Supreme Court's conservatives are openly hostile to affirmative action in admissions

Updated October 31, 2022 at 9:21 PM ET

Affirmative action in higher education was clearly was on life support at the Supreme Court on Monday. All six conservative justices indicated great skepticism about allowing race to be considered at all in college admissions.

If the court's supermajority does what it sounded like it will do, it will end the ability of colleges and universities, public and private, to do what most say they still need to do: consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

At issue were affirmative action programs in two elite institutions — the University of North Carolina, which until the 1950s did not admit Black students, and Harvard University, which was the model for the Supreme Court's 1978 decision declaring that colleges and universities may consider race as one of many factors, from the applicant's geographical and family background, to their special talents in science, math, athletics, and even whether the applicant is the child of the school's alumni.

What can be taken into account during admissions?

The court's liberals tried their best to suss out arguments supportive of affirmative action.

Justice Sonia Sotomayor suggested that the meaning of the post-Civil War constitutional amendments fits in with affirmative action today. She pointed out that when the Thirteenth and Fourteenth Amendments were passed, "Congress spent a lot of money in trying to get Black children, whether they were children of slaves or free[d] slaves, to be educated in integrated schools" because the framers "had a belief ... that integration itself provided a value?"

Justice Ketanji Brown Jackson piled on, adding that the affirmative action programs before the court contained no automatic preference for Black and Hispanic applicants.

But lawyer Patrick Strawbridge, representing Students for Fair Admissions, the conservative group challenging the policy, countered that race is a determinative factor.

That prompted Justice Amy Coney Barrett to ask whether it would be an improper consideration of race if a Black applicant was admitted partially on the basis of an essay talking about his or her struggle in dealing with racial discrimination.

Strawbridge replied that such an essay would be an appropriate factor for consideration, because the act of overcoming discrimination is distinct from an applicant's race itself.

Justice Samuel Alito followed up to ask about an African immigrant, who moved to western North Carolina where the population is "overwhelmingly white." This applicant wants to talk about adjusting to cultural differences — could he do so?

That would generally be fine, Strawbridge said, because the essay is about cultural experiences and the applicant's character — his ability to adapt.

"I mean, that's slicing the bologna awfully thin," remarked Justice Elena Kagan, ruefully.

The court's three liberals made very clear in the UNC case that, in their view, carefully tailored affirmative action plans are justified in order to ensure that there is a diverse student body, which in turn produces better scientists, businessmen and women, teachers, and so on. People, in short, who work better with others and are better able to be "better leaders."

Conservatives are skeptical

The court's conservatives weren't buying it. Even Chief Justice John Roberts, who normally likes to ask hard questions of both sides, made clear from the get-go, as he has in the past, that, in his view, the Equal Protection Clause enacted after the Civil War was aimed at a colorblind society. Indeed, though three lower courts found in the UNC and Harvard cases that there was no evidence of discrimination against Asian Americans to limit their numbers on campus, as SFFA claims, Roberts said flat out, and without qualification, that Asian Americans had been the victims of discrimination at both schools.

Alito followed up: "What is your response to the simple argument that college admissions are a zero-sum game?"

"Suppose you have a race," he said, "two people are in a race, and you give a plus factor to one of the runners, so that runner gets to start ... five yards closer to the finish line. The one who doesn't get that plus factor is disadvantaged, right?"

Lawyer David Hinojosa, representing the Lawyers' Committee for Civil Rights Under Law, replied that's not the case at UNC, because no bonus points are given to any applicant. North Carolina Solicitor General Ryan Park similarly stressed that that the university does not award points to any applicant for the simple act of self-identifying as any race.

None of this seemed to make any headway with the court's conservatives, though. Perhaps the only advocate for affirmative action who made any headway at all was Solicitor General Elizabeth Prelogar, representing the federal government. She emphasized in particular the military's need for a racially diverse officer corps, and pointed to racial tensions and violence during the Vietnam War between the largely white officer corps and mainly minority enlisted force.

"It is a critical national security imperative to attain diversity within the officer corps," she said. "And, at present, it's not possible to achieve that diversity without race-conscious admissions, including at the nation's service academies."

