The Supreme Court is poised to decide the fate of race-conscious admissions policies, perhaps as soon as Thursday morning. Unless you’ve been stuck in a trustees meeting for the last decade, you know that most everyone expects Students for Fair Admissions to prevail. The group, known as SFFA, which sued Harvard University and the University of North Carolina at Chapel Hill nine years ago, seeks to eliminate the use of race in admissions nationwide. And the court’s 6-3 conservative majority includes justices who have essentially sneered at the practice.
While it’s easy to view Supreme Court decisions in terms of wins and losses, the conclusion here could include nuances that complicate, or even temper, the plaintiffs’ anticipated victory. Speaking at a recent enrollment conference, Art Coleman, a managing partner and co-founder of EducationCounsel LLC, described a handful of potential outcomes. “I care more, from a field perspective, about how a party wins or loses here almost than I do about who wins or loses,” Coleman said. “SFFA could prevail, but they could prevail on such narrow, idiosyncratic grounds that the implications for other institutions may not be that dramatic. Or they could prevail with, as I have termed it, Armageddon … where the court literally wipes out all past authority and says, under no set of circumstances can you consider race in admissions.” So, the particulars of an SFFA win will determine just how big a defeat supporters of race-conscious admissions will have to stomach.
On the cusp of the Supreme Court’s decision, The Chronicle invites you to revisit Halloween 2022. During oral arguments in the Harvard and UNC cases that day, the nine justices and lawyers for all parties spent five grueling hours discussing the Constitution, holistic admissions practices, and the meaning of checking a box to indicate one’s race. What the justices said on the last day in October might or might not have telegraphed the thrust of the majority’s forthcoming opinions. But several exchanges illuminated some crucial fault lines in the age-old debate over race-conscious admissions.
Let’s take a last look back at some key questions that might shape the Supreme Court’s decision.
Is the Constitution meant to be colorblind in all ways, no matter what?
Yes, SFFA’s lawyers told the Supreme Court. They argued that the nation’s most sacred document requires colorblindness in all federal laws, a notion that derives from a particular reading of the 14th Amendment, which guarantees “the equal protection of the laws” to all U.S. citizens. During oral arguments in the UNC case, Patrick Strawbridge said “racial classifications are wrong,” and later added that, “just considering race and race alone is not consistent with the Constitution.” And Cameron T. Norris, representing the plaintiffs in the Harvard case, said this: “The framers of the 14th Amendment saw it as a ban on all racial classifications.”
But that’s flat-out wrong, said Elizabeth B. Prelogar, the U.S. solicitor general. She pushed back on the plaintiffs’ argument that the court’s decision in Brown v. Board of Education of Topeka compelled it to overturn Grutter v. Bollinger, the 2003 decision that upheld the limited consideration of race as one of many factors in admissions. “There is a world of difference between the situation the court confronted in Brown, the ‘separate but equal’ doctrine that was designed to exclude African Americans based on notions of racial inferiority and subjugate them … a world of difference between that and the university policies at issue in this case, which are not intended to exclude anyone on the basis of race or even to benefit particular racial groups … but to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment.”
SFFA, Prelogar said, lacked evidence to support “this colorblind interpretation of the Constitution that would make all racial classifications automatically unconstitutional.” And according to this incisive analysis from Vox, the colorblind-or-bust idea is flawed: “The Congress that wrote the 14th Amendment … rejected the ‘color-blind’ theory, and instead wrote a landmark civil rights statute that explicitly requires the government to consider race when deciding whether a non-white individual’s rights were fully respected.”
Is it OK to invite applicants to check a box indicating their race and ethnicity?
The act of checking a box came up again and again during oral arguments. “What we object to,” one of SFFA’s lawyers said, “is a consideration of race and race by itself.” And for hours several Justices repeatedly zeroed in on the question of whether it was legally problematic for colleges to ask applicants to note their race and ethnicity — and to consider that information in evaluations.
