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WASHINGTON — Affirmative action in American higher education may be on its last leg.
The Supreme Court’s conservative majority on Monday appeared open to banning the consideration of race in college admissions during oral arguments in a pair of high-stakes anti-affirmative action lawsuits against Harvard and the University of North Carolina.
In marathon back-to-back hearings, members of the court’s conservative wing vigorously interrogated lawyers from Harvard and UNC, who argued that schools should be able to consider race as a factor in admissions.
Justices questioned the educational value of racial diversity, which lawyers representing the two schools said justifies race-based affirmative action.
“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone,” Justice Clarence Thomas told North Carolina Solicitor General Ryan Y. Park, who argued on behalf of UNC. “Tell me what the educational benefits are.”
Park said diversity leads to better performance at work and school, citing studies that found diverse stock trading groups performed better than homogeneous ones.
“I guess I don’t put much stock in that,” Thomas replied, “because I’ve heard similar arguments in favor of segregation, too.”
The conservative justices’ skepticism comes as the court has become increasingly willing to revisit long-standing precedents.
Lawyers representing Harvard and UNC rejected allegations that the schools discriminate against Asian American applicants and said academia, industry, and government all benefit from increased racial diversity.
“A university student body comprising a multiplicity of backgrounds, experiences and interests vitally benefits our nation,” said Seth P. Waxman ’73, a former U.S. solicitor general who represented Harvard on Monday. “Stereotypes are broken down, prejudice is reduced, and critical thinking and problem-solving skills are improved.”
Lawyers for Students for Fair Admissions, the anti-affirmative action group that first filed lawsuits against Harvard and UNC in 2014, asked justices to overturn the court’s 2003 Grutter v. Bollinger ruling, which upheld the right to consider race as a factor in admissions.
“This court should admit that it was wrong about Harvard, wrong about Grutter, and wrong about letting the poison of racial classifications seep back into education,” said Cameron T. Norris, who argued on behalf of SFFA in the Harvard case.
Affirmative action has narrowly survived several Supreme Court challenges, but the current 6-3 conservative majority appears more willing to roll back the practice. It remains unclear how far a potential ruling in favor of SFFA might reach. Chief Justice John G. Roberts Jr. ’76, considered a more moderate vote, has ruled against race-conscious admissions in the past, but he has been less eager to overturn precedent than some of his other Republican-appointed colleagues.
On Monday, Roberts criticized arguments laid out by Harvard and UNC. Asked by Roberts whether race could ever be a deciding factor in admissions, Waxman said it could.
“Race, for some highly qualified applicants, can be the determinant factor — just as being an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip,” he said.
“We did not fight a civil war about oboe players — we did fight a civil war to eliminate racial discrimination, and that’s why it’s a matter of considerable concern,” Roberts shot back.
SFFA, founded by conservative activist Edward J. Blum, alleges that both schools discriminate against Asian American applicants by considering race in their admissions processes. Waxman faced sharp questions from Justice Samuel A. Alito Jr., who asked why Asian Americans score lower than other racial groups on Harvard’s “personal rating” metric, which evaluates applicants’ personality traits.
“They rank below whites, they rank way below Hispanics, and really way below African Americans,” Alito said. “What is the explanation for that?”
In his response, Waxman cited a lower court’s findings, saying that there is “no evidence of discrimination in admissions outcomes.”
Waxman said personal ratings are used by admissions officers “just as a matter of triage” and the score “fades into the background” later in the admissions process.
“It is not considered in any way once the subcommittees and committees meet,” Waxman said. “It is not the basis of admissions decisions.”
The court’s liberal justices challenged SFFA’s lawyers, offering a defense of race-conscious admissions.
“When you give your race, you’re not getting any special points,” said Justice Ketanji Brown Jackson ’92. “It's being treated just on par with other factors in the system. No one’s automatically getting in because race is being used.”
Justice Elena Kagan jousted with Norris, the SFFA lawyer, over whether race-conscious admissions would be acceptable if race-neutral alternatives failed to achieve diversity.
“I don’t think there’s any level that allows explicit racial classifications,” Norris said. “But I’m going to fight the hypothetical one more time if you’d let me.”
“I don’t think I will,” Kagan shot back, to audible laughter.
Several top Harvard administrators were present in the packed courtroom on Monday. Former University President Drew G. Faust, Harvard College Dean Rakesh Khurana, and former Harvard Corporation Senior Fellow William F. Lee ’72 sat side-by-side during oral arguments.
In an email to Harvard College students Monday, Khurana said “diverse learning communities are essential to the College’s mission of educating citizens and citizen leaders.”
Blum, the SFFA president, wrote in a statement that “elite universities like Harvard and UNC are diminishing, rather than growing, the power and profundity of American individualism.”
“It is a moral failure that our most competitive universities place high schoolers on racial registers and tell the world that their skin color affects what they think and know, and what they like and do not like,” he wrote.
The Supreme Court is not expected to issue its ruling on the case until the spring or early summer.
—Staff writer Rahem D. Hamid can be reached at email@example.com.
—Staff writer Nia L. Orakwue can be reached at firstname.lastname@example.org.
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