The Supreme Court delved deeply into the thorny issue of race on Monday, with GOP-appointed justices expressing skepticism about schools’ use of racial testing to help enroll black or Hispanic students.
Harvard University and the University of North Carolina, the schools whose policies were before the justices, said racial preferences remain a critical tool in promoting the kind of diversity schools want to foster in order to achieve what they see as a complete educational experience.
But Republican court officials said the country has been experimenting with racial bias for decades, and there’s little sense that schools are making progress or that there’s a way to turn it around.
“How do you know you’re going to finish?” Judge Amy Connie Barrett asked. “What’s the end point?”
The case comes to trial amid a heated national debate about race and identity.
It pits competing views on more than a century of civil rights laws and whether landmark legislation like the Constitution’s Equal Protection Clause requires color-blindness or rather provides affirmative action to advance blacks or other minorities struggling to gain entry.
“The question is, if race-neutral means can’t get you there, won’t get you there, have tried and tried, and they still don’t get you there, can you go race-conscious?” – said judge Elena Kagan, appointed by Obama to the court.
The group challenging Harvard and UNC in separate cases is Students for Fair Admissions, which has brought a new spin to the debate by using Asian plaintiffs, who the group says have joined whites as losers in the affirmative action process.
“Isn’t that what it’s all about? Discrimination against Asian Americans?” Chief Justice John G. Roberts Jr. said, challenging Seth Waxman, a Harvard lawyer.
Students for Fair Admissions asked the Supreme Court to overturn a 2003 precedent, the Grutter decision, which said racial bias is permissible, but only as part of a holistic review of an applicant, where race acts as a “plus” factor among many others.
In the lead opinion, former Justice Sandra Day O’Connor wrote that the racial preferences in question are dangerous to society and should not last forever. She predicted a 25-year shelf life.
But the GOP-appointed judges said Monday that as the deadline nears, the schools have shown little understanding that they are willing to move beyond the benefits.
Chief Justice Roberts said schools are trapped because their stated goal of diversity means they always have to look at race.
“I don’t see how you can say the program will ever end,” he said.
“We think history shows that these programs can and do end,” countered Ryan Park, North Carolina’s attorney general. However, he acknowledged that the school will have to track representation. “There will be some focus on numbers.”
Justice Ketanji Brown Jackson rushed to Mr. Park’s rescue, saying that Justice O’Connor’s 25-year-old vision did not make sense as a general policy, given the varying levels of adversity and past discrimination in one state against another.
“When you race, you don’t get extra points,” she said.
Justice Sonia Sotomayor said nine states have attempted race-neutral recognition. She said they have seen an increase in white admissions, usually at the expense of black admissions.
On the other side of the debate, Justice Clarence Thomas — the only member of the court who sat in Grater’s case in 2003 and one of only two black justices, along with Justice Jackson — questioned the overall racial balance.
“I’ve heard the word ‘diversity’ quite a few times and I have no idea what it means,” he told one of the lawyers defending the schools.
Attorneys struggled to come up with an answer that would satisfy Judge Thomas.
Mr. Park said UNC tries to foster a diversity of rural, suburban and urban applicants, military affiliation and religion. But he admitted that the questionnaire does not have a column for religion, as there is for race.
Judge Jackson said checking the race box for entrants is voluntary.
“Do you automatically get points for ticking?” she asked in North Carolina.
“Not at all,” said Mr. Park.
Judge Jackson then said she was concerned about the risk of treating people differently by preventing some applicants from speaking about that aspect of their identity.
“Right now we’re using a rule where some people can say what they want about who they are and value that in the system, but other people can’t because they can’t show that they’re Latino or African-American or whatever whatever,” she said. “I worry that this creates an inequity in the system in terms of being able to express one’s identity and, importantly, that it is valued at university.”
Schools that rely on racial preferences say they use them in the context of a “holistic” approach to decision-making in an attempt to create a diverse student body.
But the two sides couldn’t agree on how much race matters in admissions to UNC and Harvard.
By one count, this was just over 1% of decisions at UNC, although other data showed that an Asian-American applicant to Harvard with a 25% chance of admission based on his credentials would have a 36% chance of admission if he were white, 75 % chance of admission if he was Hispanic and 95% chance if he was black.
Justice Neil M. Gorsuch repeatedly brought up the sad history of Harvard admissions, saying that the holistic approach began in the early 20th century specifically to limit Jewish admissions.
Mr. Waxman, the Harvard lawyer, acknowledged that history but said it had nothing to do with the current approach.
Justice Gorsuch countered that Asian Americans are in a similar situation today. He pointed to stories of Asians trying to hide their race on applications, including fearing that their names would give them away as part of an underprivileged race.
The Biden administration has come out in favor of the schools, reversing the Justice Department’s stance from the Trump years when it backed Harvard applicants.
Solicitor General Elizabeth Prelogar said the use of race should be the end point, but rejected Judge O’Connor’s 25-year term. She said some institutions have moved beyond racial preferences, but others still see them as necessary.
In particular, she said racially sensitive decisions are critical for military academies to create a more racially diverse leadership corps. She said it was an important part of national security.
But both she and the Harvard lawyer said they are aiming for a time when racial preferences are no longer necessary.
“Yes, we try. We tried other things that helped. Are we there yet? No, said Mr. Waxman, the Harvard lawyer.
“How long does Harvard think it will take?” Judge Gorsuch pushed.
Mr. Waxman replied that Harvard “doesn’t have a date,” but later added, “We’re definitely getting close to a tipping point.”
Justices on both sides wondered what a racially biased school admissions world would look like.
Judge Brett M. Kavanagh weighed in on whether schools could use socioeconomic factors as a factor in whether states would be allowed to use a geographic diversity plan, such as recruiting the best students to each school. He also suggested that schools may try to favor descendants of slaves or reward immigrants with a plus.
Chief Justice Roberts said applicants can look to other ways to communicate their race to schools, such as including references to it in their essays.
Patrick Strobridge, a lawyer opposing North Carolina’s adoption policy, said it would not be unconstitutional because it would be individualized and not simply a background check.
“Simply looking at race and race alone is unconstitutional,” he said.
But Justice Kagan said that was a false distinction.
“Race is part of culture, and culture is part of race,” she said. “These are very thin slices of bologna.”
Justice Sotomayor, a Latina, recoiled from the world she envisioned without racial preferences.
“We’re affecting countless existing programs, we’re cutting underrepresented minorities, we’re denying the benefits of diversity to those who aren’t there, and we’re doing all of this because race is one of many factors that is never the sole determinant ” she said in a series of questions to Ms. Prelogar. “Seems like a lot to ask.”
Arguments in two cases lasted almost five hours, but if the judges were taxed, they did not show it.
They were particularly attentive, leaning forward in their seats as they spoke to the half-dozen lawyers who were presenting their arguments.
Judge Jackson was on the stand Monday for arguments about UNC’s policy, but did not sit for Harvard’s arguments. During her confirmation hearing, she said she would recuse herself from the case because she serves on Harvard’s Board of Overseers.
Justice Kagan, who served as dean of Harvard Law School from 2003 to 2009, did not recuse himself.
These cases are: Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. Decisions are expected by the end of June.
