Skepticism on Affirmative Action

Most of the Supreme Court appears impatient for its end. But the justices appointed by Democrats made the case for the practice.

November 1, 2022
A courtroom at the United States Supreme Court, with white columns and red drapes.
(U.S. Supreme Court)

How important were Monday’s Supreme Court arguments on affirmative action?

Matthew L. McGann, dean of admission and financial aid at Amherst College, camped out Sunday night starting at 10:00 p.m. to watch the historic deliberations in person. When the five hours of hearings started at 10:00 a.m. Monday, he wasn’t let in but was wait-listed. He had to wait for some people to leave. They finally did, and he was able to see most of the arguments in the Harvard University case, which followed those about the policies of the University of North Carolina at Chapel Hill. (He listened to audio of the rest of the arguments.)

He attended the district trial nearly four years ago where Harvard won. And he still hopes for another victory.

But many observers would say it’s going to be a long shot when the Supreme Court ultimately rules on the cases next spring. In arguments before the Supreme Court Monday, six justices with a history of opposing affirmative action—and new justices expected to oppose affirmative action—asked questions and offered comments that reflected skepticism about the practice at both universities.

For instance, Justice Clarence Thomas said, “I’ve heard the word ‘diversity’ quite a few times, but I don’t have a clue what it means.”

And he rejected the answer from Ryan Park, who was defending UNC, about the educational benefits of diversity. Thomas said he didn’t “put much stock in that.”

When the U.S. solicitor general, Elizabeth B. Prelogar, said the U.S. service academies practice affirmative action in admissions because the military needs a diverse population, Justice Thomas asked his statement again.

Justice Amy Coney Barrett asked about affinity group housing for Black students and their supporters, even as she acknowledged that UNC Chapel Hill doesn’t offer such housing.

Justice Neil M. Gorsuch posed a hypothetical: What about colleges that could have a diverse student body solely by eliminating preferences for legacy applicants, the children of donors or squash players? His question pointed to other areas where competitive colleges can have their admissions policies criticized.

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And several justices addressed the question of how long affirmative action should be needed. When Sandra Day O’Connor was a justice, she wrote in a 2003 affirmative action case that she imagined it would not be necessary in 25 years. When Justice Barrett asked Park about O’Connor’s statement, he said, “I think it’s a dial, not a switch” and that UNC has already “dialed it down.”

Prelogar said, “I do think eventually” affirmative action will end in higher education.

Chief Justice John G. Roberts said to Park, “I don’t know how you can say the program will ever end. You’re always going to have to look at race because you say race matters.”

Justice Gorsuch also asked about reports that Asian applicants are told by many college counselors to hide their race when they are applying.

And Justice Samuel A. Alito Jr. asked about whether a college’s definitions of race could be “so broad” that they are unconstitutional. He asked why a student from Afghanistan is considered Asian in the same way as students descended from Chinese immigrants.

Three justices—Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor—asked questions that suggested support for affirmative action.

Justice Jackson (who has recused herself from the Harvard case) presented a hypothetical situation on two students applying to UNC. Both had been in North Carolina “for generations, since before the Civil War,” and it was important to both of them to honor their family legacies by attending the university.

The first applicant noted that he would be the fifth generation to graduate from UNC. The second applicant noted that his family members were enslaved and had never had a chance to attend UNC.

“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,” Jackson said. “The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to because his story is in many ways bound up with his race and with the race of his ancestors.”

Justice Kagan, in the discussion of the Harvard case, asked Cameron T. Norris, a lawyer for Students for Fair Admissions, which brought the legal challenges against the two universities, a series of questions about different parts of American society. Should a hospital that serves a diverse community have diverse doctors? Should a judge be able to hire diverse law clerks? If judges can say, “I want a diverse set of clerks,” she asked, why can’t colleges say they want a diverse group of students?

What People Expect to Happen

Analysts in the news media judged Monday’s hearings as going largely as expected. The New York Times headline was “The Justices Seem Skeptical of Affirmative Action Programs.” The Washington Post’s was “Supreme Court Seems Open to Ending Affirmative Action in College Admissions.” The Los Angeles Times said, “Supreme Court’s Conservatives Appear Ready to End College Affirmative Action.”

Edward Blum, the founder and president of Students for Fair Admissions, said in a statement about the day’s events, “It is the hope of a significant majority of Americans of all races that the justices of the Supreme Court will restore the original principles of our nation’s civil rights laws by forbidding race to be a factor in college admissions.”

