Wednesday, December 7, 2022

7 Key Moments From the Supreme Court Hearings on Race-Conscious Admissions

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For nearly five hours on Monday, the Supreme Court justices listened. They prodded lawyers for answers to multipart questions and posed a slew of hypothetical scenarios. At times they expressed apparent exasperation, even frustration, with the answers they heard. At the end of the exhausting affair, the court’s deep divide on issues of race was evident. And the future of race-conscious admissions programs in America appeared as tenuous as it has ever been.

The long-awaited oral arguments in two cases that challenge colleges’ use of race in admissions decisions — one against Harvard College, the other against the University of North Carolina at Chapel Hill — could soon undo decades of legal precedent. Since the Supreme Court’s landmark ruling in Regents of the University of California v. Bakke, in 1978, colleges have been able to consider race as one of many factors to further a compelling interest in student diversity. But Students for Fair Admissions, the organization that is challenging Harvard and UNC’s policies, has asked the court to end the controversial practice. And legal observers believe that the now-conservative court will seize the opportunity to do just that.

In several tense exchanges with lawyers representing Harvard and UNC on Monday, conservative justices expressed what seemed like impatience with a question that has long loomed over the debate: When, if ever, will colleges see fit to stop considering race?

Here are seven moments that stood out.

Justice Sandra Day O’Connor’s 25-year time horizon haunted the arguments.

“When does it end? When is your sunset?” Justice Amy Coney Barrett asked Ryan Y. Park, the solicitor general for the State of North Carolina, who argued on behalf of UNC.

Barrett was referring to the end of consideration of race in admissions and echoing an earlier line of questioning by Justice Samuel A. Alito Jr. Those justices, like their conservative colleagues, seemed frustrated that the lawyers defending the colleges did not want to name an exact date when they could stop giving some applicants a “tip” or “plus” because of their race in the admissions process.

The conservative justices repeatedly quoted from O’Connor’s 2003 decision in Grutter v. Bollinger. Even though O’Connor affirmed the University of Michigan Law School’s consideration of race, she wrote that “race-conscious admissions policies must be limited in time.” Specifically, O’Connor wrote 20 years ago that the court expects “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

SFFA and its opponents offered very different interpretations of what she meant by that 25-year comment. Cameron T. Norris, a lawyer representing SFFA, told the justices that “what Justice O’Connor was saying is that in 25 years, if we still need race, it’s not that you get another 25 years, it’s that we then declare racial preferences to be a failure.”

But speaking for the Justice Department, which intervened on behalf of the colleges, U.S. Solicitor General Elizabeth B. Prelogar said that that’s not what O’Connor meant.

“I just don’t think it’s a tenable way to read Grutter to say that the court was suggesting that 25 years from now, poof, the interest in diversity in higher education is no longer compelling,” she told the justices.

Seth Waxman, Harvard’s lawyer, said that the college’s policy of considering race is working.

“We are proud of the progress we’ve made,” Waxman said. “We still have work to do, including with respect to the way in which we treat students.”

The newest justice offered a hypothetical.

Patrick Strawbridge, a lawyer for SFFA, uttered the first words of the oral arguments in the UNC case: “Racial classifications are wrong.” Those four words lie at the heart of SFFA’s arguments, underpinning its claims that Harvard and UNC’s race-conscious admissions policies violate the equal-protection clause of the 14th Amendment. The organization’s mantra has been that the principle of color-blindness should outweigh everything else.

But Justice Ketanji Brown Jackson, who joined the Supreme Court this year, asked whether barring race-conscious admissions programs could pose a different kind of legal problem. “What I’m worried about is that the rule that you’re advocating — that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants but they can’t value race. … That seems to me to have the potential of causing more of an equal-protection problem than it’s actually solving.”

She proposed a hypothetical. Suppose there are two applicants to UNC, the first of whom conveys their hope of becoming a fifth-generation graduate of UNC; the second explains that they’re descended from enslaved people who didn’t have a chance to attend the university. Both wish to honor their families’ legacies by enrolling at 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.”

Strawbridge pushed back on that interpretation. “Obviously, nothing stops UNC from honoring those who have overcome slavery or recognizing its past contribution to racial segregation. But the question is: Is that a basis to make decisions about admission of students who were born in 2003? And I don’t think that it necessarily is. I don’t think that the equal-protection clause suggests that it is.”

This exchange reveals the complexity of the debate over whether race-conscious admissions programs violate the equal-protection clause.

Justices probed which race-neutral alternatives would be acceptable in a post-race-conscious admissions world.

Justice Brett Kavanaugh was ready to start thinking about what colleges will have to do if SFFA wins this case.

“Your position will put a lot of pressure going forward, if it’s accepted, on what qualifies as race-neutral in the first place,” Kavanaugh said. He wanted to know what Strawbridge, the SFFA lawyer, thought of a hypothetical plan to give a plus to the descendants of enslaved people. Strawbridge thought that such a program sounded like a “proxy for race” and would likely not be OK. (But at other times, he allowed that a student may write something in an application “in which race provides the context for their experience.”) Kavanaugh also asked what SFFA thought about a program that gave a plus to the children of immigrants, which Strawbridge said might be OK if it was applied to all immigrants.

