Conservative majority skeptical as Supreme Court hears defense of affirmative action

(WASHINGTON) — The Supreme Court on Monday heard landmark arguments over the use of race in college admissions for nearly five hours, with its six-justice conservative majority leaving the bench apparently poised to rollback a 40-year legacy of affirmative action.

Attorneys for Students for Fair Admissions, the advocacy group challenging race-conscious policies at UNC and Harvard, argued forcefully that “racial classifications” don’t have a place in higher education and that the spirit of Brown v. Board of Education, the historic 1954 decision desegregating America’s schools, requires race neutrality.

The University of North Carolina and Harvard, separately through their attorneys, sought to convince the court to hold the line, insisting both admissions programs adhere to the Court’s precedent allowing narrowly tailored use of race as one factor in a holistic assessment of student applicants.

They repeatedly invoked lower court rulings, derived from fact-intensive district court trials, that found neither institution illegally discriminated on the basis of race. The schools also invoked the history of the 14th Amendment, drafted after the Civil War to extend equal rights to blacks and former slaves, as evidence that race-consciousness is part of our history.

The Biden administration, backing the schools in the cases, called affirmative action a “national security imperative” with significant implications for the country’s future military leadership and warned of “destabilizing effects” to corporate America if the policy is abruptly curtailed.

Justices on both sides of the bench seemed to agree that the use of race as a factor in admissions should not continue indefinitely and that the court’s prior rulings said as much. They disagreed strongly on how to decide when a transition to race neutrality is warranted and whether the milestone has been met.

Justice Ketanji Brown Jackson, the first Black woman justice, was a prominent voice during the first half of the arguments, repeatedly questioning the harm in considering race as one factor — a “plus factor” — among many in building a diverse student body. She also suggested that telling schools they cannot consider an applicant’s race could be a reverse violation of the Equal Protection clause.

Justice Clarence Thomas, the only conservative justice of color and second Black justice in U.S. history, cast doubt on the claimed measurable educational benefits from diversity on campus and appeared eager to overturn a series of precedents he’s found egregiously wrong from the start.

There was much debate about the viability of race-neutral alternatives to assembling a diverse campus student body — proposals that included an emphasis on socio-economic status over race, or the removal of “check boxes” while allowing applicants to raise race in an essay on their own.

In the end, many of the conservatives appeared convinced that the court’s affirmative action precedent — in practice — was disadvantaging some students at the expense of others, purely on the basis of race — even if quotas are not explicitly involved. That sort of favoritism has long ruffled Chief Justice John Roberts, among others, and their discomfort with the approach was on full display.

Justice Brett Kavanaugh, the justice who has voted most in the majority of any justice in the last two terms, could be an important factor in the scope of a final decision. He appeared laser focused on crafting a definition for “race-neutral” that would be workable and fair, asking several times about whether a school could give a plus factor for descendants of slaves.

The court’s decision is due out next year.

Here is how the oral arguments developed:

Oct 31, 3:24 PM EDT
Court adjourns after nearly five hours

Cameron Norris, the attorney for Students for Fair Admissions, took the podium for a final rebuttal in the Harvard case, again imploring the justices to overturn 40 years of precedent on affirmative action.

“Racial classifications themselves have harm,” he said. “They cause resentment by treating people differently based on something they can’t change.”

At the conclusion of his comments, Chief Justice Roberts announced the case would be submitted, the gavel dropped, and the justices scurried off the bench.

Oct 31, 3:22 PM EDT
Solicitor General warns of ‘destabilization’ if affirmative action goes

Biden administration Solicitor General Elizabeth Prelogar opened her second appearance before the court by taking a big-picture approach to the consequences of ending affirmative action.

Prelogar said overturning precedent would “cause racial diversity to plummet at many of our nation’s leading institutions.”

She said that because colleges and universities are training grounds for our future leaders there would be “reverberations through every institution in America.”

Overturning Grutter v. Bollinger, the 2003 case upholding affirmative action, would have “devastating” and “destabilizing” effects, she said.

