Marisa Wright is a US National Correspondent for JURIST, and a 2L at Harvard Law School.
The US Supreme Court heard oral arguments on Monday morning in two cases challenging the validity of race-conscious affirmative action programs in college admission. Through their questions to the parties, the justices signaled how they may ultimately vote in the case.
The two cases—Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College—challenge the universities’ use of race in admissions programs under the equal protection clause of the Fourteenth Amendment. The UNC case also challenges affirmative action under Title VI of the Civil Rights Act of 1964, which applies because UNC is a public university. The case against Harvard is unique for challenging the admissions program of a private institution.
The Court’s conservative justices showed skepticism of the idea that colleges have an interest in educational diversity, which has been previously upheld by the court as a permissible justification for affirmative action. Justice Clarence Thomas, who has exhibited outright animosity towards race-conscious affirmative action in previous opinions, said “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”
Justice Samuel Alito asked about the term “underrepresented minority.” He went on to suggest that college admissions is a “zero-sum game” where granting advantage to one necessarily results in disadvantage for others.
Several conservative justices, particularly Justices Brett Kavanaugh and Amy Coney Barrett, repeatedly asked the parties about an endpoint for colleges considering race in admissions. This questioning is related to the so-called 25-year sunset provision in Grutter. Justice Sandra Day O’Connor wrote in Grutter, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in educational diversity] approved today.” Written in 2003, the 25-year sunset provision would expire in 2028; however, the Court is not necessarily bound by this provision.
On the Court’s other end, the liberal justices repeatedly asked the advocates about the support for race-conscious remedial efforts in the original history of the Fourteenth Amendment. A group of legal historians wrote extensively in an amicus brief about the way that the text and history of the Fourteenth Amendment focus on ensuring equality through race-conscious actions, particularly in education, not “colorblindness” or race neutrality.
Justice Brown Jackson, who recused herself from the Harvard case but heard the UNC case, asked several questions about the lack of evidence showing students are admitted or denied on the basis of race alone. To the Students for Fair Admissions advocate, she said, “You haven’t demonstrated or shown one situation in which all they looked at was race.”
Justice Elena Kagan asked about “a precipitous decline in minority admissions” that might occur if the Court invalidates affirmative action. She noted that elite universities are “the pipelines to leadership in our society.” She also questioned Students for Fair Admissions about the importance of racial diversity in higher education: “Your brief says it just doesn’t matter if our institutions look like America,” she said. “Doesn’t it?”
The petitioners in both cases also ask the Court to overturn a long line of precedents that have upheld race-conscious affirmative action programs due to states’ interest in educational diversity since the 1970s. Specifically, the petitioners argue that Grutter v. Bollinger should be overturned. Grutter involved the University of Michigan Law School’s admissions plan, which used race as part of individual, holistic consideration of applicants. It ultimately upheld the program, finding that it survived strict scrutiny because it served compelling state interests and was narrowly tailored to achieve those interests.
Both cases are brought by Students for Fair Admissions, Inc., a conservative organization headed by conservative legal activist Edward Blum. Blum has been behind several cases challenging civil rights, including a successful challenge to a key provision of the Voting Rights Act of 1965 in Shelby County v. Holder. Blum remarked that he “needed Asian plaintiffs” after losing a different high-profile challenge to affirmative action in 2016.
The plaintiffs allege that UNC and Harvard discriminated against applicants—particularly Asian American applicants—by considering race in their admissions programs. However, the plaintiffs have requested that the Court not only invalidate UNC and Harvard’s specific admissions programs but also invalidate race-conscious affirmative action programs entirely.
The Court’s ruling in the case is expected at the end of its term in June 2023.
Read more about the background of the cases from JURIST’s previous coverage.