That led several of the court's conservatives to turn their attention to a different question, one raised in 2003 in the court's last decision upholding so-called holistic evaluations of applicants, as in the UNC and Harvard cases. That is, evaluating each qualified applicant individually to determine who will fill the limited number of student seats in the incoming class.

In that 2003 decision, Justice Sandra Day O'Connor, writing for the court majority suggested that there should be an end to race-conscious admissions programs, perhaps 25 years hence. That of course, would mean the nation is quite close to the time to end these policies, though none of the advocates for affirmative action really thought they should be abandoned yet — which prompted Justice Barrett to ask this question: "How do you know when you're done? ... When would you have an endpoint?"

The argument in the Harvard case

Moments later, in the Harvard case, SFFA's lawyer, Cameron Norris, told the justices they should "admit that [the court] was wrong about Harvard" in 1978, wrong in the cases since then, and that all its decisions about affirmative action in college admissions should be overruled. The result of some recommended alternative plans, he said, would mean that at Harvard, "the number of white students would decrease. The number of Asian students would increase. The number of Hispanic students would increase. I think you'd see lots of benefits in that."

But when Justice Sotomayor said that would also reduce the academic excellence of the school, Norris replied that it would only move Harvard from the 99th percentile to the 98th in SAT scores. "That's moving Harvard from Harvard to Dartmouth," he said, and "Dartmouth is still a great school. They get 98th percentile SAT scores. We've got to make some sacrifices."

The Harvard case hits a variety of nerves for the justices. Five of them have deep connections to the school. Indeed Justice Jackson is recused from the case because she sat on the Harvard Board of Overseers during part of the litigation. She is among the four justices, including the chief justice, who either attended Harvard College, Harvard Law School or both. Justice Kagan, in addition, served as dean of the law school for six years, and Justice Brett Kavanaugh taught there.

The Harvard case has a particular resonance because the school has a sordid history of imposing Jewish quotas in the 1920s, '30s and '40s to limit the number of Jewish students on campus. That history has allowed SFFA's lawyers to claim that at Harvard, "Asians are the new Jews." Perhaps because of that asserted link to history, Harvard decided to have a full-blown trial that lasted more than two weeks, involved years of production of documents, and hundreds of thousands of emails. And when the dust settled, both the district court judge and the court of appeals found "no evidence" of discrimination against Asian Americans — a fact that Harvard's lawyer, Seth Waxman, repeatedly emphasized on Monday.

The court's conservatives repeatedly put him to the test. Justice Neil Gorsuch suggested that if Harvard gave up its advantages to applicants who are legacy students, and the children of faculty and staff, and athletes in sports like squash and crew, where white students predominate, there would be far more room for Asian American students who, as a group, have better scores than all other ethnic groups, including whites.

Lawyer Waxman rejected that claim, calling SFFA's similar assertion "a false narrative." The statistical analysis presented before the lower courts, he said, showed that the academic scores of Harvard graduates would go down 17%, if such a plan were adopted. And he maintained that the evidence shows that under the current system, Asian Americans actually benefit from the school's affirmative action program. Indeed, said Waxman, after four years of litigation in which SFFA was permitted to hand-pick applications for examination, SFA "could not produce a single Asian American witness to testify that he or she had been the victim of racial discrimination."

Then why, asked Justice Alito, do Asian Americans get lower scores on "personal" scores than any other group.

They don't, insisted Waxman; whatever differences there are on those personal scores are "marginal" and they don't make a statistical difference.

Then why do you do it? asked Alito. We do it, Waxman replied, as a matter of "triage." With 61,000 applicants for 1,600 slots, such marginal differences on personality scores don't matter any more than the marginally better academic scores of Asian Americans. He did acknowledge, though, that if an applicant is so strong in many ways, that is he or she is "on the bubble," the candidate may get what's called "a tip" for being African Americans or, for that matter, Asian American.

Questioned by Chief Justice Roberts, Waxman conceded that in those cases, race may be a determining factor just as it would be if one of the best applicants were "an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player."

At that, the chief justice shot back, "We did not fight a Civil War about oboe players ... We did [it] to eliminate racial discrimination."

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