By Donna King, Carolina Journal
Supporters and critics will have to wait — likely until next June — to learn the fate of race-based admissions at the University of North Carolina at Chapel Hill. The U.S. Supreme Court heard more than 2 1/2 hours of arguments Monday for and against UNC’s admissions policies.
Justices later heard arguments in a separate case challenging the use of race in admissions at Harvard. Decisions in the two cases are likely to affect admissions policies at public and private universities across the country.
“Racial classifications are wrong,” said attorney Patrick Strawbridge in his opening statement. Strawbridge represents Students for Fair Admissions, the group challenging admissions policies at UNC-CH and Harvard. “That principle was enshrined in our law, at great cost, following the Civil War.”
A 2003 U.S. Supreme Court precedent in Grutter v. Bollinger defies that principle, Strawbridge argued. Grutter allowed universities to continue using race as a factor in admissions. “Grutter is grievously wrong.”
The Supreme Court’s newest member, Justice Ketanji Brown Jackson, questioned Strawbridge’s assertion that UNC-CH used race to admit some students while keeping others out.
“You keep saying we object to the use of race standing alone,” Jackson said. “But as I read the record and understand their process, it’s never standing alone. It’s in the context of all the other factors. There are 40 factors about all sorts of things that the admissions office is looking at, and you haven’t demonstrated or shown one situation in which all they look at is race.”
Justice Elena Kagan raised concerns about the potential negative impact of removing all consideration of race from admissions decisions, as SFFA supports. “In your view, it really wouldn’t matter if there was a precipitous decline in minority admissions … African-American, Hispanic, one or the other,” she said. “Suppose that it just fell through the floor. … Too bad?”
Justice Sonia Sotomayor also focused on the potential decline of minority enrollment. “There is a high price to pay by banning the minor use of race in college admissions,” she said “In the end, our colorblindness, whatever that means, … that comes at a high cost, not only to UNC and to the state and the nation as a whole.”
Chief Justice John Roberts responded to his colleagues’ concerns. “The discussion has been about the dramatic plummeting of the number of African-American students that would take place if the practice of checking a box is taken away,” Roberts said. “My suggestion is, if it’s not, then maybe there will be an incentive for the university to, in fact, truly pursue race-neutral alternatives.”
Justice Clarence Thomas questioned N.C. Solicitor General Ryan Park’s argument in favor of promoting diversity among the UNC student body.
“I have heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.”
Later in the hearing, Thomas asked whether diversity provides any tangible academic benefits. “You’ve got studies that show people feel better and they don’t feel isolated,” he said. “I’m focusing on what you went to college to do.”
Justice Neil Gorsuch asked how the university can pursue its diversity goals without tracking the number of students admitted. Previous court rulings have banned racial quotas.
“I’m struggling still to understand how you distinguish between what this court has said is impermissible — a quota — with what you argue should be permissible going forward, which is diversity,” Gorsuch said. “How can you do diversity without taking account of numbers?”
Justice Samuel Alito followed a similar line of questioning. “What is your goal, and how will a court ever be able to determine whether your goal has been reached?”
Justices Amy Coney Barrett and Brett Kavanaugh both paid special attention to a key time element of the 2003 Grutter ruling. The majority opinion in that case suggested that race preferences in higher education should end in 25 years. The Supreme Court is likely to decide the UNC case 20 years after Grutter.
“Grutter doesn’t say this is great. We embrace this,” Barrett said. “Grutter says this is dangerous, and it has to have an endpoint.”
Kavanaugh pressed Park on the issue of ending racial preferences at some date. “The difficulties you’re having about answering some of these questions about endpoint were probably in the mind of Justice [Sandra Day] O’Connor when she wrote the opinion in Grutter,” he said. “These racial classifications are dangerous and must have a logical endpoint.”
The federal government’s top U.S. Supreme Court lawyer backs UNC’s use of race in admissions. “When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens, and better leaders,” said U.S. Solicitor General Elizabeth Prelogar.
SFFA filed suits against both Harvard and UNC-CH in 2014. Harvard won its case at both the trial and appellate court level UNC won at the trial court level, and the Supreme Court took the rare step of bypassing the Appeals Court to hear SFFA’s arguments.
The cases originally had been joined for oral arguments. They were separated to allow Jackson to participate in the UNC case. Jackson recused herself from the Harvard case because of her recent service on the school’s Board of Overseers.
Rulings in both cases are likely near the end of the Supreme Court’s term next June. The two cases generated nearly 100 amicus, or friend-of-the-court briefs, for and against the universities’ policies.