The justices asked, at different points, what would happen if an applicant wrote about experiencing racial discrimination or if an applicant described how their racial identity or cultural heritage had been a source of pride. Justice Sonia Sotomayor asked about a hypothetical Black applicant who is from an affluent family, but is the first African American president of the student body of a white school. Would it be a different form of discrimination to not consider that applicant’s race in that context? Later, Norris, the other lawyer representing SFFA, said that “culture, tradition and heritage are all not off limits for students to talk about and for universities to consider.” But not race.

These are the kinds of often odd questions college-admissions officers will likely have to ask themselves if SFFA wins its case.

Lawyers discussed what can happen to the Black population of a college when race cannot be considered.

One college that was not on trial was nonetheless invoked by both sides several times: the University of California at Berkeley. For SFFA, it was an example of a campus that had achieved exemplary racial diversity even though California banned race-conscious admissions years ago — only 19 percent of the undergraduates are white, while 15 percent are Mexican American and 16 percent are of Chinese ethnicity, one of the SFFA lawyers said. For the Department of Justice, Berkeley is a cautionary tale because only a very small percentage of the student body is Black.

“Berkeley has experienced a substantial decline in the African American student population,” Prelogar, the solicitor general, said. “They further have explained the toll that’s taken on their ability to offer the educational benefits of diversity as well as the glaring sense of racial isolation that those students have on the Berkeley campus.”

The justices also heard about a hypothetical scenario predicting what would happen at Harvard if race was ignored: Black enrollment would drop to 10 percent from 14 percent, Harvard’s lawyer said. The university found that scenario unacceptable.

The U.S. solicitor general weighed in on Brown.

Prelogar framed the debate about admissions policies at selective colleges in broad terms. Dismantling race-conscious programs, she said, would weaken “the nation that we are and the nation that we aspire to be.” Ensuring that colleges are enrolling and educating diverse students benefits the military and corporations, as well as law, medicine, and scientific fields.

Prelogar also referred to the Supreme Court’s 1954 ruling in Brown v. Board of Education of Topeka, which held that “separate but equal” educational facilities for racial minorities is inherently unequal, violating the equal-protection clause. SFFA has argued previously that the Brown decision compels the Supreme Court to overrule Grutter v. Bollinger, a 2003 decision that upheld the limited use of race in admissions.

Yet Prelogar described “a world of difference” between Brown’s race-conscious admissions policies, which, she said, “are not intended to exclude anyone on the basis of race, or even to benefit particular racial groups on the basis of race, but rather are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment. It is profoundly ahistorical to say, as the petitioners do, that those situations are precisely equivalent, and it also trivializes the grievous moral and legal wrongs of state-sponsored segregation and the enormous harms that millions of Americans suffered under it.”

Justice Alito drilled down on Harvard’s ratings of Asian-American applicants — and decried a “zero sum game.”

SFFA has alleged that Harvard discriminates against Asian-American applicants. That claim hinges on the fact that, in general, such students received lower ratings for their personal qualities than students from other racial groups did.

Justice Alito repeatedly pressed Waxman, the Harvard lawyer, for an explanation.

Waxman noted — correctly — that both a federal judge and appellate court found no evidence of discrimination within Harvard’s admissions process. And he downplayed the significance of personal ratings of applicants, stating that admissions officers pay them relatively little attention when evaluating students’ applications in their totality.

“It doesn’t make a statistical difference,” Waxman said.

“If it doesn’t matter, why do you do it?” Alito replied.

The justice didn’t appear satisfied with subsequent explanations. Nor did he and other conservative justices seem to accept the notion that Harvard and UNC only ever consider an applicant’s race and ethnicity a tip, or “plus factor.” When that happens, Alito said, “Those who don’t get the plus factor have what is essentially a negative factor.”

It was one of several moments when justices skeptical of Harvard’s and UNC’s policies revealed their apparent understanding of admissions outcomes as a zero-sum game.

Justice Neil M. Gorsuch asked about legacies and squash teams.

Gorsuch was among the justices who pushed lawyers for Harvard and UNC to explain admissions practices that disproportionately benefit white, affluent applicants. Specifically, preferences for legacies, children of donors, and athletes.

“Harvard argues that we have a compelling interest in diversity writ large …” Gorsuch said, “and among the diverse things that we need to have in our class are children of large donors … children of legacies, and a squash team. To what extent should this court be deferring to those interests?”

That prompted a follow-up from Justice Kavanaugh. When it comes to assessing adequate race-neutral alternatives, he told Waxman, “It seems that Harvard would have to sacrifice potentially something else to achieve what you think would be meaningful, sufficient racial diversity. … I think that’s a legal question we’re going to have to ultimately figure out: Does the university have to sacrifice those other things or not?”

It was just one of many skeptical questions that the court’s conservative majority rained down on the status quo in college admissions.



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