Following oral arguments in Students for Fair Admission v. Harvard on Monday, it seems likely that the Supreme Court will strike down the use of “race-conscious” admissions policies at colleges on the basis that they violate the Constitution’s guarantee of equal treatment under the law.
The reason is twofold. First, Harvard and the University of North Carolina could not come up with a standard by which they might determine whether their campuses had reached the optimal level of diversity. Indeed, they couldn’t even explain to the justices what this optimal level of diversity might look like.
During an exchange with Harvard lawyer Seth Waxman, for example, Justice Neil Gorsuch pressed Waxman on when the school might be able to do away with “race-conscious” admissions policies. Waxman acknowledged, as the Supreme Court did in Grutter v. Bollinger, that “race-conscious” admissions policies are not preferable to race-neutral policies and that they should be viewed only as a temporary, remedial measure.
However, Waxman admitted Harvard has no idea when these policies might no longer be necessary. Certainly not by 2028, he claimed. “We are very definitely getting closer to a termination point,” he said.
The University of North Carolina gave a similar answer when pressed about its own timeline. Justice Amy Coney Barrett asked the school whether it believes racial preferences will still be necessary by 2040, to which the university gave a half-hearted pledge to work toward race-neutral alternative policies.
In other words, there will never be an end to affirmative action unless the court or Congress demands one. And Harvard and UNC’s answers make it clear that there is no amount of diversity that can ever be considered enough — in large part because no one seems to know what diversity even is or how to measure it.
Justice Clarence Thomas made this point during an exchange with North Carolina Solicitor General Ryan Park, asking him to provide a clear definition of what diversity is, according to the University of North Carolina.
“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” said Thomas. “It seems to mean everything for everyone.”
Park responded by claiming the school understands diversity as a “broadly diverse set of criteria that extends to all different backgrounds and perspectives and not solely limited to race.”
But even this is insufficient. If diversity is, as Justice Sonia Sotomayor put it, the ability to walk into a college classroom, corporate office, hospital, etc. and see a population that “looks like America,” then Harvard’s student body should only be 13.6% black when it is currently 15.2% black. Likewise, its student body should be 75.8% white, whereas right now, its student body is only 37.1% white.
Justice Samuel Alito pressed this point when he asked the University of North Carolina to explain when a student could honestly be considered as falling within a minority category. Does the student need to be half black to call himself black? What if the applicant has a great-grandmother who was Native American? Is she allowed to identify on her application as Native American? The school had no response to this question, saying applicants are allowed to self-report as they see fit.
Similarly, Justice Brett Kavanaugh asked the University of North Carolina to explain how Middle Eastern applicants ought to identify themselves. There is no specific racial box on an application for the Middle Eastern ethnicity. Middle Easterners are not white and are therefore considered a minority, but they are unable to identify themselves as such. To this, the University of North Carolina had no answer, admitting that it had no idea which box a Middle Eastern applicant should check.
The second problem that Harvard and the University of North Carolina ran into is that they failed to prove why diversity for the sake of diversity is an asset that justifies an extraordinary departure from the law. The departure, in this case, is the consideration of a person’s race as a determining factor for admission. Neither school could point to the specific educational benefits the school receives from this admissions practice beyond vague references to campus culture and how their minority students might feel on campus if it didn’t look like them.
Harvard even admitted at one point that its use of race as a determining factor could amount to discrimination against Asian American students, but only in the same way that using an applicant’s ability to play the oboe as a determining factor might be discriminatory against non-oboe-playing applicants. To that claim, Chief Justice John Roberts replied: “We did not fight a civil war over oboe players.”
Justices Sotomayor and Ketanji Brown Jackson certainly did their best to defend the schools’ racial preferences, suggesting repeatedly that those who disagree with them simply don’t care whether minorities are admitted to colleges and that diversity at large is a good enough reason to discriminate in favor of some and against others. Jackson even said she doesn’t understand how the use of racial preferences could disadvantage anyone.
Both of these claims are an insult to the bench on which they sit. No one in this case is arguing that they want to see black admissions drop. In fact, Students for Fair Admission has proposed race-neutral alternative policies that would likely increase black admissions in universities nationwide. Moreover, even if black admissions did drop, there is still no justification for giving certain applicants an advantage over others for no reason other than the color of their skin. That is racism, plain and simple.
Proponents of affirmative action revealed before the court what has long been true: It is a vague policy that relies on deliberately ill-defined or meaningless terms such as “diversity” and “race.”
The fact is that none of the schools using racial preferences in their admissions policies have any idea what true diversity might look like, nor can any of them measure it. They claim that “diversity” includes more than just race, but they admitted that they don’t take those other factors into consideration.
In other words, these schools are asking the court for license to discriminate against people with certain skin colors and ethnicities in order to favor others because of some made-up ideal of “equity” that they can’t even define. It’s a poor argument, and the court ought to consider it refuted by the law and the Constitution.
