WASHINGTON — Conservative Supreme Court justices said Monday they are willing to end the explicit consideration of race in college admissions as they weigh in on cases challenging the affirmative action policies at the University of North Carolina and Harvard University.
Members of the court’s conservative majority questioned the legal rationale for allowing the practice and explored the extent to which universities could adopt new “race-neutral” admissions policies aimed at improving racial diversity. However, some judges indicated that they would be willing to allow applicants to discuss their racial identity in some form as part of essays about their experiences, such as examples of overcoming discrimination.
Outnumbered liberal judges defended the use of race in admissions, citing the importance of diversity on campus and the difficulty of achieving that goal without any consideration for race.
Affirmative action, introduced to rectify historical discrimination, has been a controversial issue for years, strongly supported by educational institutions and corporate America as essential to promoting diversity and condemned by conservatives as contradicting the idea that racial equality means all races are equal. are being treated .
The Supreme Court, which has a conservative majority of 6-3, heard back-to-back pleas in the UNC and Harvard cases in cases brought by a group called Students for Fair Admissions, led by conservative activist Ed Blum. A decision will be made at the end of June.
At several points during the nearly five-hour pleadings, conservative judges expressed hostility to explicitly considering race in an application.
“What do you learn from just checking the box?” Justice Samuel Alito asked UNC attorney Ryan Park.
But some conservatives seemed more open to at least some recognition of a candidate’s race as part of the process.
If box-checking isn’t allowed, would it be acceptable for Harvard to “consider what an applicant would say in an essay about confronting discrimination while growing up and how he or she did it?” Chief Justice John Roberts asked Cameron Norris, the attorney challenging Harvard’s policy.
Norris said such expressions of racial identity could be lawfully considered by the university.
Conservative judge Amy Comey Barrett, a former professor at Notre Dame Law School, was among those who seemed to sympathize with what she called a student’s “statement of experience” that dealt with race as opposed to the “box-checking.” ‘ referenced by Alito.
Roberts and Barrett’s questions — and similar comments from another conservative, Judge Brett Kavanaugh — indicated that they were looking at what kind of race-neutral policies aimed at promoting diversity might be considered if the court were to exclude the explicit consideration of race. ends.
Conservative judges seemed skeptical that universities would ever conclude that their diversity goals could be met without regard to race, creating a conflict with the Supreme Court’s own ruling in 2003 that said affirmative action would no longer be necessary after 25 years.
Barrett questioned whether the 2003 ruling was “grossly optimistic” on the assumption that race might no longer need to be considered after the ambitious quarter-century deadline.
“What if there is no end?” she asked.
Conservative judge Clarence Thomas questioned whether universities have a compelling interest in diversity, while fellow Conservative judge Neil Gorsuch expressed concern that the goal of achieving diversity is akin to having racial quotas, which the court had previously banned.
Gorsuch also noted how as part of his explanation of what constitutes a diverse classroom, Harvard includes children of wealthy donors, talented athletes, and those who have parents who attended college. He expressed surprise that Harvard considered it essential to its diversity goals to have a competitive squash team.
“I’m not making it up,” Gorsuch said.
As affirmative action advocates gathered outside the courthouse, the first oral argument over UNC’s policy began with Liberal Judge Sonia Sotomayor questioning challengers’ attorney Patrick Strawbridge about how college administrators can assess candidates from diverse socioeconomic backgrounds without taking into account. to do with race.
“Sometimes race correlates with some experiences and not others,” Sotomayor said. “If you’re black, you’re more likely to be in a low-resource school. You’re more likely to be taught by teachers who aren’t as qualified as others. You’re more likely to be seen as having less academic potential.”
Liberal judge Ketanji Brown Jackson pushed back on Strawbridge’s description of the UNC process, saying race is never considered alone.
“You haven’t demonstrated or shown one situation where they just look at race and infer from those stereotypes and other things. They look at the whole person,” she said.
The university doesn’t consider race “just because someone ticks a box,” she added.
Jackson also questioned whether ending the consideration of race would create new legal problems. For example, she wondered whether it would be discriminatory if black students descended from slaves were not allowed to mention their family backgrounds in their applications, but white students from North Carolina could discuss theirs. While the white applicant “would be able to consider and value his family background,” the black applicant “wouldn’t because his story is tied to his race in many ways,” she said.
Liberal judge Elena Kagan, the former dean of Harvard Law School, vigorously defended the value of racial diversity on campus, saying colleges are “pipelines to leadership in our society.”
The group’s lawyers have asked the judges to… 2003 ruling, Grutter v. Bollinger, in which the court said race could be considered a factor in the admissions process because universities had a compelling interest in maintaining a diverse campus. The legal debate remained unresolved by a broken Supreme Court ruling from 1978, in which the judges banned racial quotas, but left the door open for any consideration of race.
In 2016, the last time the Supreme Court ruled on affirmative action, the judges upheld admissions policy at the University of Texas at Austin by a 4-3 vote with Conservative Judge Anthony Kennedy, who has since retired, and cast the casting vote. from.
The court shifted to the right following the appointment of three conservative judges by former President Donald Trump. The nomination of Jackson by President Joe Biden did not change the bank’s ideological balance as she replaced fellow Liberal judge Stephen Breyer. Since Jackson was previously on Harvard’s board of trustees, she has left that case and will only participate in the North Carolina dispute.
Blum’s group argues that any consideration of race in college admission is illegal under both federal law prohibiting discrimination in education and the equal protection clause of the 14th Amendment to the Constitution. They argue that the UNC admission policy discriminates against white and Asian candidates and the Harvard policy discriminates against Asians. In both cases, lower courts ruled in favor of the universities.
In defending their policies, the universities and their supporters — including the Biden administration, civil rights groups, corporations and former military leaders — argue that excluding someone on the basis of race is completely different from seeking diversity on campus. The universities say race is just one factor considered part of a broad individualized analysis of each applicant.
If affirmative action is ended, those defending the practice say, race-neutral policies aimed at achieving diversity will often fail, leading to a decline in black and Hispanic enrollments. The challengers point to examples in the nine states that already ban the practice as evidence that consideration of race is not essential.