Affirmative action: Supreme Court signals skepticism of race-conscious college admissions

• Experts are watching Chief Justice John Roberts and the court's other conservatives.
• The cases could have deep implications for diversity on campuses and in the workplace.

WASHINGTON – The Supreme Court's conservative majority signaled deep skepticism Monday over the use of race-conscious admissions at American colleges in one of the most controversial issues to come before the court this year, questioning the boundaries of such efforts and whether they are needed to ensure diversity. 

At issue are policies at Harvard College and the University of North Carolina that permit admissions offices to weigh the race of applicants as one of many factors that help decide who will be accepted. Depending on the scope of the court's ruling, the outcome could have profound implications beyond higher education – spilling over into workplace diversity programs and other efforts to confront longstanding discrimination. 

During nearly five hours of at times heated arguments, several of the court's conservatives noted that a 2003 precedent that permits the use of race in admissions had urged that such policies shouldn't be in place indefinitely. How, the court's conservative justices asked, will supporters of the policies determine whether the goals had been reached? 

"I don't see how you can say that the program will ever end," said Chief Justice John Roberts, who has opposed race-conscious policies in the past. "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."

In arguments later in the day dealing specifically with Harvard, Associate Justice Samuel Alito pressed a lawyer representing the institution about how it considers prospective Asian American students. Part of the claim from the anti-affirmative action group that brought both lawsuits is that the policies discriminate against Asian American students by giving them lower scores for personal attributes. Harvard's attorney, Seth Waxman, argued that lower courts had rejected those claims.

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Conservative justices pointed to a section of the 2003 Grutter v. Bollinger precedent at issue in the case which included a timeline of 25 years for ending race-conscious admissions – though the parties and outside groups have debated the significance of that suggestion. Still, several of the justices appeared concerned that under the arguments raised by Harvard and UNC, such policies would never end.

"So what are you saying when you're up here in 2040, are you still defending it?" Associate Justice Amy Coney Barrett asked. "Like this is just indefinite?"

Associate Justice Clarence Thomas, who has opposed race-conscious admissions in the past, pressed the attorney representing North Carolina for a definition of diversity and its benefits.

"I've heard the word 'diversity' quite a few times and I don't have a clue what it means," Thomas said. "It seems to mean everything for everyone." 

Ryan Park, arguing on behalf of UNC, said that diversity "reduces groupthink" and "leads to a more efficient outcome" in seeking truth.

"I don't put much stock in that," Thomas said, "because I've heard similar arguments in favor of segregation." 

As a majority of the court appeared prepared to revisit decades worth of the court's precedents on affirmative action, the liberal justices defended the need for race-conscious policies.

"I thought that part of what it meant to be an American and to believe in American pluralism is that, actually, our institutions are reflective of who we are as a people in all our variety," Associate Justice Elena Kagan said.

Associate Justice Ketanji Brown Jackson said she worried a win for the plaintiffs would mean colleges could consider "all of the other background and personal characteristics of other applicants, but they can't value race."

Alito offered a hypothetical where an immigrant from an African country moves to a rural and mostly white part of North Carolina and describes in an admissions essay how he or she had to confront a different culture. Wouldn't that be permissible, Alito asked. 

Patrick Strawbridge, representing the anti-affirmative action group, said it probably would be permitted.

"Because the preference in that case is not being based upon the race, but upon the cultural experiences," Strawbridge said.

That prompted a quick response from Kagan.

"Race is part of the culture and the culture is part of the race, isn't it?" Kagan said. "I mean, that's slicing the bologna awfully thin."

Years in the making, the Harvard and UNC litigation arrives at the Supreme Court as the nation continues to wrestle with the fallout from the decision in June to overturn Roe v. Wade and end the constitutional right to abortion. The two cases are among several this term that require the court's 6-3 conservative majority to confront the fraught issue of race in America as well as questions about the extent to which the government may consider race to remedy discrimination.

Because of that, the cases are arguably the closest watched this term. A crowd of several hundred people gathered outside the Supreme Court more than hour before the arguments got underway – most of whom appeared to be in support of the universities.

