Supreme Court looks ready to end college affirmative action

A Black woman wearing glasses and a dark jacket smiles as she speaks before microphones

Oct. 31, 2022 Updated 4:02 PM PT

WASHINGTON — The Supreme Court’s conservative majority sounded skeptical of affirmative action during arguments Monday, questioning why universities should be able to continue using race as a factor in deciding who they admit.

The justices were clearly divided as they heard challenges to the admissions policies at Harvard and the University of North Carolina at Chapel Hill.

The six conservatives said the court in the past had upheld race-based admissions policies as a temporary measure, not permanent. In their comments and questions, they said it may be time for such policies to end.

Justice Brett M. Kavanaugh said the court recognized “racial classifications are potentially dangerous and must have an end point.... Are we there yet?” he asked.

Justice Amy Coney Barrett said she too was concerned about “the end point.” She asked an attorney representing UNC, “Would you defend this in 2040?”

“It never ends,” said Chief Justice John G. Roberts Jr., because universities have said that “race matters.”

Justice Neil M. Gorsuch said the Civil Rights Act of 1964 states that universities receiving federal funds may not discriminate based on race or ethnicity. Justices Clarence Thomas and Samuel A. Alito Jr. have been steady opponents of college policies that use race.

But the court’s three liberals argued that affirmative action has been necessary and remains so.

Justice Elena Kagan said the nation’s top universities need racial diversity on campus. These schools are “pipelines to leadership in our society.... I thought that part of what it meant to be an American is that our institutions are reflective of who we are in all our variety.”

Justice Ketanji Brown Jackson strongly defended considering a student’s race as one factor in weighing their applications.

Why would universities consider “all of the other background personal considerations, but not race?” she said.
She said it would be a mistake and maybe discriminatory if the high court barred the use of race entirely. She cited a hypothetical example of two students from North Carolina who apply for admission to “honor my family’s legacy.”

The first student says generations of his family graduated from UNC, and the second says her ancestors were enslaved and “never had a chance to attend this venerable institution.”

“Now, 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,” she said. The first applicant could point to his family legacy as a reason to admit him, while the second would be “bound up with race” and not count, she said.

Boston attorney Patrick Strawbridge, representing those seeking to strike down affirmative action, said students of all races can tell their family’s history, but their race should not decide whether they are admitted or not.

“The question is, is that [race] a basis to make decisions about admission of students who are born in 2003? And I don’t think that it necessarily is,” he replied.

The challengers were asking the court to overturn its past rulings that upheld limited affirmative action in college admissions.

Lawyers for the two universities urged the court to stick with its precedents and preserve affirmative action. They were joined by U.S. Solicitor Gen. Elizabeth Prelogar.

Prelogar said a ruling in favor of the challengers would lead a sharp drop in “racial diversity at many of our nation’s leading institutions,” including corporate America and the nation’s military.

More than 40 years ago, the high court said colleges and universities had a “compelling interest” in having a diverse student body that included Black people, Latinos and Native Americans. And that goal justified using race as a “plus factor” in admissions.

But the court’s conservatives have never agreed with that view of the law. Instead, they have argued the Constitution’s guarantee of “equal protection” as well as the civil rights laws of the 1960s forbid the use of race or ethnicity as a basis for discriminating among students who are seeking admission.

During Monday’s argument, it appeared the six conservative justices would vote against Harvard and UNC because both schools use race in their admissions policies in order to achieve campus diversity. But it was unclear whether the six agree on what comes next.

Can the universities adopt a “race-conscious” policy that seeks to enroll more Black and Latino students by using targeted recruitment and financial aid? Several justices said such a policy makes good sense, even if it is not entirely “race neutral.”

What about relying on essays by students that give extra credit to those who have overcome hardships, including growing up in a low-income neighborhood? That too seemed to have solid support.

The conservative challengers who sued Harvard argued the university should do away with its policy of preferences for children of graduates and big donors — most of whom tend to be white and affluent — and instead devote more time and money to enrolling talented students who come from low-income families, including Black people and Latinos.

Lawyers said Harvard said the university is doing both and does not plan to change.

The justices — conservative and liberal — liked the idea of judging students as individuals through a process that educators call “holistic review.” But they were not entirely in agreement on what that would mean in practice.

The chief justice asked about whether students could seek special consideration if they wrote about their African American heritage.

“If all of a sudden the number of essays that talk about the experience of being an African American in society rises dramatically, will the consequences of that be the same” as giving students credit for being Black, he asked.

Looking ahead, Kavanaugh said the court may struggle to decide what qualifies as a “race neutral” policy.

Both sides in the cases cited the experience of the University of California after the 1996 ballot measure that prohibited using race or ethnicity in admissions.

The liberals noted the enrollment of Black and Latino students fell sharply at UCLA and UC Berkeley, but conservatives said the UC campuses have succeeded in achieving diversity by making extra efforts to recruit and support students who came from families and high schools in lower-income areas.

The justices will meet privately later this week to debate and vote on the outcome in the two cases, Students for Fair Admission vs. UNC and SFFA vs. Harvard. Jackson will participate in the first case only after recusing herself from the second one because she served on Harvard’s board of overseers.

It will probably be many months before they hand down a written decision.