The Supreme Court on Monday waded deeply into thorny issues of race, with the court’s Republican-appointed justices expressing skepticism over schools’ use of racial box-checking to promote enrollment of Black or Hispanic students.
Harvard University and the University of North Carolina, the schools whose policies were before the justices, said racial preferences remain crucial to promote the kind of diversity the schools want to foster to achieve what they see as the full educational experience.
The court’s Republican appointees said the country is decades into its experiment with racial preferences and there is little sense that schools are making progress or have a path to wind them down.
“How do you know when you’re done?” asked Justice Amy Coney Barrett. “What is the end point?”
The case comes to the court amid a searing national debate over race and identity.
It pits competing views of more than a century of civil rights law and whether iconic legislation such as the Constitution’s equal protection clause requires a colorblind approach or rather envisions affirmative moves to promote Blacks or other minorities who struggle to attain admission.
“The question is, when race-neutral means can’t get you there, don’t get you there, tried and tried and they still don’t get you there, can you go race-conscious?” said Justice Elena Kagan, an Obama appointee to the court.
The group challenging Harvard and UNC, in separate cases, is Students for Fair Admissions, which brought a new wrinkle to the debate by using Asian American plaintiffs who the group said have joined Whites as losers in the affirmative action process.
“Isn’t that what the case is about? The discrimination against Asian Americans?” Chief Justice John G. Roberts Jr. said in challenging Seth Waxman, Harvard’s attorney.
Students for Fair Admissions asked the high court to overturn a 2003 precedent, the Grutter decision, that said racial preferences were allowed but only as part of a holistic review of an applicant, where race serves as a “plus” factor among many others.
In the key opinion, Justice Sandra Day O’Connor wrote that the racial preferences in question were dangerous to society and shouldn’t last forever. She predicted a 25-year expiration date.
Current Republican-appointed justices on Monday said as that deadline approaches, schools have shown little sense that they are ready to move beyond preferences.
Chief Justice Roberts said schools have trapped themselves because their stated goal of diversity means they will always have to look at race.
“I don’t see how you can say the program ever ends,” he said.
“We think that history shows that these programs can and do end,” countered Ryan Park, North Carolina’s solicitor general. He acknowledged, though, that the school will have to track representation. “There will be some attention to numbers.”
Justice Ketanji Brown Jackson sped to Mr. Park’s rescue by saying Justice O’Connor’s 25-year vision didn’t make sense as a blanket policy, given the different levels of adversity and past discrimination in one state versus another.
“When you give your race, you’re not getting any extra points,” she said.
Justice Sonia Sotomayor said nine states have attempted race-neutral admissions. She said they have seen White admissions rise, usually at the expense of Black admissions.
On the other side of the debate, Justice Clarence Thomas — the only member of the court during the 2003 Grutter case, and one of two Black justices, along with Justice Jackson — wondered about the entire exercise of racial balancing.
“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” he told one of the lawyers defending the schools.
The attorneys struggled for an answer that would satisfy Justice Thomas.
Mr. Park said UNC tries to foster diversity of rural, suburban and urban applicants, military affiliation and religion. He acknowledged there is no box on the application form for religion like there is for race.
Justice Jackson said checking the race box is voluntary for school applicants.
“Do you get a point automatically for checking that box?” she asked the UNC attorney.
“Absolutely not,” Mr. Park said.
Justice Jackson said she worries about the risk of treating people differently by not allowing some applicants to talk about that aspect of their identity.
“Now we’re entertaining a rule in which some people can say the things they want about who they are, and have that valued in the system, but other people are not going to be able to, because they won’t be able to reveal that they are Latino or African American or whatever,” she said. “I’m worried that that creates an inequity in the system with respect to being able to express your identity, and importantly, have it valued by the university.”
Schools that rely on race-based preferences say they use them in the context of a “holistic” approach to decisions as they try to craft diverse student bodies.
The two sides couldn’t agree on how much race mattered to admissions at UNC and Harvard.
By one count, it was only a little more than 1% of decisions at UNC. Other evidence showed that a male Asian-American applicant to Harvard would have a 25% chance of admission based on his credentials, a 36% chance of admission if he were White, a 75% chance of admission if he were Hispanic and a 95% chance if he were Black.
Justice Neil M. Gorsuch repeatedly raised the sordid history of Harvard’s admissions policies, saying the holistic approach began in the early 20th century specifically to limit Jewish admissions.
Mr. Waxman, Harvard’s attorney, acknowledged that history but said it had no bearing on the current approach.
Justice Gorsuch countered that Asian Americans are in a similar position today. He pointed to stories of Asians trying to hide their race on applications, including worrying that their names would give them away as part of the non-preferred race.
The Biden administration weighed in on behalf of the schools, reversing the Justice Department’s stance from the Trump years when it backed the challengers to Harvard.
Solicitor General Elizabeth Prelogar said there must be an endpoint to the use of race but discounted Justice O’Connor’s 25-year framework. She said some institutions have moved beyond race preferences but others still find them necessary.
In particular, she said, race-conscious decisions are critical for the military academies to build a more racially diverse leadership corps. She said that is a critical part of national security.
She and the attorney for Harvard said they do strive for a time when race-based preferences won’t be needed.
“Yes, we are trying. We have tried other things that have helped. Are we there yet? No,” said Mr. Waxman, Harvard’s attorney.
“What is Harvard’s view on how long this will take?” Justice Gorsuch prodded.
Mr. Waxman replied that Harvard “doesn’t have a date,” but he later added, “We are definitely getting close to a termination point.”
Justices on both sides wondered about what the school admissions world would look like after racial preferences.
Justice Brett M. Kavanaugh pondered whether schools could use socioeconomics as a factor, or whether states that use a geographic diversity plan, like taking the top students at each school, would be allowed. He also mused that schools might attempt to favor descendants of slaves or reward a “plus” to an immigrant.
Chief Justice Roberts said applicants might turn to other ways to let schools know their race, such as including references to it in their essays.
Patrick Strawbridge, the lawyer arguing against North Carolina’s admissions policy, said that wouldn’t run afoul of the Constitution because it would be individualized rather than just box-checking.
“Just considering race and race alone is not consistent with the Constitution,” he said.
Justice Kagan said that seemed like an irrelevant distinction.
“The race is part of the culture, and culture is part of the race,” she said. “That’s slicing the bologna awfully thin.”
Justice Sotomayor, who is Hispanic, recoiled from the world she envisioned without racial preferences.
“We’re affecting countless existing programs, we are reducing underrepresented minorities, we are depriving others who are not there of the benefits of diversity, and we’re doing all this because race is one factor among many that is never solely determinative,” she said in a series of questions with Ms. Prelogar. “Seems like a lot to ask.”
Arguments in the two cases stretched across nearly five hours. If the justices were taxed, they didn’t show it.
They were notably attentive, leaning forward in their seats as they engaged with the half-dozen lawyers who presented arguments.
Justice Jackson was on the dais for the arguments over UNC’s policy but did not sit for the Harvard arguments. She had said during her confirmation hearing that she would recuse herself from that case because she sat on Harvard’s board of overseers.
Justice Kagan, who served as dean of Harvard’s Law School from 2003 to 2009, did not recuse.
The cases are Students for Fair Admissions v. President and Fellows at Harvard College and Students for Fair Admissions Inc. v. University of North Carolina. Decisions are expected by the end of June.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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