The U.S. Supreme Court is widely expected to rule against admissions programs that take race into consideration at Harvard and the University of North Carolina (UNC).
The court spent over five hours on Monday hearing arguments for and against affirmative action, which for years has been backed by decades of precedent upheld by narrow court majorities. The two landmark cases being argued are Students for Fair Admissions v. President and Fellows of Harvard (Case No. 20-1199) and Students for Fair Admissions v. University of North Carolina (Case No. 21-707). The plaintiffs contend in part that Asian students are disadvantaged by affirmative action in race-conscious university admissions policies.
Observers posit that the new conservative court, which sits at a 6-3 conservative-liberal majority, could be ready to overrule some or all affirmative action precedents and deem the programs unlawful. Such a decision could significantly affect affirmative action at colleges and universities across the country and effectively diminish the number of Black and Hispanic students in higher education.
In their aim for a more diverse student body, UNC, a state school, and Harvard, a private institution, argue that an admissions committee “need not ignore a candidate’s race” when evaluating a candidate.
Meanwhile, Students for Fair Admissions (SFFA), a conservative organization founded by legal activist Edward Blum, is seeking to overturn the Supreme Court’s 2003 ruling in the case Grutter v. Bollinger, which determined that colleges could consider race in their admissions in order to have diverse campuses.
The justices heard from a total of five lawyers during the Monday hearing: three arguing on behalf of Harvard and the University of North Carolina and two former clerks to Justice Clarence Thomas arguing for SFFA.
Thomas, a long-time affirmative action critic, said: “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”
Justice Sonia Sotomayor pointed out that the 14th Amendment took race into account when it was adopted after the Civil War to help Black Americans get access to rights and privileges previously denied to them.
Justice Neil Gorsuch noted reports
that Asian American applicants have resorted to applying to programs without disclosing their race to improve their chances of admission into more competitive schools.
SFFA lawyer Patrick Strawbridge argued that the affirmative action policies that have benefited Black applicants have left Asian applicants disadvantaged.
Underscoring his point that the policies are unfair and unconstitutional, Strawbridge said, “Some races get a benefit, some races do not get a benefit.”
Harvard lawyer Seth P. Waxman argued that many factors contribute to how the institution admits its students.
“Race for some highly qualified applicants can be the determinative factor, just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip,” he was quoted as saying.
Although it has been shown that Asian Americans tend to support affirmative action, they are still harmed by stereotypes that maintain Asians as less personable, which may be reflected in Harvard’s own history of giving Asian applicants lower personality scores.
The justices discussed several race-neutral approaches to admission: preferences based on socioeconomic status; “top 10 programs” in which students who graduate near the top of their high school classes get admitted; and the elimination of preferences for children of alumni and major donors, who are usually white.