WASHINGTON — Some colleges have credited race-conscious admissions policies with helping construct diverse student bodies — but conservative U.S. Supreme Court justices Monday repeatedly turned to a possible expiration date on these programs.
The high court heard five hours of oral arguments in closely watched lawsuits against Harvard University and the University of North Carolina at Chapel Hill challenging the institutions' race-conscious admissions practices.
Legal experts forecast the Supreme Court, pushed to the right by former President Donald Trump’s three nominees, will strike down decades of legal precedent enabling colleges and universities to account for an applicant’s race if it is one of many factors they consider in the admissions process.
An adverse ruling for UNC-Chapel Hill and Harvard would affect only a narrow band of selective colleges, as most institutions accept a majority of applicants.
Yet higher education leaders have expressed fears that throwing out race-conscious policies would demoralize already historically marginalized applicants. They’ve urged colleges to prepare now for an unfavorable opinion, which seemed all the more likely given the skeptical line of questioning from conservatives on the court Monday.
Those justices repeatedly returned to the question of when race-conscious admissions can end. They cited the majority opinion in a landmark 2003 affirmative action case, Grutter v. Bollinger, in which the Supreme Court preserved race-conscious admissions at the University of Michigan.
Race-conscious policies would be unnecessary in 25 years, former Justice Sandra Day O’Connor wrote in that opinion. However, many scholars consider this an overly optimistic take on race relations in the country, rather than a hard deadline. O’Connor herself has voiced regrets for the line.
Nevertheless, the 25-year figure was what some justices relied on when questioning whether race-conscious policies had run their course.
“I don't see how you can say that the program will ever end," Chief Justice John Roberts said at one point during the proceedings.
Justices critical of race-conscious policies asked whether institutions have made progress diversifying their student bodies over time. As evidence of little progress, they pointed to demographics of Harvard’s student population, which have remained relatively consistent over the years.
Lawyers for both Harvard and UNC-Chapel Hill said they’ve made incremental gains in diversity, arguing that throwing out race-conscious policies would cause blacksliding on these goals. Seth Waxman, one of Harvard’s lawyers, said the institution has affirmed its progress through surveys of college seniors who report having been exposed to new experiences and interactions with students of other races they might not have otherwise had.
Harvard has also done more outreach to groups that help students of low socioeconomic status and invested more in financial aid over decades as ways to bolster campus diversity, Waxman said.
“Yes, we are trying,” Waxman said. “Are we there yet? No.”
'We did not fight a civil war about oboe players'
The specifics at play are slightly different for the private nonprofit Harvard and the public flagship UNC-Chapel Hill, though the lawsuits strike at both institutions’ race-conscious practices and what the universities describe as a holistic approach to admissions.
Students for Fair Admissions, or SFFA, an anti-affirmative action legal organization, alleges UNC-Chapel Hill has run afoul of the 14th Amendment's Equal Protection Clause by favoring Black and Hispanic applicants.
Harvard, the group says, has discriminated against Asian American applicants, violating a federal civil rights law. The cases were bundled together but then broken apart to allow the court's newest justice, Ketanji Brown Jackson, to participate in the one concerning UNC-Chapel Hill. Jackson was once part of a Harvard board and recused herself in that case.
Lower courts have ruled the two universities did not break from the Supreme Court’s precedent that race can be narrowly applied in admissions.
But at times during Monday’s arguments, conservative justices seemed to be trying to bait lawyers for the universities into admitting race was a deciding factor.
It can be in some circumstances, Waxman conceded, just as if an oboe player might be admitted if Harvard needed one in its orchestra.
“We did not fight a civil war about oboe players,” Roberts said in retort.
When UNC-Chapel Hill was arguing its case, Justice Samuel Alito presented a metaphor of runners at a starting line in a race. If one of the athletes were allowed to start ahead of the others, then they would have an advantage, Alito said, likening this to the university favoring a Black applicant ahead of others.
Jackson took issue with this, saying race-conscious policies helped already disadvantaged applicants — those who began the race far behind the figurative starting line.
She was one of three justices who offered impassioned defenses of race-conscious policies. Jackson said colleges don’t merely see if a student has checked the box of a certain race and automatically admit them.
Justice Elena Kagan took a lawyer for SFFA to task, saying the group’s argument could be summed up as saying that diversity doesn’t matter. Kagan questioned the lawyer, Cameron Norris, as to whether hospitals serving a diverse set of patients should be treated by diverse doctors, or if that mattered.
Some of the justices asked the parties to define diversity and how the universities gauged it.
Ryan Park, North Carolina's solicitor general representing UNC-Chapel Hill, told Justice Clarence Thomas that diversity “reduces groupthink.”
Thomas seemed to disagree, saying he’s “heard similar arguments in favor of segregation."
Conservatives on the court appeared incredulous that institutions could measure diversity without teasing out exact shares of students of different races.
Racial quotas are illegal under past Supreme Court rulings.
Higher ed groups support universities' practices
Prominent higher education groups have been steadfast in their support for race-conscious admissions. Diversity can’t be broadly quantified, Peter McDonough, vice president and general counsel for the American Council on Education, said in a phone call Monday. ACE is the higher education sector’s top lobby.
Diversity at one institution might look far different than at another, McDonough said.
“And what is sufficient, appropriate diversity in 2022, could be a different answer in 2032,” he said.
McDonough said logic should lead the justices to see race as but one factor in an array of holistic admissions. Still, he said he’s uncertain how they will rule.
The high court could deliver a sweeping dismissal of race-conscious admissions, barring it among all colleges. Or it could develop a more narrow ruling that would require UNC-Chapel Hill or Harvard to change their policies.
Waxman, Harvard’s lawyer, and Solicitor General Elizabeth Prelogar, who was siding with the institutions on behalf of the U.S. government, said they were open to justices sending the case back to the lower courts if they felt they misinterpreted the university’s practices.
A ruling will likely come toward the end of June, as is often the case with major decisions.
This will be the first time the Supreme Court has ruled on race-conscious policies since 2016, when it narrowly upheld the admissions program at the University of Texas at Austin. SFFA also brought that lawsuit on behalf of Abigail Fisher, a White student who claimed the university denied her admission because of her race.