Law & Courts

As a Skeptical Supreme Court Weighs Race in College Admissions, ‘Brown’ Looms Large

By Mark Walsh — October 31, 2022 8 min read
Members of the NAACP Youth and College division rally outside the U.S. Supreme Court as justices heard oral arguments on two cases on whether colleges and universities can continue to consider race as a factor in admissions decisions Oct. 31, 2022.
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The U.S. Supreme Court’s conservative majority on Monday signaled its skepticism of race-conscious college admissions policies, but the justices seemed hesitant to issue a sweeping ruling barring all consideration of race in education.

The five-hour argument focused on the particulars of admissions at the University of North Carolina and Harvard University. But K-12 school districts have also faced legal challenges over the consideration of race in admissions, for example in magnet and other selective schools.

Early in the argument, Patrick Strawbridge, a lawyer representing the organization challenging race-conscious admissions, made the point that in place of race, colleges could ask about applicants’ experiences, such as where they grew up or their socioeconomic status.

“You include all sorts of things that actually lead to broader diversity of viewpoints,” said Strawbridge, arguing on behalf of Students for Fair Admissions. “The assumption that race necessarily informs something about anyone’s qualifications is antithetical to this court’s precedents and to our Constitution.”

Justice Sonia Sotomayor, who has voted to uphold race-conscious admissions, pushed back.

“Sometimes race does correlate to some experiences and not others,” she said. “If you’re Black, you’re more likely to be in an underresourced [K-12] school. You’re more likely to be taught by teachers who are not as qualified as others. You’re more likely to be viewed as … having less academic potential.”

Near the very end of the arguments, Justice Elena Kagan cited a key contention that challengers of affirmative action had discussed in their briefs: that the court’s 1954 desegregation decision in Brown v. Board of Education of Topeka sets a colorblind standard.

Strawbridge raised the issue in his opening statement, saying that “this court’s landmark decision in Brown finally and firmly rejected the view that racial classifications have any role to play in providing educational opportunities.”

Kagan, who was recused from the court’s two most recent cases on affirmative action in education, both involving the University of Texas at Austin, made clear in her comments Monday that she supports race-conscious admissions. She posed the question about the challengers’ Brown theory to U.S. Solicitor General Elizabeth B. Prelogar, who was arguing in support of the University of North Carolina and Harvard.

“I think that argument is wrong in just about every respect,” Prelogar said. “There is a world of difference between the situation this court confronted in Brown, the separate but equal doctrine that was designed to exclude African Americans based on notions of racial inferiority … and the university policies at issue in this case, which … are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment.”

Sharp challenges from the chief justice

During the arguments in Students for Fair Admissions v. University of North Carolina (No. 21-707) and Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199), the court’s more-conservative members expressed their skepticism about the use of race.

Chief Justice John G. Roberts Jr., who has voted against race-conscious admissions and to limit K-12 schools’ consideration of race in assigning students to schools, had a sometimes tense exchange with the lawyer defending Harvard’s admissions program.

After Roberts got Seth P. Waxman to concede that race is sometimes the determining factor for some applicants, Waxman said, “Race … for some highly qualified applicants can be the determinative factor, just as being … you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.”

“Yeah. We did not fight a Civil War about oboe players,” the chief justice responded. “We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.”

Besides Roberts, Justices Clarence Thomas and Samuel A. Alito Jr. have voted against affirmative action in education for years. There was anticipation for how the court’s newer members would approach the cases, since Justices Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson have not ruled directly on such issues before either as justices or lower-court judges.

Gorsuch referred several times to Harvard’s original adoption of a holistic admissions system in the early 20th century at a time it was looking for an indirect way to tamp down enrollment of Jewish students.

Gorsuch suggested Harvard took that approach in the 1920s “because it wanted to impose a quota on Jewish applicants, but it didn’t want to [do it] through the front door, so it used diversity as a subterfuge for racial quotas.”

Waxman, a former U.S. solicitor general under President Bill Clinton, said the Jewish quotas were brought about by Harvard’s then-president and that the university has acknowledged the history and is “ashamed,” but that legacy has no bearing on Harvard’s current admissions process.

Gorsuch asked Ryan Y. Park, the North Carolina solicitor general representing UNC, that since the court has said a quota is impermissible, “How can you do diversity without taking account of numbers?”

“We do so by looking at the individual applicant,” Park said. “We do not have some sort of racial target or a target for other diversity metrics, for example.”

Barrett, and other justices, asked repeatedly about a line in Justice Sandra Day O’Connor’s opinion for the court in the 2003 decision in Grutter v. Bollinger, which upheld a holistic review system that took race into account for admissions to the University of Michigan’s law school. O’Connor said at the time, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

“When is your sunset?” Barrett asked Park. “When will you know? Because Grutter very clearly says this [race-conscious admissions] is so dangerous. Grutter doesn’t say this is great, we embrace this. Grutter says this is dangerous and it has to have an end point.”

Park said UNC supports a “durational limit” on the use of race, but he declined to say when the university would be ready to end such consideration. Waxman, for his part, said Harvard supports the idea of a time limit on affirmative action but “does not currently, based on its data, expect that in 2028 it will have achieved—been able to use only race-neutral alternatives.”

Kavanaugh, who has called Brown the court’s “greatest moment,” told Prelogar that he appreciated her statement about the landmark school desegregation decision.

But he asked Park about the challengers’ arguments that states where affirmative action in education has been prohibited have shown that racial diversity goals may be met even without race-conscious admissions.

Kavanaugh, referring to arguments by the challengers, noted that in the two decades since Grutter, states such as California, Washington, and Michigan, among others have gone that route “but at the same time produce significant numbers of minority students on campuses.”

Calls for race neutrality versus ‘standing firm’ for racial equality

Jackson, the court’s newest justice, participated only in the argument in the North Carolina case. A former member of Harvard’s Board of Overseers, she has recused herself from the Harvard case. Jackson appeared sympathetic to UNC’s arguments in favor of race-conscious admissions.

How is UNC “taking into account race independent of the rest of the information in a holistic review process?” Jackson asked Strawbridge, the lawyer representing Students for Fair Admissions. “You keep saying we object to the use of race standing alone. But, as I read the record and understand [UNC’s] process, it’s never standing alone, that it’s in the context of all of the other factors. There are 40 factors about all sorts of things that the admissions office is looking at.”

She referred to the University of North Carolina’s legacy of excluding Black students for generations, and its being behind other states’ flagship universities in achieving racial diversity goals. “That might account for why the sort of 25-year expiration deadline can’t really be blanketly applied, because we start in different places with respect to how race has been considered to exclude people in our various communities,” she said.

Cameron T. Norris, another lawyer arguing for Students for Fair Admissions, summed up his side’s position by saying that racial classifications by themselves have harms.

“They stigmatize their intended beneficiaries, they increase racial consciousness, which delays the day in which we can move to true racial neutrality,” Norris said. “And they cause resentment by treating people differently based on something they can’t change that’s cosmetic and it’s irrelevant to their ability to get educational opportunities.”

But David G. Hinojosa of the Lawyers’ Committee for Civil Rights Under Law, which represents a group of University of North Carolina students and alumni who intervened in that case to support race-conscious admissions, told the justices that the court “must stand firm in its commitment to ensuring racial equality and equal opportunity.”

Citing Brown, Grutter, and other Supreme Court precedents on race in education, Hinojosa said “this court has recognized the paramount roles that integrated education and cross-racial interactions play in building a true democracy, where pathways to leadership are visibly open to all qualified candidates.”

A decision in the case is expected by next June.

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