Justices of the U.S. Supreme Court showed deep divides over race-conscious university admissions while questioning lawyers in cases that could transform college campuses and overturn decades-old precedents.
The court’s conservative majority signaled opposition to allowing schools to take race into account going forward, expressing concern that there would never be a clear end to the consideration of race if existing policies were allowed to continue.
Liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson pressed a lawyer representing a group suing the University of North Carolina and Harvard College. They questioned 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 to Patrick Strawbridge, counsel for Students for Fair Admissions.
The line of interrogation contrasted sharply with that from conservatives on the court, who now hold a 6-3 majority. They questioned the lawyer from the North Carolina Solicitor General’s office about what factors other than race students can put on their applications, whether discrimination can be taken into account and even questioning 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,” Justice Clarence Thomas said, in rebuffing North Carolina Solicitor General Ryan 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.”
Justice Amy Coney Barrett asked if a school could take into account a student who described overcoming prejudice. Strawbridge 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.
The two cases — UNC is being argued first with Harvard to follow — could mean fewer Black and Hispanic students at many of the nation’s most selective universities, an issue that may drive yet another wedge through a divided country. 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.
“Grutter doesn’t say, ‘This is great, we embrace this,” Barrett said. “Grutter says, ‘this is dangerous, and it has to have an endpoint.’”
“I don’t see how you can say that the program will ever end,” Chief Justice John Roberts said. “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. “
Jackson questioned whether the group has standing — meaning whether they have the 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.” She said she was “struggling to understand how race is actually factoring into the admissions process here and whether there is any actual redressable injury that arises.”
Kagan called universities a “pipeline” for leaders in military, business and the law. If the universities aren’t diverse, she said that all of those institutions aren’t going to be racially diverse either.
Affirmative action is common at selective universities, though nine states including California and Florida ban race-conscious admissions at public institutions.
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.
