Justices hear arguments over affirmative action in Harvard, UNC Supreme Court cases

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The Supreme Court on Monday is hearing arguments in two potential landmark cases over how colleges and universities look at race in making admissions decisions.

For decades, schools have been able to use affirmative action to give preferences to applicants from underrepresented minorities using the argument that it promotes the interest of having diversity on campus. Students for Fair Admissions, however, claim that policies at Harvard University and University of North Carolina discriminate against applicants who are not from such minority groups on the basis of their race. In particular, the group claims that Asian-Americans suffer from the practices of both schools and that White applicants are also harmed by UNC’s.

At issue in both cases is whether the Court should overrule its precedent in 2003’s Grutter v. Bollinger, which said that colleges and universities can consider race in order to have a diverse student body. The Court decided to hear the cases separately, as UNC is a public school and Harvard is private, so legal issues are not totally identical. In the UNC case, which is being argued first, the Court will also consider whether the school acted properly in rejecting a race-neutral alternative. In the Harvard case, they will look at whether the school violated Title VI of the Civil Rights Act by penalizing Asian-Americans with their policies.

“Racial classifications are wrong. That principle was enshrined in our law, at great cost, following the Civil War,” attorney Patrick Strawbridge said at the beginning of his argument against UNC on behalf of the student group.

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Justice Clarence Thomas raised UNC’s argument that failing to consider race means failing to consider the whole person. He asked how a school might do this without race. Strawbridge responded that a school can look at an applicant’s life experiences and argued that a person’s race does not necessarily dictate their point of view.

“The assumption that race necessarily informs something about anyone’s qualifications is antithetical to this Court’s precedence and to our Constitution,” he said.

Justice Ketanji Brown Jackson asked Strawbridge about the facts about whether UNC was basing its decisions solely on race and whether anyone was truly suffering harm as a result. He responded that UNC’s expert witness said that 1.2% of admissions decisions were influenced by race and that with 40,000 applicants a year, that would be hundreds or thousands who are impacted.

Jackson noted that UNC does not award points to applicants based on race and that nobody is automatically being granted admission because of their race. She challenged the premise that any applicants were really being harmed.

Strawbridge responded by saying that the school gives preferential treatment to Black, Hispanic, and Native American applicants. As a result, he argued, people outside those groups are therefore placed at a disadvantage.

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Justices Amy Coney Barrett and Sonia Sotomayor asked if a student wrote in their application that they have overcome adversity due to their race if considering that would be a problem. Strawbridge said that would be acceptable because it is not looking at race in a box but rather the applicant’s life experience, which can say “something about the character and the experience of the applicant other than their skin color.”

Jackson countered that from what she has seen, race “is never standing alone” and is always used in the context of the whole application.

“It never actually comes into play,” she said.

Justice Elena Kagan, meanwhile, asked Strawbridge if ignoring race meant that admissions of minorities were to “fall through the floor.” He argued that this would not happen, as experience would still be a permitted factor, but Kagan pressed him by saying that the “logic suggests that it doesn’t matter.”

Discussing the Grutter case, Strawbridge argued that the problem is that it claims that giving preference due to the interest in diversity is only a good thing but that this is “a zero-sum game,” so as a result, there will be others who are harmed.

Justice Sotomayor addressed the argument that UNC improperly ignored race-neutral alternatives, pointing out that in simulations presented by the student group. None of the situations achieved results as good for every ethnic group as UNC currently has.

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Legal experts have speculated that the Supreme Court will overturn Grutter. That case’s majority opinion by Justice Sandra Day O’Connor even warned that it could be rendered obsolete over time. O’Connor wrote that she “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”