Here Are the Key Exchanges from Supreme Court Oral Arguments in the Harvard, UNC Affirmative Action Cases

Lawyers representing Harvard, UNC, and SFFA faced sharp questions from justices at the Supreme Court on Monday.
By Vivi E. Lu and Leah J. Teichholtz

Seth P. Waxman ’73 represented Harvard in oral arguments on Monday.
Seth P. Waxman ’73 represented Harvard in oral arguments on Monday. By Julian J. Giordano

Eight years after anti-affirmative action group Students for Fair Admissions first sued Harvard for its consideration of race in admissions, the Supreme Court heard the case alongside a similar suit against the University of North Carolina.

Here are the key exchanges that took place during Monday’s oral arguments.


Personal Ratings of Applicants

During opening arguments before the justices Monday, SFFA lawyer Cameron T. Norris alleged Harvard discriminates against Asian American applicants by assigning them “significantly lower personal ratings” — a score that measures applicants’ character — than to any other group.

Former U.S. Solicitor General Seth P. Waxman ’73, who argued on behalf of Harvard, pointed to two lower court rulings that declared the College did not discriminate against Asian applicants in the admissions process.

“There was consistent, unambiguous, and convincing testimony there was no discrimination in the admissions process in general, and the personal rating in particular,” Waxman said.

“The record shows that Asian student applicants get the lowest personal scores of any other group,” Justice Samuel A. Alito Jr. said in response. “It has to be one of two things: It has to be that they really do lack integrity, courage, kindness, and empathy to the same degree as students of other races, or there has to be something wrong with this personal score.”

Waxman said the personal rating is assigned by an application’s first reader “just as a matter of triage,” but “fades into the background” once other admissions officers review the application.

“It is not the basis of admissions decisions,” Waxman said. “Not only did the court find as fact that that slight disparity was not evidence of discrimination, even in the personal rating, but it had no effect with respect to outcomes.”

Extent of Harvard’s Alleged Discrimination against Asian Applicants in Admissions

Following Alito’s questioning, Chief Justice John G. Roberts ’76 interjected to press Waxman about Harvard’s alleged racial discrimination against Asian applicants.

“So there’s only a little racial discrimination in the case?” Roberts said.

“You’re asking me to answer a question that assumes that Harvard is discriminating on the basis of race?” Waxman said. “No, I can’t accept that.”

“Isn’t that what the case is about? The discrimination against Asian Americans?” Roberts said.

Waxman agreed with Roberts that if race provides “one of many” tips, then it is “in some cases” a determining factor in admission to Harvard.

“Race, for some highly qualified applicants can be the determining 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 said.

“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.”

“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 — it may not bring diversity of viewpoint in a particular case at all,” Roberts added.

Preference for ALDCs

Justice Clarence Thomas questioned Waxman on Harvard’s preference for “ALDCs,” an acronym used for athletes, legacy students, students on the dean’s interest list, and children of faculty and staff, citing findings in SFFA’s petition.

“They argue that you’re over 80 percent wealthy students — that’s not diverse — and that over 30 percent of a class is made up of ALDC students,” Thomas said. “If you were to lower those numbers, you could achieve far more diverse results along socioeconomic lines.”

“And I don’t think it’s arguable that Harvard is socioeconomically diverse; at least, it doesn’t appear that way,” Thomas added.

Waxman rebutted by saying that if ALDC preferences were eliminated, overall racial diversity would decrease.

“The representation of African Americans, if you just stopped considering race, would go from 14 to 6 percent. But if you also stopped considering ALDCs, it would go to 5 percent,” Waxman said.

Justice Neil M. Gorsuch questioned Waxman about a hypothetical scenario in which a “very wealthy university” were able to “pay for everybody to go and still increase its endowment.”

“Let’s say if it just gave up preferences for donors, children, legacies, and squash athletes. Or maybe those who row crew, all of which tend to favor predominantly white children, and it could achieve whatever it deemed racial diversity,” Gorsuch said. “Would it then be permitted to engage in race consciousness?”