Prelogar stressed that the U.S. government’s position is that race-neutral approaches are ideal and should be adopted but that conditions in higher education are not yet ripe for that transition.

Oct 31, 3:10 PM EDT
Roberts grills Harvard attorney: ‘We did not fight a civil war about oboe players’

Chief Justice John Roberts, a long-time critic of race-conscious policies, pressed Harvard attorney Seth Waxman to concede that — in some cases — race could be a determinative factor for admission.

“You will have to concede that it provides one of many [factors] that in some cases can be determinative” Roberts said.

“I do, I do concede that,” Waxman said, going on to explain that it could be a “tip” on a competitive application in the same way a student’s oboe-playing abilities could be a factor if the university needed one.

“We did not fight a civil war about oboe players,” Roberts shot back, “we did fight a civil war to eliminate racial discrimination.”

Oct 31, 2:36 PM EDT
Conservative justices press Harvard on treatment of Jews, Asians

The conservative justices are pressing Harvard’s attorney over the school’s history of alleged discrimination.

“What do we do about history here?” Justice Gorsuch asked Seth Waxman. “Harvard’s move to the more holistic application approach happened in the 1920s because it wanted to impose a quota on Jewish applicants, so it used diversity as subterfuge for racial quotas.”

“Harvard has admitted and is ashamed that one of its presidents decided that there were too many Jews and would start asking questions on its application to start taking into account character. But the notion that that has any bearing at all… any resemblance whatsoever of the racist antisemitic policy of a single Harvard president is unfound,” Waxman replied.

Justice Alito pressed Waxman to address claims that Asian American students are disproportionately disadvantaged by Harvard because of low “personality scores” given by admissions officers. Waxman responded by saying the district court found “no evidence of discrimination.”

“The record shows that Asian students get the lowest personal scores of any group … what accounts for that?” Alito pushed. “Why are they given a lower score than any other group?”

“I can’t do better than the findings of fact in the trial court as affirmed,” Waxman responded.

Oct 31, 2:14 PM EDT
Attorney for Harvard says challenger group not ‘entitled to its own facts’

Seth Waxman, the former U.S. solicitor general defending Harvard, has begun an impassioned defense of the university’s admissions policies and flatly rejected claims brought by Students for Fair Admissions.

“SFFA attempts to use Harvard’s admissions program to argue that settled constitutional precedent is egregiously wrong,” he said. The group is “entitled to its own arguments, but it is not entitled to its own facts.”

Waxman noted that a lengthy, detailed and fact-intensive district court trial resulted in a finding that Harvard was entirely within the law — a ruling upheld by the appeals court.

“Thirty witnesses and detailed analysis,” Waxman said. “What the court of appeals robustly affirmed … applying strict scrutiny, is that Harvard does not engage in racial balancing and most certainly does not engage in discrimination against Asian American applicants. The false narrative to which SFFA clings is no basis to jettison decades of precedent.”

Oct 31, 1:56 PM EDT
College students, activists gather outside Supreme Court

College students and civil rights leaders have been gathering outside the Supreme Court as justices hear two cases challenging affirmative action.

As Asian American college students, Tony Ruan and Resty Fufunan of Yale College believe it’s important to support affirmative action because diversity is needed in our schools and communities.

Fufunan said today is important for education because it’s intimately tied to social-economic outcomes, social mobility and breaking out of poverty.

But Taiwanese American Ada Chiu Carliucci, mother of two, flew in yesterday from Wellington, Florida, in hopes of getting inside the court to see affirmative action rolled back.

She called Harvard’s admissions process, especially their personality assessments, discrimination.

Carliucci also said the assessments made an entire race undesirable and she is worried for her two kids, who are half-Asian and half-white, who have worked hard to get good grades their whole lives.

Earlier, George Mason NAACP President, senior Alaina Ruffin from Herndon, said overturning affirmative action would be a massive step back and a roll back of the civil rights that so many fought and died for.

Devin Freeman, the political action chair of the NAACP’s youth and college division, then described overturning precedent as an atrocity. He said reversing affirmative action will affect diversity and if the Supreme Court overturns precedent, it will take away civil liberties.

