Overturning the court’s precedent that race can be a factor among many in making admissions decisions would have “profound consequences” for “the nation that we are and the nation that we aspire to be,” said Attorney General Elizabeth B. Preloger to the judges.
“The negative consequences would reverberate through almost 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 claims by lawyers representing the schools that the end was near for the use of race-conscious policies. Under repeated questioning, these lawyers admitted that they could not give 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, who represents Students for Fair Admissions, said that allowing the use of race in higher education was an aberration among the court’s rulings that should be rejected.
“Whatever factors the government may use to decide which juries to sit on, who you may marry, or which public schools our children may attend, skin color is not one of them,” he said.
It was the most polarizing hearing of the term so far, and the extensive debate represented an extraordinary investment of time for the court, with arguments typically lasting over an hour. The courtroom was packed for the UNC case, which was heard first, and at least three of the judges’ spouses — Jane Roberts, Virginia “Ginni” Thomas and Patrick Jackson — were in attendance.
The court has previously narrowly upheld affirmative action. But the court’s newfound conservative supermajority showed last term that it is not afraid to change 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 on his rejection of the goal of racial diversity in the student body, which 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 that means,” Thomas told North Carolina Attorney General Ryan Y. Park.
When Park tried to explain the educational benefits of diversity, Thomas, who is the second black judge to sit on the court, responded that he didn’t “put much stock in it because I’ve heard similar arguments in favor of segregation.”
Chief Justice John G. Roberts Jr., who often tries to play a moderating role among conservatives seeking to move the law quickly, indicated that the use of race can be an exception.
Roberts has previously written the court’s conservative opinions in cases limiting the Voting Rights Act and the use of race to make public school student assignments. In a heated exchange with Harvard’s lawyer, he worried about a system in which a student would have better odds of admission “based only on” skin color.
After repeated questions, attorney Seth 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 admissions to Harvard,” Roberts said, voice rising.
That may be the deciding factor, Waxman replied, “just as it will be tipped to be an oboist in a year when the Harvard Radcliffe Orchestra needs an oboist.”
Roberts quickly shot back: “We weren’t fighting a civil war over oboe players. We were fighting a civil war to eliminate racial discrimination,” he said. “And that’s why it’s a cause for great concern. I think it’s important for you to state whether assigning credit solely based on skin color is based on a stereotype when you say this brings a diversity of viewpoints. It may not give different views at all on a particular matter.”
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’s going to start five yards closer to the finish line,” Alito told attorney David Hinojosa, who represents students defending UNC’s policies.
But Justice Sonia Sotomayor fought the analogy. She said university administrators look at whether a minority student came from a disadvantaged school, faced and overcame discrimination or came from a family without significant resources. “What schools do is look at all the factors to try to put students at the start as equals,” she said.
Justice Ketanji Brown Jackson, the court’s first black female justice, said she was concerned that if a “university can consider and value all other applicants’ other backgrounds and personal characteristics, but they can’t value race,” it has ” potential to cause more of an equal protection problem than it actually solves.”
She offered the hypothetical of a student who could write an essay about why being the fifth generation of her family to attend UNC was important and compared it to a black student wanting to give another reason to attend : “my family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to participate in 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 is currently in college.)
University students on why they are for and against affirmative action
Several conservative justices repeatedly returned to the question of when — if ever — considerations of race would no longer be necessary in college admissions. The judges pointed to the majority opinion in Grutter v. Bollinger from 2003, when Justice Sandra Day O’Connor’s opinion said racial preferences probably wouldn’t be necessary in 25 years.
“What if it’s still going to be difficult in another 25 years” to create a diverse student body, Judge Amy Coney asked Barrett Park. “So what do you say when you’re up here in 2040? Are you still defending it like it’s just indefinite? It’s going to continue?”
In response, Park said Grutter statement calls for “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 disc, not a switch. And the progress we’ve made since Grutter has shown that we at the University of North Carolina have turned it down considerably.
Roberts was not convinced. “I don’t see how you can say the program will ever end,” he said.
At times the judges seemed to be talking more to each other than questioning the lawyers. Justice Elena Kagan likely 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 justice who wants a diverse set of clerks might have race in mind , when he makes employment decisions.
Kavanaugh has been proud of such hiring, and his officials say only three of the 20 he has appointed to the Supreme Court are white men.
“The question is, when race-neutral means can’t get you there, won’t get you there, when you’ve tried and tried and they still won’t get you there, can you become race-conscious?” she asked.
“I don’t think so, Justice Kagan,” Norris replied
As the justices addressed broad issues in the UNC case, much of the Harvard case was more specific to allegations of discrimination against Asian Americans.
Alito brought admissions data that the challengers claimed show that Asian Americans are unfairly penalized when Harvard evaluates them on personal traits such as integrity, courage, kindness and empathy.
“Asian student applicants get the lowest personal scores of any other group,” Alito said. “What caused it?”
Waxman tried to downplay any “small numerical difference” the data showed, saying the so-called personal ratings aren’t a big part of the process.
“It doesn’t make a statistical difference,” Waxman said.
“If it doesn’t matter, why are you doing it?” Alito responded.
Waxman, Prelogar and Ryan all reminded the court that district judges had held extensive trials in both cases and had found no discrimination. But at the end of the tough questioning, Prelogar and Waxman urged the court to just send the cases back for more consideration rather than overturn precedent
The justice 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, state-run universities like UNC cannot use race as a factor in admissions decisions. Harvard is not subject to the constitutional clause, but must comply with Title VI of the Civil Rights Act of 1964. This 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 scholarships and enrolls students who pay in part with federal financial aid. UNC, a public university, is covered by both the Constitution and Title VI, which incorporates Title VI equal protection standards.
The cases are Students for Fair Admissions v. University of North Carolinaand Students for Fair Admissions v. President and Fellows of Harvard College.
Amy B Wang, Susan Svrluga and Perry Stein contributed to this report.