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Dozens of people lined up outside the court for the opportunity to hear the arguments in person – some of whom arrived the night before. Those speaking in favor of using race in admissions were the most prominent demonstrators. They carried signs that read "#defenddiversity" and "Asian Americans for Affirmative Action." When a speaker mentioned Edward Blum, the advocate who organized the litigation, the crowd jeered.

Matthew McGann, dean of admissions at Amherst College, was one of those who arrived Sunday night. By Monday morning, he was the second-in-line to get into the court, but he and others had started listening to the arguments on their phones.

McGann had listened to the arguments in these cases when they were before a federal trial judge in Massachusetts. He said race is just one of many factors that Amherst considers when building its class of just about 470 students. Considering race allows the liberal arts college to, “achieve an educational community where diversity works to the benefit of the education of all students,” he said. 

Madison Trice, 23, spoke in defense of affirmative action at a rally held outside the court. Trice, a member of Harvard’s class of 2021, has also previously testified for the National Association for the Advancement of Colored People in its 2018 amicus brief. She said she felt confident that, "race conscious admissions is what allowed me to be seen for my work as opposed to negating my work."

And Trice said she valued the diverse community she found at Harvard. She said she worried future generations of students wouldn’t have the same opportunity.

"It was really beautiful to me getting to share my identity in a space where so many people had so many different backgrounds," Trice said. "There’s always the fear that won’t continue."

Few people opposed to the use of race in admissions spoke outside the court on Monday, though one person did display a sign reading, “End Affirmative Discrimination Now."

The two cases present roughly the same question: whether the Supreme Court should overturn a 2003 precedent that allowed the University of Michigan Law School to consider race as one factor in its admissions process. In an opinion by Associate Justice Sandra Day O'Connor, the court reasoned the school had a compelling interest in ensuring a diverse campus and that the way it considered race – using it only as a "plus factor" in an otherwise individualized assessment – did not violate the 14th Amendment's equal protection clause.  

Assuming the court rules against Harvard and UNC, it could rule broadly by holding universities don't have a compelling interest in diversity at all – a sweeping conclusion that could have widespread impact. Or it could walk a more narrow path: Upholding the importance of diversity but deciding that the way Harvard and University of North Carolina meet that goal is problematic. 

The justices engaged in an extended debate on Monday about the impact on the diversity of a class without some consideration of race in the admissions process. The lawyer for the anti-affirmative action group, Students for Fair Admissions, denied that African American representation would "plummet" if it won.

"All I see in your models is that we step backwards we don't step forward," Associate Justice Sonia Sotomayor said. 

Strawbridge countered that UNC hadn't demonstrated that there would be a dramatic reduction that would harm a school's interest in a diverse class.

Attorneys for the colleges and the Biden administration, who have so far been successful in lower federal courts, faced a tougher audience at the nation's highest court. Roberts, often the most likely conservative justice to side with the court's liberals, has repeatedly signaled his opposition to race-based decision-making in other contexts. So, too, have Thomas and Alito. 

The two cases – one involving the nation's oldest private college and the other its oldest public college – had been merged but were later split to accommodate Jackson. The newest justice announced during her confirmation hearing in March that she would recuse herself from the Harvard case because she had previously served on the university's board of overseers.  

Jackson took part in the UNC case. 

The Boston-based U.S. Court of Appeals for the 1st Circuit ruled in 2020 that Harvard permissibly used race under that 2003 precedent. A U.S. District Court in North Carolina ruled in favor of the university there.

Though the questions raised by the litigation are limited to higher education, experts say that a broad ruling that curbs affirmative action on American campuses could have a ripple effect on diversity and inclusion programs that have proliferated in the private sector, especially since the emergence of the Black Lives Matter movement.      

Roberts peppered Waxman with questions about the circumstances under which race is the deciding factor for admissions or rejection and whether it isn't discriminatory to assume an African American applicant, for instance, will have a perspective so different from a white applicant that it adds an educational benefit.

"Race, for some highly qualified applicants, can be the determinative factor just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip."

"We did not fight a civil war about oboe players," Roberts shot back. "We did fight a civil war to eliminate racial discrimination and that's why it's a matter of considerable concern."

A decision is expected by June.