Most Supreme Court justices seemed receptive on Oct. 31 to a student group’s argument that racially discriminatory admissions policies at U.S. colleges are unconstitutional and must be struck down.
The Biden administration countered that such policies should be allowed to continue indefinitely because they promote diversity, which it claims benefits the nation.
Although left-wing activists such as advocates of Marxist-derived critical race theory contend that race-conscious policies are essential to dismantle the systemic racism they say pervades the American experience, critics say using race in the college admissions process is both anachronistic and wrong.
The use of race-based criteria by institutions of higher learning in the admissions process isn’t popular. Pew Research Center and Gallup surveys show that nearly 75 percent of Americans of all races “do not believe race or ethnicity should be a factor in college admissions.”
Critics cite then-Supreme Court Justice Sandra Day O’Connor, who believed the policy was a temporarily necessary evil that must eventually end.
“We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote in Grutter v. Bollinger (2003).
Making race-focused admissions decisions is “dangerous,” O’Connor wrote, calling it a “deviation from the norm of equal treatment.” Such programs must “be limited in time,” she said, adding that “all governmental use of race must have a logical end point.”
Justice Ketanji Brown Jackson recused herself from the Harvard case because of her close ties to the school. Justice Elena Kagan didn’t recuse herself from the Harvard case even though she was dean of Harvard Law School from 2003 to 2009.
The two back-to-back hearings that went on for close to five hours dealt with two cases, Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College, court file 20-1199, and SFFA v. University of North Carolina (UNC), court file 21-707. Harvard and UNC are, respectively, the oldest private college and the oldest public college in the United States.
SFFA counsel Patrick Strawbridge told the justices that “racial classifications are wrong.”
“That principle was enshrined in our law at great cost following the Civil War,“ he said. ”A century of resistance to race neutrality followed, but this court’s landmark decision in Brown finally and firmly rejected the view that racial classifications have any role to play in providing educational opportunities.”
Strawbridge was referring to Brown v. Board of Education, the landmark 1954 decision in which the court found state laws mandating racial segregation in public schools were unconstitutional.
Since Brown, the court has “broadly enforced” the Constitution’s ban on racial classifications, the lawyer said.
“Whatever factors the government may use in deciding which jurors to sit, who you may marry, or which primary schools our children can attend, skin color is not one of them.”
But the ruling in Grutter, which upheld such classifications in college admissions, is “a glaring exception to this rule” that should be overturned because it is “grievously wrong,” Strawbridge said.
In the name of diversity, it justifies racial classifications that contradict “the Fourteenth Amendment’s guarantee of equal treatment” and relies on “stereotypical assumptions that race is necessarily a proxy for one’s viewpoint.”
Grutter encourages college applicants “to conceal their race” and hurts admitted students because people assume “race played a role in their admission,” Strawbridge said.
Jackson pushed back against Strawbridge, downplaying the role of race in UNC admissions.
“When you give your race, you’re not getting any special points,” she said. “It’s being treated just on par with other factors in the system. No one’s automatically getting in because race is being used.”
Strawbridge replied that some applicants are being hurt because “UNC gives racial preferences to African Americans, to Hispanic Americans, and to American Indians. It does not give ... racial preferences to white applicants and to Asian applicants.”
Chief Justice John Roberts said Asian Americans “are the people who are discriminated against.”
Kagan suggested that removing racial criteria would be unfair to “people who have been kicked in the teeth by our society for centuries.”
North Carolina Solicitor General Ryan Park told the justices that UNC’s race-conscious policies seek “to fulfill Brown’s vision by assembling a student body that is diverse ... including race, but also social class, geography, military status, intellectual views, and much more.”
“This learning environment helps us seek truth, build bridges across students of different backgrounds, and, critically here, equip students with the tools needed to function effectively as citizens and leaders in our complex and increasingly diverse society,” Park said.
A skeptical Justice Clarence Thomas told Park, “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”
Justice Amy Coney Barrett said Grutter held that “racial classifications are so potentially dangerous” that they must have “a logical end point ... reasonable durational limits, [and] sunset provisions.”
“When does it end?” she said.
SFFA attorney Cameron T. Norris said Harvard is discriminating against Asian Americans the same way the school discriminated against Jews in the 1920s.
This is “shameful but it’s a predictable result of letting universities use race in highly subjective processes,” Norris said.
“For competitive applicants, checking the right racial box is an anvil on the admissions scale, worth the same as ultra-rare achievements like winning a national championship,” he said.
“This court should admit that it was wrong about Harvard, wrong about Grutter, and wrong about letting the poison of racial classifications seep back into education.”
David G. Hinojosa, a lawyer for students who favor racial admissions criteria, said the court “must stand firm in its commitment to ensuring racial equality and equal opportunity” by affirming existing precedent that will help to build “a true democracy.”
U.S. Solicitor General Elizabeth Prelogar told the justices that “student body diversity is a compelling interest that can justify limited consideration of race in university admissions.”
“When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens, and better leaders,” she said, adding that the same principle is also “a critical national security imperative.”
“Our armed forces know from hard experience that when we do not have a diverse officer corps that is broadly reflective of a diverse fighting force, our strength and cohesion and military readiness suffer.
“Overruling Grutter would have devastating effects on our nation’s efforts to move ever closer to a more perfect union where our nation’s diversity is a source of its greatest strength. And I think the court should not take the destabilizing step of overruling precedent here.”
Norris said Harvard “is not diverse at all.”
Apart from racial statistics, “9 percent of incoming freshmen at Harvard are conservatives. Harvard is 82 percent wealthy. There’s 23 rich students for every one low-income student on campus.”
The “compelling interest” mentioned in Grutter isn’t what’s actually being pursued on Harvard’s campus,” Norris said.
Justice Neil Gorsuch pushed back against Harvard lawyer Seth Waxman, who defended the school’s policies.
There are many briefs filed with the court that say Asian American applicants report that “there’s an entire industry to help them appear less Asian on their college applications.”
Waxman replied that Asian Americans benefit from “a holistic admissions policy that considers race as one factor among many.”
Waxman said that for some applicants, race “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.”
Roberts shot back: “We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination, and that’s why it’s a matter ... of considerable concern.”
