanketly applied, because we start in different places with respect to how race has been considered to exclude people in our various communities,鈥� she said.
Cameron T. Norris, another lawyer arguing for Students for Fair Admissions, summed up his side鈥檚 position by saying that racial classifications by themselves have harms.
鈥淭hey stigmatize their intended beneficiaries, they increase racial consciousness, which delays the day in which we can move to true racial neutrality,鈥� Norris said. 鈥淎nd they cause resentment by treating people differently based on something they can鈥檛 change that鈥檚 cosmetic and it鈥檚 irrelevant to their ability to get educational opportunities.鈥�
But David G. Hinojosa of the Lawyers鈥� Committee for Civil Rights Under Law, which represents a group of University of North Carolina students and alumni who intervened in that case to support race-conscious admissions, told the justices that the court 鈥渕ust stand firm in its commitment to ensuring racial equality and equal opportunity.鈥�
Citing Brown, Grutter, and other Supreme Court precedents on race in education, Hinojosa said 鈥渢his court has recognized the paramount roles that integrated education and cross-racial interactions play in building a true democracy, where pathways to leadership are visibly open to all qualified candidates.鈥�
A decision in the case is expected by next June.
