Conservative Supreme Court justices skeptical of race-based college admissions

The Supreme Court heard oral arguments for two cases on Monday that challenge race-based admissions policies at Harvard University, the nation's oldest private college, and the University of North Carolina, the nation’s oldest public university.

The plaintiff in both cases, Students for Fair Admissions (SFFA), is asking the court to overturn its precedent Grutter v. Bollinger, which allows the narrow use of race in college admissions decisions. SFFA argues that Harvard’s policy violates Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal funds from discriminating based on race. In the UNC case, SFFA argues that the university’s policy violates Title VI in addition to the 14th Amendment’s guarantee of a person's equal protection under the law, which covers state universities.

The makeup of the Supreme Court changed significantly during the presidency of Donald Trump, resulting in a six-to-three conservative majority.

During oral arguments in the UNC case, some of the conservative justices pointed to an aspect of the 2003 Grutter v. Bollinger decision in what could become the basis for a ruling that ends race-based college admissions. Justice Sandra Day O’Connor’s writing for the majority in the Grutter decision said in part, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Justice Brett Kavanaugh asked SFFA attorney Patrick Strawbridge, “When do you read or do you calculate — to the extent you consider it at all — the 25-year limit?”

“I think the language in Grutter had an aspirational element to it, and it was aspirational for a reason,” Strawbridge replied. “They want the use of race to diminish over time.”

Some of the justices challenged what the end of that timeline would look like if race were no longer a factor in the college admissions process.

Justice Elena Kagan suggested there would be a steep decline in admissions for minorities and expressed her concerns for other implications: “Universities are the pipeline to leadership [in our society].” She said that if universities aren’t diverse, institutions of leadership — such as the military or the law — won’t be diverse either.

Justice Sonia Sotomayor challenged SFFA’s models on how admissions programs would engage in the admissions process without considering race. “Blacks decreased in every one of your simulations,” she said. “All I see in your models is that we step backward, we don’t step forward.”

Another major concern from the liberal justices, including Ketanji Brown Jackson, is that ending affirmative action in admissions processes could “create more of an equal protection problem than it’s solving.” Jackson said that overturning race-based admissions means colleges could consider “all of the other background and personal characteristics of other applicants, but they can’t value race."

The Supreme Court
The Supreme Court is currently considering challenges to affirmative action in higher education. (Jose Luis Magana/AP)

Meanwhile, Justice Clarence Thomas, a longtime critic of race-based admissions, pressed North Carolina Solicitor General Ryan Park, who is defending UNC’s policy, on how diversity benefits education. “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.”

When Park argued that diversity promotes a deeper and richer learning environment and that diverse groups of people perform at a higher level, Thomas replied, “I don’t put much stock in that, because I’ve heard similar arguments in favor of segregation too.”

The conservative justices came back to the idea that a reliance on race needs to end, citing the Grutter ruling. Justice Samuel Alito grilled Park on when diversity would be achieved through these programs. Justice Amy Coney Barrett asked Park, “When is your sunset? When will you know?” She continued, "Grutter says this is dangerous and it has to have an endpoint. And I hear you telling Justice Alito there is no endpoint."

Later in the day, the Supreme Court heard oral arguments in the Harvard case, which Jackson had previously announced she would recuse herself from because she served on the university’s board of overseers. The conservative justices questioned Harvard attorney Seth Waxman on allegations that the school's admissions policies discriminate against Asian American applicants. Waxman rejected the claim.

Nine states already have bans against the use of race for college admissions, according to research from the National Conference of State Legislatures: Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington. Most of those restrictions were put in place by voters through ballot initiatives.

Poll numbers show that majorities of basically every identifiable group (Republicans, Democrats, Blacks, whites, Hispanics, Asian Americans) don’t agree with using racial preferences in college admissions, Jess Bravin, a Supreme Court reporter at the Wall Street Journal, said in an interview with the Yahoo News podcast “Skullduggery.” “If you can overrule Roe v. Wade and move on," Bravin said, "this is relatively small potatoes to [the Supreme Court]. I think this case is a lot easier to envision in some ways them overruling the precedents than Roe was.”

A decision in the two cases likely won’t come until the end of June 2023.