Oct 31, 1:54 PM EDT
Arguments begin in Harvard case

The justices are now hearing Students for Fair Admissions’ challenge to race-conscious admission policies at Harvard University, the nation’s oldest private college.

Justice Ketanji Brown Jackson, a graduate of Harvard College and Harvard Law School who also served as member of the Harvard Board of Overseers, is not participating in the oral argument. During her confirmation hearings earlier this year, Jackson said she would recuse herself from the case.

In this case, SFFA claims Harvard discriminates against Asian applicants through subjective personal ratings.

Cameron Norris, a lawyer for the plaintiffs, began his arguments by telling justices: “What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful.”

Oct 31, 1:11 PM EDT
Arguments conclude in UNC case after nearly three hours

The Supreme Court participated in an extraordinary and historic debate on Monday morning during arguments on affirmative action.

The court’s conservative majority has made clear that it is poised to sharply curtail the use of race in college admissions at public universities, suggesting the court’s precedents always envisioned a time limit on the practice, casting doubt on the educational benefits, and seeing a danger in disadvantaging some students simply because of the color of their skin.

The court’s liberals have mounted a vigorous, if at times uncoordinated, defense of the law, with Justice Ketanji Brown Jackson repeatedly questioning the harm in a school considering race as a “plus” factor in a holistic assessment of a student and worrying aloud about a reverse equal protection violation in telling minorities that their race cannot matter.

The justices will next hear the case challenging the race-conscious admissions policy at Harvard University.

Oct 31, 1:07 PM EDT
’What would an originalist think about this?’

Justice Elena Kagan posed this question to Solicitor General Elizabeth Prelogar seeking to pique the interest of her conservative colleagues and adherents to the philosophy of constitutional interpretation.

Prelogar replied that at the time of enactment of the 14th Amendment “there were federal and state laws that premised on bringing African Americans into full equality.”

Justice Amy Coney Barrett, a self-avowed originalist, later conceded the point but suggested their purpose was limited.

“I entirely agree with you that it’s not always illegal to take race-conscious remedial measures,” Barrett said. “It’s not accurate to say, when you look at the original evidence, that it was always colorblind… So the question is under what circumstances have those remedial measures been permitted?”

“Petitioner has not been able to point to any history that racial classifications were automatically and invariably unconstitutional,” Prelogar said later.

Oct 31, 12:33 PM EDT
Biden admin defends affirmative action as ‘national security imperative’

Biden administration Solicitor General Elizabeth Prelogar took the podium two hours into the first case to defend affirmative action as a “national security imperative.”

Prelogar argued that race-conscious admissions policies at the nation’s service academies are “critically important” to building a diverse officer corps.

“At present it’s not possible to achieve that without race conscious admissions, including at the nation’s service academies,” she said.

Under questioning by Justice Clarence Thomas, Prelogar also offered a vigorous defense of the educational benefits of diversity in a campus setting.

“Cross-racial understanding, challenging stereotypes and assumptions … reducing a sense of racial isolation and alienation, encouraging greater participation by minority students in the classroom environment,” she said. “It is necessary to have our leadership broadly reflect the diversity of our country.”

Justice Elena Kagan asked Prelogar why the government can’t achieve those benefits by race-neutral means.

“We are trying to bolster outreach efforts…[and] looked into other alternatives,” Prelogar said, including greater preference for socio-economic background factors, “but that would increase the number of white men.”

Oct 31, 12:24 PM EDT
Jackson sees a reverse equal protection problem in banning race from admissions

Justice Ketanji Brown Jackson, the court’s first Black woman member, has repeatedly voiced concern about the impact a race-blind admissions mandate could have on young people nationwide.

“Is there a risk of treating people differently by not allowing some applicants to talk about that aspect of their identity?” she said. “I’m worried it creates an inequity in the system.”

Jackson posited that it could put students of color at a disadvantage — in potential violation of the 14th Amendment’s Equal Protection Clause — by telling schools that they cannot consider race but can consider a host of other factors.

“We are very concerned with that issue,” said North Carolina Solicitor General Park, who is arguing on behalf of UNC.

