[Politics] Affirmative action: Supreme Court signals skepticism of race-conscious college admissions

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WASHINGTON – The Supreme Court's conservative majority signaled deep skepticism Monday over the use of race-conscious admissions at American colleges in one of the most controversial issues to come before the court this year, questioning the boundaries of such efforts and whether they are needed to ensure diversity. 

At issue are policies at Harvard College and the University of North Carolina that permit admissions offices to weigh the race of applicants as one of many factors that help decide who will be accepted. Depending on the scope of the court's ruling, the outcome could have profound implications beyond higher education – spilling over into workplace diversity programs and other efforts to confront longstanding discrimination. 

During nearly five hours of at times heated arguments, several of the court's conservatives noted that a 2003 precedent that permits the use of race in admissions had urged that such policies shouldn't be in place indefinitely. How, the court's conservative justices asked, will supporters of the policies determine whether the goals had been reached? 

"I don't see how you can say that the program will ever end," said Chief Justice John Roberts, who has opposed race-conscious policies in the past. "Your position is that race matters because it's necessary for diversity, which is necessary for the sort of education you want. It's not going to stop mattering at some particular point."

In arguments later in the day dealing specifically with Harvard, Associate Justice Samuel Alito pressed a lawyer representing the institution about how it considers prospective Asian American students. Part of the claim from the anti-affirmative action group that brought both lawsuits is that the policies discriminate against Asian American students by giving them lower scores for personal attributes. Harvard's attorney, Seth Waxman, argued that lower courts had rejected those claims.

"So what are you saying when you're up here in 2040, are you still defending it?" Associate Justice Amy Coney Barrett asked. "Like this is just indefinite?"

Associate Justice Clarence Thomas, who has opposed race-conscious admissions in the past, pressed the attorney representing North Carolina for a definition of diversity and its benefits.

"I've 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." 

Ryan Park, arguing on behalf of UNC, said that diversity "reduces groupthink" and "leads to a more efficient outcome" in seeking truth.

"I don't put much stock in that," Thomas said, "because I've heard similar arguments in favor of segregation." 

As a majority of the court appeared prepared to revisit decades worth of the court's precedents on affirmative action, the liberal justices defended the need for race-conscious policies.

"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," Associate Justice Elena Kagan said.

Associate Justice Ketanji Brown Jackson said she worried a win for the plaintiffs would mean colleges could consider "all of the other background and personal characteristics of other applicants, but they can't value race."

Alito offered a hypothetical where an immigrant from an African country moves to a rural and mostly white part of North Carolina and describes in an admissions essay how he or she had to confront a different culture. Wouldn't that be permissible, Alito asked. 

Patrick Strawbridge, representing the anti-affirmative action group, said it probably would be permitted.

"Because the preference in that case is not being based upon the race, but upon the cultural experiences," Strawbridge said.

That prompted a quick response from Kagan.

"Race is part of the culture and the culture is part of the race, isn't it?" Kagan said. "I mean, that's slicing the bologna awfully thin."

Years in the making, the Harvard and UNC litigation arrives at the Supreme Court as the nation continues to wrestle with the fallout from the decision in June to overturn Roe v. Wade and end the constitutional right to abortion. The two cases are among several this term that require the court's 6-3 conservative majority to confront the fraught issue of race in America as well as questions about the extent to which the government may consider race to remedy discrimination.

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