Jess Bravin and Melissa Korn, Wall Street Journal, October 31, 2022
The Supreme Court heard nearly five hours of arguments Monday over whether colleges can consider race in admissions decisions, a practice the justices approved in 1978 and repeatedly reaffirmed but today’s more conservative majority is ready to reconsider.
The affirmative-action suits are among the most significant the court will hear this term, highlighting the role of race in American society and raising questions about what criteria are fair for choosing students for prestigious and highly competitive universities.
The two cases involve the University of North Carolina, a state flagship, and a private Ivy League institution, Harvard College, but the practices at issue prevail at most of the nation’s selective colleges and universities. The court’s decision, expected before July, could force an overhaul of admissions criteria that have favored Black and Hispanic applicants as well as athletes and children of alumni, donors and employees.
Both suits were filed by Students for Fair Admissions, a group founded by conservative activist Edward Blum, who has brought several cases to the Supreme Court seeking to end practices that take race into account.
Liberal justices stressed the significance of diversity throughout society while conservatives argued against classifying individuals by race. Every member of the court attended a selective college—and nearly all of their alma maters have filed briefs urging that current admissions practices be retained.
The justices focused early Monday on what attributes of applicants schools could consider if the challengers prevailed, given that race plays a role in the identity and experience of many students. “If you don’t include that, then what do you include on the application?” Justice Clarence Thomas asked of Patrick Strawbridge, a lawyer representing SFFA.
“These are the pipelines to leadership in our society,” Justice Elena Kagan said of universities. “And if universities aren’t racially diverse, then all of those institutions are not going to be racially diverse either.” Briefs filed by dozens of U.S. companies made a similar argument in supporting current affirmative-action programs.
One critical issue in both cases is whether the schools seriously considered race-neutral alternatives to enrolling a diverse student population, for instance by considering applicants’ socioeconomic status or whether their parents attended college, or by increasing financial aid.
Harvard lawyer Seth Waxman, a solicitor general in the Clinton administration, told the court the college had tested various race-neutral means of raising minority enrollment, such as boosting financial aid and, for a period, eliminating the early admission program. None, Mr. Waxman said, could produce the diversity that consideration of race allowed.
In the course of the day’s questioning, justices asked whether schools could award preferences for descendants of slaves or for the children of immigrants. They questioned whether applicants should be able to submit essays in which they expressed pride in their heritage, suggesting it was difficult to discern exactly what would be acceptable if Mr. Blum’s group prevailed.
Ryan Park, the North Carolina solicitor general representing the state university, faced vigorous questioning from conservatives on the bench.
“I’ve heard the word diversity multiple times and I don’t have a clue what it means,” said Justice Thomas, asking Mr. Park to detail the educational benefits of racial diversity at UNC specifically. When Mr. Park said it fostered a richer learning environment and reduced bias, Justice Thomas interrupted. “You still haven’t given me the educational benefits,” he said.
Mr. Waxman said for highly qualified candidates on the cusp of admission, “being African-American or being Hispanic or in some instances being Asian American can provide one of many, many tips.”
“You have to concede that if it provides one of many, then in some cases it will be determinative,” Chief Justice John Roberts said.
“I do, I do concede that,” Mr. Waxman said.
“OK, so we’re talking about race as a determining factor in admission to Harvard,” Chief Justice Roberts said.
Mr. Waxman replied: “Race, for some highly qualified applicants, can be the determining factor, just as being the, you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.”
“Yep, but we did not fight a civil war about oboe players,” Chief Justice Roberts said. “We did fight a civil war to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.”