Oct 31, 12:06 PM EDT
Justices spar over racial ‘check box’ on applications

Justice Samuel Alito took aim at the value of a racial “check box” on college application forms, asking Park to address the plaintiffs’ claim that it says nothing about the student.

“We think that’s just not true,” Park responded.

Alito then questioned how UNC could fairly evaluate the racial makeup of an applicant based on a “check box.”

Justice Sonia Sotomayor jumped in to push back on Alito’s suggestion of potential for unfair or unreasonable advantage.

“Do you get an automatic plus for checking a box?” Sotomayor put to Park, to which he responded, “No.”

“That’s the whole point, right?” Sotomayor said, “that checking a box doesn’t get you a point” in favor of admission.

Oct 31, 11:49 AM EDT
Conservatives press: ‘When does it end?’

The court’s conservative justices have been bombarding North Carolina’s Solicitor General Ryan Park with questions about time-limits on the use of race in admissions, which the court’s 2003 decision in Grutter v. Bollinger seemed to embrace.

In that decision, Justice Sandra Day O’Connor famously predicted in her opinion upholding affirmative action that the use of race in admissions would no longer be necessary 25 years later.

“What is your goal and how would a court be able to determine when your goal has been reached?” Justice Samuel Alito pressed.

“Our goal is to achieve the educational benefits of diversity,” Park responded, adding: “I understand that’s a qualitative metric.”

Justice Amy Coney Barrett then jumped in, asking Park: “When does it end? When is your sunset? When will you know … Grutter says this is dangerous and has to have an end point and I hear you telling Justice Alito it doesn’t have an end point.”

“We enthusiastically embrace an end point requirement,” Park replied, adding that the university continues to look at and adopt race-neutral alternatives.

Oct 31, 11:27 AM EDT
Justice Thomas asks UNC for definition of diversity

Justice Clarence Thomas, questioning North Carolina Solicitor General Ryan Park, kicked off questioning by asking for a specific definition of diversity and explanation of what the educational benefits are.

“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.”

“We value diversity of all different kinds and all the ways people differ in our society,” Park responded. “On the benefits, it’s not disputed here that there are benefits of all kinds … Racially diverse and diversity of all kinds leads to a deeper and richer learning environment.”

When asked by Thomas to state specific educational benefits, Park cited studies saying that racially diverse stock traders make better trades because it reduces group think.

“I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation, too,” Thomas replied.

Thomas, whose ruled and written on affirmative action in the past, is an opponent of the policy.

Oct 31, 10:59 AM EDT
Conservative justices raise race-neutral alternatives

The conservative justices are exploring the idea of race-neutral alternatives to achieving diversity on college campuses.

Chief Justice Roberts is leaning into the notion that if racial “check boxes” were eliminated, students could still raise race in the essay process.

Justice Brett Kavanaugh pressed Strawbridge for clarity on what “race-neutral” means and what standard the court might set.

“What qualifies as race neutral in the first place,” he said. “What if a school says a plus factor for descendants of slaves? Is that race neutral or not? … We have to think forward about what happens if you prevail in this case.”

Strawbridge replied: “If that’s the only basis, then that may be a pure proxy for race,” and impermissible.

Kavanaugh then asked about a school giving a plus factor to students of immigrants to this country, which Strawbridge said “might be permissible in the general sense.”

Oct 31, 10:37 AM EDT
Justice Jackson questions plaintiff’s standing

Justice Ketanji Brown Jackson, the court’s newest member, is questioning whether members of Students for Fair Admissions have standing to challenge the universities.

“I’ve been struggling to understand how race is actually factoring into the admissions process here and whether there’s actually any redressable injury that arises?” Jackson asked. “How exactly UNC’s system works with race and how your members are harmed by that?”

“Why is it that race is doing anything different to your members’ ability to compete in this environment?” she continued. “They can get points for diversity, even, in this environment. So, why does using race as a factor harm your members in a redressable way?”

Strawbridge insisted that white students are at a disadvantage when applying to UNC because they cannot get a “plus” point based on their race.

