- Arguments in the Harvard, UNC Supreme Court cases began at 10 a.m. EDT.
- Experts are watching Chief Justice John Roberts and the other court curators.
- The cases could have profound implications for diversity on campus and in the workplace.
WASHINGTON — The Supreme Court is hearing oral arguments Monday on one of the the most difficult and controversial issues to achieve its role this year: if colleges can consider the race of future students in the interest of diversity.
At issue are policies at Harvard College and the University of North Carolina that allow admissions offices to consider applicants’ race as one of many factors that help decide who will be accepted. Depending on the scope of the court’s decision, the outcome of the cases could have far-reaching implications beyond higher education.
In the opening minutes of argument, several of the court’s liberal justices peppered the affirmative action group that brought the lawsuit over how the University of North Carolina views race.
“When you give your run, you don’t get any special points,” Associate Judge Ketanji Brown Jackson said. “It’s treated the same as the other factors in the system. No one automatically enters because race is used.”
Associate Justice Sonia Sotomayor asked how admissions officers are supposed to take into account applicants’ different experiences.
“If you’re black, you’re more likely to be in an underfunded school. You’re more likely to be taught by teachers who aren’t as qualified as others,” Sotomayor said.
“Racial classifications have always been disadvantaged for a number of reasons,” said attorney, Patrick Strawbridge. “They divide unnecessarily.”
Associate Justice Brett Kavanaugh wondered what would happen if universities instead looked at other factors – such as socio-economic factors – to try to create a diverse class. Strawbridge argued that whether or not this would be allowed would depend in part on the college’s intentions.
A crowd of several hundred people gathered outside the Supreme Court more than an hour before the start of the proceedings – most of whom appeared to support the universities.
Dozens of people lined the court steps for the chance to hear arguments in person. Those who spoke in favor of using race in admissions were the most prominent protesters. They carried signs reading “#defenddiversity” and “Asian Americans for Affirmative Action”. When a speaker mentioned Edward Blum, the lawyer who organized the trial, the crowd scoffed.
At least one person, however, was against race in admissions, posting signs that read “End affirmative discrimination now.”
After years of preparation, the Harvard and UNC litigation comes before the Supreme Court as the nation continues to grapple with the fallout from June’s decision to overturn Roe v. Wade and to end the constitutional right to abortion. The two cases are among several in this mandate that require the court’s 6-3 conservative majority to confronting the difficult question of race in America as well as questions about the extent to which the government can take race into account to remedy discrimination.
A decision is not expected until next year.
Lawyers for the colleges and the Biden administration, who have so far been successful in lower federal courts, will likely face a tougher audience in the nation’s highest court. Chief Justice John Roberts, often the conservative judge most likely to side with the court’s liberals, has repeatedly signaled his opposition to race-based decision-making in other settings. So, too, have Associate Justices Clarence Thomas and Samuel Alito.
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The two cases – one involving the nation’s oldest private college and the other its oldest public college – had been merged but were later split to fit Associate Justice Ketanji Brown Jackson. The new judge announced during her confirmation hearing in March that she recuse herself from the Harvard case because she had previously served on the supervisory board of the university.
Jackson will, however, participate in the UNC case.
For practical reasons, both cases raise much the same question: does the Supreme Court set to overturn 2003 precedent this allowed the University of Michigan Law School to consider race as a factor in its admissions process. In an opinion by Associate Justice Sandra Day O’Connor, the court found that the school had a compelling interest in ensuring a diverse campus and that the way it viewed race – using it only as a “greater factor in an otherwise individualized assessment – does not violate the 14th Amendment Equal Protection Clause.
In other words, students don’t get into college just because of their race. But if a college is considering two equally qualified applicants, a minority student might have the advantage.
The anti-affirmative action group Students for Fair Admissions challenged the policies, saying they unconstitutionally discriminated against Asian American and white applicants. The group also claims that Harvard and UNC are not following the mandate set out by the 2003 decision to consider race-neutral policies to expand diversity.
The United States Court of Appeals for the 1st Circuit, based in Boston, ruled in 2020 that Race used in an authorized way at Harvard under this 2003 precedent. A U.S. District Court in North Carolina ruled in favor of the university there and Students for Fair Admissions applied for and won review by the Supreme Court before the Court of Appeal weighed in on the case.
Guide:Back to the main cases pending before the Supreme Court
Themes:Supreme Court grapples with race and re-elections
Explanation:How has affirmative action shaped higher education?
Although the issues raised by the litigation are limited to higher education, experts say a blanket ruling limiting affirmative action on U.S. campuses could have an effect ripple effect on diversity and inclusion programs which have proliferated in the private sector, especially since the emergence of the Black Lives Matter movement.
Diversity, equity and inclusion programs are now “a given” in the private sector, according to a brief filed on on behalf of some of the country’s best-known brands – including Apple, General Electric, Google and Starbucks. In 2011, 97% of global companies reported formal strategies to foster diversity, according to a Forbes Insights Survey cited in this memoir. Companies support colleges in suits.
“Racial and ethnic diversity improves business performance,” the companies told the court in August. “Research and experience show that racial diversity improves decision-making by increasing creativity, communication and accuracy within teams.”
In addition to the potential economic impact, the cases will likely send a signal about the direction the court’s conservative majority is taking on race issues. The court rulings could speak to a debate simmering just under the surface of several high-profile lawsuits this year: whether the framers considered a color-blind Constitution or whether the government can promote programs to reverse the effects of discrimination.