He added, “Elite universities like Harvard and UNC are diminishing, rather than growing, the power and profundity of American individualism. As individual Americans, we are all minorities.”

But Peter McDonough, vice president and general counsel of the American Council on Education, said “absolutely” that he thought there was a good chance that Harvard and UNC would win the cases.

He noted the oral arguments were originally scheduled for less than three hours and ran for nearly five. The length of time shows “how seriously the justices are taking this.”

McDonough was also encouraged by the discussion about whether someone can earn admission in part through stories of discrimination they have suffered. Lawyers on all sides said they should be able to do so, although not solely on that basis.

“It’s very difficult to unbundle” those stories from someone’s race or ethnicity, he said.

A Chance to Reverse Course

The cases represent a chance for opponents of affirmative action to reverse not only the Harvard and UNC decisions but many others that have upheld the use of affirmative action since the Supreme Court ruled in the Bakke case in 1978.

The composition of the Supreme Court differs significantly from the last time it upheld the use of affirmative action in college admissions, in 2016, in a case involving the University of Texas at Austin.

That decision was 4 to 3 because of the death of Justice Antonin Scalia, an opponent of affirmative action, and the recusal of Justice Kagan, who worked on the case as solicitor general before she joined the Supreme Court. The author of the decision, Justice Anthony M. Kennedy, has since retired from the Supreme Court.

The three justices who were in the minority in that case—Chief Justice Roberts, Justice Alito and Justice Thomas—remain on the court, and they have been joined by three conservative justices.

The Harvard case decisions—in 2019 by Judge Allison Burroughs and in 2020 by the U.S. Court of Appeals for the First Circuit—came in a much-watched case brought by a long-standing critic of affirmative action, Students for Fair Admissions, on behalf of a group of Asian American plaintiffs.

“For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions,” Burroughs wrote in her conclusion. “Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny. The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences.

“It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet. Until we are, race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.”

The appeals court said, “The issue before us is whether Harvard’s limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent. There was no error.”

Students for Fair Admissions, the group that sued Harvard, in February asked the Supreme Court to hear the case. The brief asked the Supreme Court to repeal its 2003 decision in Grutter v. Bollinger, which upheld the use of affirmative action in admissions by the law school at the University of Michigan. “Although Grutter praised the ‘educational benefits’ of student body diversity writ large, its assumption that a university can predict, based solely on race, an applicant’s ‘views’ or ‘experience[s]’ is little more than racial stereotyping.”

With regard to Harvard, the Students for Fair Admissions brief said, “At Harvard, race is not a ‘plus’ that is always ‘beneficial’; it’s a minus for Asian Americans. At Harvard, race is not a ‘factor of a factor of a factor’; it is an anvil on the scale that dominates the entire process. At Harvard, race is not a ‘temporary’ evil to be repealed as soon as possible; it is a key aspect of identity that Harvard will use until a court makes it stop.”

The UNC Case

UNC won its case a year ago when Judge Loretta C. Biggs found that “at trial, UNC defendants produced substantial, credible, and largely uncontested evidence that it has made the deliberate decision to pursue the educational benefits that flow from student body diversity; has offered a principled, reasoned explanation for this decision; and that the benefits the university seeks to achieve are sufficiently measurable to permit judicial scrutiny.”

Normally, the plaintiffs in the case, Students for Fair Admissions, would appeal to the U.S. Court of the Appeals for the Fourth Circuit. But SFFA said that, given the similarities to the Harvard case, the Supreme Court should combine the two cases.

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Scott Jaschik

Scott Jaschik, Editor, is one of the three founders of Inside Higher Ed. With Doug Lederman, he leads the editorial operations of Inside Higher Ed, overseeing news content, opinion pieces, career advice, blogs and other features. Scott is a leading voice on higher education issues, quoted regularly in publications nationwide, and publishing articles on colleges in publications such as The New York Times, The Boston Globe, The Washington Post, Salon, and elsewhere. He has been a judge or screener for the National Magazine Awards, the Online Journalism Awards, the Folio Editorial Excellence Awards, and the Education Writers Association Awards. Scott served as a mentor in the community college fellowship program of the Hechinger Institute on Education and the Media, of Teachers College, Columbia University. He is a member of the board of the Education Writers Association. From 1999-2003, Scott was editor of The Chronicle of Higher Education. Scott grew up in Rochester, N.Y., and graduated from Cornell University in 1985. He lives in Washington.

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