SCOTUS conservative justices appear signal end to Affirmative Action in higher ed

by Chris Lange

Chris Lange, FISM News


The U.S. Supreme Court’s conservative majority on Monday appeared dubious of Affirmative Action in higher education during oral arguments in two high-profile cases challenging race-based admissions policies at Harvard and the University of North Carolina.

Throughout the nearly five hours of oral arguments, the high court’s conservative justices appeared to be receptive to arguments made by counsel for Students for Admissions (SFFA), the group challenging the racial component of the schools’ admissions policies. Pointed questions to counsel representing the schools, the Biden administration, and other defendants also hinted at an impending death knell for Affirmative Action practices in higher ed, which would have broad implications in other aspects of American life, including corporate hiring practices.

During arguments involving the admissions policies at the University of North Carolina, Justice Clarence Thomas challenged state Solicitor General Ryan Park’s assertion that adding race to the list of factors considered in admission determinations leads to “more efficient outcomes.”

Asked by Thomas to explain exactly how race-conscious admissions policies benefit the public university, Park replied that studies on stock trading results show that “racially diverse groups of people … perform at a higher level.”

“The mechanism there is that it reduces groupthink and that people have longer and more sustained disagreement, and that leads to a more efficient outcome,” Park said.

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

The conservative justice also said, “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means.”  

‘We did not fight a civil war about oboe players’

Another particularly noteworthy and somewhat heated exchange occurred between Chief Justice John Roberts and Seth Waxman, a lawyer representing Harvard. SFFA’s complaint against Harvard includes an additional claim that the school’s admissions policy specifically discriminates against Asian American applicants and that the school’s subjective “personal ratings” scores are informed by racial stereotypes.

Under tough questioning from Roberts, Waxman conceded that race is sometimes a determinative factor in admissions decisions.

“Okay, so we’re talking about race as a determining factor in admission to Harvard,” Roberts said.

“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,” Waxman replied.

“Yeah. We did not fight a civil war about oboe players,” Roberts said. “We did fight a civil war to eliminate racial discrimination, and that’s why it’s a matter of considerable concern. And I think it’s important for you to establish whether or not granting a credit based solely on skin color is based on a stereotype when you say this brings diversity of viewpoint.”

Roberts also touched on one of SFFA’s points of contention with the schools: their failure to pursue race-neutral methods to achieve diversity. 

The Chief Justice said that if “checking the box with race is taken away,” schools could pursue “race-neutral” alternatives such as letting students write essays that “indicate experiences they have had because of their race.”

Another telling question was posed by Justice Samuel Alito.

“What is your response to the simple argument that college admissions are a zero-sum game?” he asked an attorney representing a group of students who joined the suit in support of race-conscious admissions. 

“And if you give a plus to a person who … falls within the category of ‘underrepresented minority’ but not to somebody else, you’re disadvantaging the latter student?” he asked.

Liberal justices likely support Affirmative Action

The court’s liberal-leaning justices, unlike their conservative colleagues, appeared to support the continuation of race-based admissions policies.

Justice Elena Kagan asserted that SFFA is essentially arguing that racial diversity is irrelevant in an American society that is, in fact, quite diverse.

“I thought that part of what it meant to be an American and to believe in American pluralism is that actually, our institutions are reflective of who we are as a people in all our variety,” Kagan said.

During a colloquy with SFFA lawyer Patrick Strawbridge in the UNC case, the bench’s newest appointee, Justice Ketanji Brown Jackson, questioned why schools should be allowed to consider applicant identity markers like veteran or disability status and not race.

“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,” she said. Jackson recused herself from the Harvard case due to her role as a member of the school’s board of overseers.

A final ruling in the cases is not expected to be rendered until mid-2023.

This article was partially informed by The Hill, Reuters, and Fox News reports.