Affirmative Action: US Supreme Court Justices Battle Over Race as a Factor in College Admissions

A ruling outlawing race-conscious admissions could mean fewer Black and Hispanic students at many of the top universities in the United States

Hearing arguments in Washington on Monday, the justices showed deep divides -- largely if not completely along ideological lines -- as they heard challenges to affirmative action programs at the University of North Carolina and Harvard College.
By Greg Stohr, Zoe Tillman and Jordan Rubin
October 31, 2022 | 12:28 PM

Bloomberg — Conservative US Supreme Court justices pressed for an end to race-conscious university admissions as they questioned lawyers in cases that could transform college campuses and overturn decades-old precedents.

Hearing arguments in Washington on Monday, the justices showed deep divides -- largely if not completely along ideological lines -- as they heard challenges to affirmative action programs at the University of North Carolina and Harvard College.

The conservatives said that even under a 2003 ruling backing affirmative action, the Supreme Court never envisioned it would last forever.

“What are you saying when you’re up here in 2040?” Justice Amy Coney Barrett asked a lawyer defending North Carolina’s admissions policy. “Are you still defending it, like this is just indefinite, it’s going to keep going on?”

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Affirmative action now is common at selective universities, though nine states including California and Florida ban race-conscious admissions at public institutions. A ruling outlawing race-conscious admissions could mean fewer Black and Hispanic students at many of the top universities -- a point the court’s outnumbered liberals tried to drive home as they focused on the impact across society.

“In your view, it really wouldn’t matter if there was a precipitous decline in minority admissions African American, Hispanic one or the other,” Justice Elena Kagan said. She described universities as the “pipelines to leadership in our country.”

But the court’s conservatives suggested they were more interested in finding an end date for what some of them suggested they viewed simply as racial discrimination.

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‘Not Going to Stop’

“I don’t see how you can say that the program will ever end,” Chief Justice John Roberts told North Carolina Solicitor General Ryan Park. “Your position is that race matters because it’s necessary for diversity, which is necessary for the sort of education you want. It’s not going to stop mattering at some particular point, you’re always going to have to look at race because you say race matters to give us the necessary diversity.”

Justice Clarence Thomas questioned the very definition of diversity.

“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Thomas said in rebuffing Park’s effort to explain the education benefits of diversity. Thomas said he didn’t “put much stock in that because I’ve heard similar arguments in favor of segregation too.”

Park replied that the court had defined diversity as “a broadly diverse set of criteria that extends to all different backgrounds and perspectives and not solely limited to race.”

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Advocates say affirmative action creates diverse learning environments, benefiting students of all races, while critics say universities are simply engaging in racial discrimination.

The universities are fighting lawsuits by Students for Fair Admissions, an anti-preferences organization that says its members include unsuccessful applicants to both schools. Run by former stockbroker Edward Blum, the group seeks to overturn decades-old Supreme Court precedents that let universities consider race to help create a diverse student body.

Racial-preference opponents are trying to take advantage of a Supreme Court that has become more conservative since a 2003 decision known as Grutter v. Bollinger reaffirmed that universities can take race into account. But conservatives questioned whether there should be an “endpoint” to the preference policies, a sign they may be considering overturning precedents.

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“Grutter doesn’t say, ‘This is great, we embrace this,” Barrett said. “Grutter says, ‘this is dangerous, and it has to have an endpoint.’”

Slicing Baloney

Barrett asked if a school could take into account a student who described overcoming prejudice. Patrick Strawbridge, counsel for Students for Fair Admissions, said they could, because the act of overcoming discrimination is “separate and apart” from race.

Kagan asked if there were other experiences besides racial discrimination that would be allowed. Strawbridge offered examples of an Asian American student who took an interest in their family’s country of origin or who was involved in extracurricular activities related to their cultural community. Kagan then questioned Strawbridge’s attempt at separating culture from race.

“That’s slicing the baloney awfully thin,” Kagan said.

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Kagan and fellow liberals Sonia Sotomayor and Ketanji Brown Jackson pressed Strawbridge over his assertion that universities are using race as the determinative factor in admissions and asked whether it would be a problem if Black and Hispanic admissions plunged.

Jackson said the challengers’ approach might mean that a White applicant to UNC could point to generations of family members who attended the university but a Black applicant couldn’t discuss ancestors who were barred from attending because of slavery and racial discrimination.

“As I understand your ‘no race conscious’ admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count,” Jackson said.

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Jackson questioned whether the group has standing -- that is, the legal right to bring their challenge.

Jackson asked whether there was a “concrete, particularized injury that would give the members of your organization standing to challenge the use of race in this context.”

The cases are Students for Fair Admissions v. President and Fellows of Harvard College, 20-1199, and Students for Fair Admissions v. University of North Carolina, 21-707.

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