In his response to Gorsuch, Waxman referenced Simulation D, which simulated the results of Harvard’s admissions if the College were to eliminate the consideration of race and preferences for ALDC applicants and increase preference for low-income students. A lower court found that Simulation D “was not a workable alternative.”

“The district court found that ‘the Simulation D’ would require ‘sacrifices on almost every dimension important to Harvard's admissions process,’” Waxman said.

University of North Carolina

The Educational Value of Diversity

During oral arguments, Thomas asked Ryan Y. Park, the solicitor general of North Carolina who represented UNC during oral arguments, for a “specific definition of diversity” and its educational benefits for UNC.

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

“We value diversity of all different kinds and all the ways that people differ in our society,” Park responded. “On the educational benefits question, Your Honor, I don’t think it was actually disputed here that there are real and meaningful educational benefits that come with diversity of all kinds.”

Thomas, who wrote a dissenting opinion in the Grutter decision, asked Park to be explicit in the benefits of diversity for a college campus.

“I’d like you to tell me expressly when a parent sends a kid to college that they don’t necessarily send them there to have fun or feel good or anything like that,” Thomas said. “They send them there to learn physics, or chemistry, or whatever they’re studying, so tell me what the educational benefits are.”

In response, Park said diverse groups of people “perform at a higher level,” working together more efficiently and with less “groupthink.”

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

College Admissions as a Zero-Sum Game

Justice Sonia M. Sotomayor asked SFFA lawyer Patrick Strawbridge about whether race is the only factor or one of many in considering a college applicant.

Strawbridge said that college admissions is a “zero-sum game” and SFFA has “quarrels” with Grutter’s framework, which says race, if considered, must be one of many factors.

“If race is going to be encountered, that means some people are going to get in and some people are going to be excluded based on race,” Strawbridge said.

Justice Ketanji Brown Jackson ’92 asked Strawbridge whether the consideration of race leads to an “actual concrete particularized injury” that would give SFFA the standing to challenge its use in college admissions.

“I’ve been struggling to understand how race is actually factoring into the admissions process here and whether there’s any actual addressable injury that arises,” Jackson said.

Strawbridge again invoked Grutter in his response to Jackson, who argued that race is never the only factor in an admission decision and sharing one’s race on an application is voluntary.

“One of the problems with Grutter that I think illustrates this specifically is Grutter’s suggestion that race can only be used as a plus factor and never a minus factor,” Strawbridge said. “That makes no sense in a zero-sum game if we are going to consider race.”

An Expiration Date on Affirmative Action

In the landmark 2003 case Grutter v. Bollinger, former Supreme Court Justice Sandra Day O’Connor’s majority opinion upheld affirmative action but said the court expects the policies to “no longer be necessary” in 25 years.

During oral arguments Monday, several conservative justices questioned Park on the timeline for the end of race-conscious admissions.

“Suppose you assemble the student body in which the various racial groups coincide almost exactly to the percentage of those racial groups in the general population,” Alito said. “Would you say, ‘Okay, now we’ve done it, we’ve achieved diversity?’”

Park said that equal representation was not UNC’s goal, prompting further questioning from Barrett.

“When is your sunset? When will you know?” Barrett said. “Grutter doesn’t say, ‘This is great, we embrace this.’ Grutter says, ‘This is dangerous, and it has to have an endpoint.’ And I hear you telling Justice Alito, ‘There is no end point.’”

“I apologize if I gave that impression,” Park said in response. “We enthusiastically embrace the durational requirement, and we have tried to do everything possible to adopt race-neutral alternatives.”

—Staff writer Vivi E. Lu can be reached at Follow her on Twitter @vivielu_.

—Staff writer Leah J. Teichholtz can be reached at Follow her on Twitter @LeahTeichholtz.

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