The conservative-controlled Supreme Court appeared ready to curtail the use of race in college admissions during five hours of oral arguments Monday that focused on what schools can do to encourage a more diverse student body.
The six conservatives on the court sounded skeptical of the admissions programs at Harvard University and the University of North Carolina as they mulled whether to toss a 19-year-old precedent that has allowed those schools to consider race as one of multiple factors in admissions.
The cases are the most prominent of several this term in which the high court will weigh the role of race in federal law. The justices are expected to issue a ruling before the end of the term in June that could upend admissions policies nationwide.
Chief Justice John G. Roberts Jr. and other conservatives on the court frequently pointed to a part of that precedent on affirmative action that said such programs that consider race in admissions should wind down by 2028.
Roberts said the schools have not tried to end those programs in the way the 2003 decision in Grutter v. Bollinger envisioned.
“It’s not going to stop mattering at some particular point,” Roberts said. “You’re always going to have to look at race because you say race matters to give us the necessary diversity.”
Ryan Park, the attorney defending UNC’s admissions policies, responded that colleges will always have an interest in maintaining a diverse campus. The question is “whether race-conscious measures need to be taken in the admissions process to reach our diversity goals.”
Several conservatives, including Justice Clarence Thomas, questioned the university’s idea of “diversity” and challenged the attorneys for both UNC and Harvard to justify their effort seeking it.
“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.”
The court’s three liberals stressed the importance of the use of race as just one part of college admissions decisions. Justice Ketanji Brown Jackson, the newest justice and the first Black woman on the Supreme Court, argued race was one of more than 40 factors that the universities used to assess potential students.
“They’re looking at the full person with all of these characteristics,” said Jackson, who did not participate in the part of the arguments related to the Harvard policy.
Solicitor General Elizabeth Prelogar defended the continued usefulness of race in admissions programs and cautioned that overturning Grutter would “reverberate through every institution in America,” including the U.S. military.
The military relies on a diverse officer corps to help it function better, which means it has to recruit diverse students both through its service academies and ROTC programs, Prelogar said.
And Prelogar pointed to the court’s own work to highlight the message that a lack of diversity can send.
Only two women, including herself, will be among the 27 attorneys who argue cases before the high court in November, even though women are more than half of law school graduates, Prelogar told the justices.
“And I think it would be reasonable for a woman to look at that and wonder, is that a path that’s open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases?” Prelogar said. “When there is that kind of gross disparity in representation, it can matter and it’s common sense.”
Justices Brett M. Kavanaugh and Neil M. Gorsuch questioned whether universities may be able to hold on to their existing preference for nonracial factors, such as admitting children of graduates or a squash team, if a race-neutral admissions model would make the campus more diverse.
In one exchange between Roberts and Seth Waxman, the attorney defending Harvard, Roberts pushed Waxman to say when race may determine whether a student gets into the selective university.
“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,” Waxman said.
Roberts replied: “We didn’t fight a civil war about oboe players,” it was about ending racial discrimination.
Cameron Norris, the attorney arguing the case against Harvard, pointed out to the justices that a simulation of race-neutral admissions at Harvard resulted in a comparably diverse student body without admissions preferences.
That simulation also dropped academic achievement and other measures of the incoming class, which had caused the district court to reject it.
“That’s not sacrificing academic excellence, that’s moving Harvard from Harvard to Dartmouth,” Norris said.
Attorneys arguing for Students For Fair Admissions, the groups that launched the cases, argued the Supreme Court’s 1954 decision in Brown v. Board of Education, which desegregated schools, meant universities could not use race in their admissions.
The group challenged the admissions policies at both universities in district court in 2014. A federal judge and the 1st U.S. Circuit Court of Appeals ruled in Harvard’s favor, finding the admissions policy passed muster. Separately, a district judge sided with UNC in 2020.
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