Justice Ketanji Brown Jackson said she fears for equal protection for and the rate of minority college applicants if the conservative Supreme Court majority overturns affirmative action and ends the ability for universities to exercise race-based admissions policies.
Jackson, the first black woman and newest justice on the Supreme Court, joined with the two other Democratic-appointed justices in expressing skepticism about the harms Asian American students have allegedly suffered due to affirmative action policies at the public University of North Carolina at Chapel Hill, one of two cases argued on Monday that could reshape nearly 40 years of affirmative action precedent in the nation.
“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,” Jackson told attorney Patrick Strawbridge, who argued on behalf of the conservative organization Students for Fair Admissions.
HARVARD BEGS SUPREME COURT TO KEEP AFFIRMATIVE ACTION AND PROTECT ‘STUDENT BODY DIVERSITY’
The nearly three hours of arguments over UNC’s admissions policies could lead the justices to end close to four decades of affirmative action precedent, as Strawbridge argued on Monday that the university disproportionately harmed Asian American applicants and that institutions nationally should amend their policies to adopt “race-neutral” standards.
A second argument period over similar policies at the private Harvard University follwed UNC’s case. Jackson did participate in the Harvard arguments due to a conflict of interest.
Liberals voice concerns about the fate of affirmative action
In expressing her worries about the equal protection clause of the 14th Amendment, Jackson presented a hypothetical about two students who applied for UNC, both of whom said their families had been in North Carolina for “generations.” However, one student said they would be the fifth generation to graduate from UNC, while the other said their family members were slaves and never had the chance to attend the college.
Strawbridge contended there would be nothing wrong with UNC “honoring those who have overcome slavery or recognizing its past contribution to racial segregation.”
Echoing Jackson’s concerns, Justice Elena Kagan asked Strawbridge whether it’s “just too bad” if minority student admissions “fell through the floor.” Strawbridge expressed doubts with her hypothetical, noting that Florida has race-neutral standards with demographics similar to those of North Carolina but “actually achieves better racial diversity.”
When asked by Republican-appointed Justice Samuel Alito about what scenarios diversity could be mentioned in a college application essay while remaining within race-neutral standards, Strawbridge contended there would be some exceptions to allow diversity to be considered.
“Suppose that a student is an immigrant from Africa and moves to a rural part of western North Carolina … and I had to deal with cultural differences, would that be permissible?” Alito asked. In response, Strawbridge said it would be permissible since race was not part of the question.
But Kagan interjected, saying, “That’s slicing the bologna awfully thin” because “race is part of culture.”
Jackson also alleged that Strawbridge was objecting to the “use of race standing alone,” arguing that “there are 40 factors about all sorts of things that the admissions office is looking at.”
Still, Strawbridge said that the landmark 2003 Grutter v. Bollinger case, which affirmed the partial use of race in admissions, should be overturned entirely. “Any consideration of race will give rise to injury … You’re being denied the opportunity to compete on a fair playing field,” he added.
UNC’s expert witness has said that 1.2% of applicants had their race taken into consideration, out of roughly 40,000 total applications.
Conservatives push back on race-based admissions
Chief Justice John Roberts, who has long voiced skepticism about affirmative action, asked Strawbridge “is it the case” that African American UNC applicants can highlight a racial aspect of their background and whether people working in the admissions office can “take that into account.”
“Yes,” Strawbridge said, adding that “we object” to the current standard that allows admissions offices to take into account any factors concerning race.
Justice Clarence Thomas, who is black and a Republican appointee who makes his opposition to affirmative action no secret, went as far as to say he doesn’t understand the definition of “diversity” often touted by universities.
“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” Thomas said, adding that “it seems to mean everything for everyone.”
Thomas later raised UNC’s argument that failing to consider race means failing to consider a whole person. Asking Strawbridge how the school might remedy this dispute, the attorney said UNC could look at a student’s life experience.
Similarly, Justice Brett Kavanaugh wanted clarity about what would constitute a race-neutral admission standard, noting, “We have to think forward about what will happen if you prevail in this case.”
Where affirmative action is heading
The 6-3 Republican-appointed majority on the high court could be poised to rule that affirmative action policies are unconstitutional when a judgment on the UNC and Harvard cases comes next year. Still, the three Trump appointees on the high court do not have extensive records on cases involving racial preferences from their tenure as appeals court judges.
Vermont Law and Graduate School President Rod Smolla told the Washington Examiner after oral arguments that “higher education should brace for impact,” noting, “Six justices appear prepared to eliminate race-conscious admissions.”
“The open question is whether there will be moderating language from the court which would permit applicants to themselves refer to race in their application narratives, not for universities to use ‘as such,’ but as evidence of having overcome past obstacles,” Smolla added.
A recent Washington Post-Schar School poll found that 6 in 10 U.S. residents say race should not be considered in college admission, though an equally robust majority endorse programs to increase racial diversity at universities.
During the latter half of UNC’s oral arguments, Justice Department Solicitor General Elizabeth Prelogar referenced repeated questions by Justice Amy Coney Barrett, who cited retired Justice Sandra Day O’Connor’s language in Grutter that race-conscious admissions programs should be “limited in time.”
The DOJ has posited that the pair of cases heard on Monday was a “poor vehicle” for reexamining affirmative action precedent. Still, Prelogar admitted that “eventually there is an endpoint in sight” for affirmative action, adding that “it comes directly from the court’s narrow tailoring doctrine in this area.”
AFFIRMATIVE ACTION ON THE LINE AS SUPREME COURT HEARS HARVARD AND UNC ADMISSIONS CASE
“I think that diversity in higher education is absolutely a compelling interest, and it will remain so — that is constant, that’s not going to change. But our society is going to change in ways that enable more and more universities and colleges to try to achieve the benefits of educational diversity without having to take race explicitly into account,” Prelogar added.
Final separate opinions over the cases will likely come by the summer of 2023.