“It does not give racial preferences to white applicants,” Strawbridge said.

“Any consideration or race will give rise to injury … You’re being denied the opportunity to compete on a fair playing field,” he added.

Oct 31, 10:27 AM EDT
Liberal justices press for facts on harm: How can you prove race is determinative?

The court’s three liberal justices are challenging Patrick Strawbridge, arguing the case for Students for Fair Admissions, to articulate the harm from schools using race as one factor in a holistic review, consistent with Supreme Court precedent on affirmative action.

“You’re considering race is the only factor that gets someone in at a school,” Justice Sonia Sotomayor pressed.

Strawbridge replied that “logic” suggests that if race is accounted for, only some people are going to get in.

Justice Ketanji Brown Jackson interjected, asking for “the facts that some people aren’t going to get in?”

Strawbridge replied that experts estimate 1-2% of applicants to University of North Carolina are affected by racial considerations. He said that translates to 700 applications.

“How can you ever prove that it’s ever a determinative factor?” Justice Sotomayor pressed.

Oct 31, 10:13 AM EDT
Arguments are underway

Chief Justice John Roberts introduced the case at 10:04 a.m. and arguments are underway in Students for Fair Admissions, Inc. v. University of North Carolina.

Patrick Strawbridge, arguing for SFFA, opened by telling the justices “racial classifications are wrong.”

He invoked the landmark decision in Brown v. Board of Education to mean “racial classifications don’t have a place” in education. Strawbridge said flatly the court should overrule 40 years of affirmative action precedent inconsistent with Brown and “egregiously wrong.”

It “contradicts the Constitution’s guarantee of equal treatment,” he said.

Oct 31, 10:04 AM EDT
Trump attorneys will make case against affirmative action

Two attorneys who have represented former President Donald Trump will make the case against affirmative action at the Supreme Court.

Patrick Strawbridge will argue on behalf of Students for Fair Admissions in the University on North Carolina case. Strawbridge has represented Trump in Jan. 6 matters, challenges to 2020 election results in key states and in a bid to shield his tax returns from House investigators.

Cameron T. Norris, who has also represented Trump, will represent Students for Fair Admissions in the Harvard case.

Both men are partners at Consovoy McCarthy PLLC — and both are former clerks to Supreme Court Justice Clarence Thomas.

North Carolina Solicitor General Ryan Park is representing the University of North Carolina during the arguments. Former U.S. Solicitor General Seth Waxman from the Clinton Administration, and a Harvard alumnus, is defending the university in the second case.

– ABC News’ Devin Dwyer

Oct 31, 9:48 AM EDT
What to know about the cases

The justices on Monday will hear two major cases, the first starting at 10 a.m. regarding affirmative action at the University of North Carolina. The second case of the day will be about the policy at Harvard University.

Students for Fair Admissions, a group of students and parents led by conservative activist Edward Blum, has led the opposition to race-conscious admissions policies.

The organization sued the schools in 2014, alleging illegal racial discrimination against Asian American applicants during the admissions process. The schools have countered that court precedent makes clear that the consideration of race is allowed to address inequality.

A federal district court rejected SFFA’s claims, as did an appeals court. Now, the Supreme Court is being asked to weigh in on 40 years of precedent.

More information about the cases can be found here.

Oct 31, 9:33 AM EDT
College students share their views on affirmative action

Ahead of the oral arguments at the Supreme Court on Monday, ABC News spoke with college students from public and private colleges on what they think about the decades-old admissions policy.

Some students said the race-conscious policy was meaningful and important. One junior at Harvard University, one of the schools where affirmative action is being challenged, said: “We can’t just look at singular, individual numbers to determine who is most qualified or who should belong. We have to look at what adversity that they faced, what opportunities they have, how did they use those? Taking race into account is very important to ensure that we have a fair representation of people.”

Another student from Fordham University believed not including race on in the admissions process would provide a “more holistic review” of the applicant.

“You kind of get to see the student academically, what they really are,” they said. “You read a personal statement, you see their SAT scores. I think that in itself should say more about the student than the race.”

Read more here.

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