Chief Justice John G. Roberts asked one of SFFA’s lawyers a question that distinguished between applicants checking a box to disclose their race and ethnicity, and writing an essay about how their race had informed their experiences: “Would you have any objection, if you do not ask candidates for admission to check a box what their race is, but you are allowed to take into consideration what an applicant would say in an essay about having to confront discrimination growing up?”
The lawyer’s reply: “Absolutely not. … We really are, in this case, talking about the check box.”
Justice Samuel A. Alito Jr. joined in, asking a lawyer for UNC, “Why do you give a student the opportunity to say this one thing about me, I’m Hispanic, I’m African American, I’m Asian? What does that in itself tell you?” And Justice Alito also asked a lawyer for SFFA to consider the hypothetical case of an African immigrant who moved to an predominantly white part of North Carolina. Would it be permissible to consider the student’s essay about dealing with “huge cultural differences”?
Probably, the lawyer said, “because the preference in that case is not being based upon the race but upon the cultural experiences or the ability to adapt or the fact of encountering a new language in a new environment.” And that prompted Justice Elena Kagan to interject with one of the most memorable lines of the day: “The race is part of the culture and the culture is part of the race, isn’t it? I mean, that’s slicing the baloney awfully thin.”
Her comment drew laughs. It also underscored an apparent inconsistency in the plaintiffs’ argument against race-conscious admissions: They’re seeking to undo Grutter, which affirmed that colleges could consider an applicant’s race as one factor among many within the context of their entire application. And yet during oral arguments, SFFA’s lawyers offered no real objections to specific examples of the holistic considerations of race that Grutter allows. This amicus brief in support of Harvard and UNC distills the situation succinctly: “Either admissions officers can consider an applicant’s story, inclusive of their experiences and perspectives that may be directly associated with an applicant’s race, or they cannot.”
Achieving diversity and diverse student populations in universities has been difficult. What if it continues to be difficult in another 25 years?
Did the Grutter decision really have a 25-year expiration date?
Writing for the Court in Grutter, Justice Sandra Day O’Connor offered a hopeful rendering of the future: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in the benefits of student diversity] approved today.” But does that mean that the court’s decision should … expire by 2028?
SFFA’s lawyers said, in so many words, that time’s up for colleges that consider race. And the court’s conservative justices seemed to agree. Justice Amy Coney Barrett pressed Ryan Y. Park, a lawyer for UNC, to say when it would stop using race in admissions: “Achieving diversity and diverse student populations in universities has been difficult. What if it continues to be difficult in another 25 years? … What are you saying when you’re up here in 2040? Are you still defending it like this is just indefinite, it’s going to keep going on?”
Park said, “it’s a dial, not a switch,” and that he expected that the university would be able to “dial it down to zero.” In response to another justice’s question about phasing out race, he said: “We don’t read the 25-year as some sort of strict expiration.”
Prelogar fielded several questions about the Grutter decision’s supposed expiration date. “Diversity in higher education,” she said, “is absolutely a compelling interest and it will remain so. That is constant. That’s not going to change. But our society is going to change in ways that enable more and more universities and colleges to try to achieve the benefits of educational diversity without having to take race explicitly into account.”
“Grutter gave us a number,” Roberts said. “Are you going to give us a number?”
“I can’t give you a number,” Prelogar said. “But I can say that I think that our society has made some progress toward that goal.”
Roberts pushed her for an answer.
“It would be incorrect as a matter of constitutional principle,” Prelogar said, “to … understand Grutter to have set a firm expiration date on the nature of the compelling interest here.”
The conservative justices’ apparent impatience with such answers was palpable.
Do the educational benefits of diversity justify the limited use of race in admissions?
Grutter affirmed that the only legally sound rationale for considering race in admissions is to achieve the educational benefits of diversity that, its supporters often say, “flow” when people from different backgrounds are mixed together.
Yet several justices seemed skeptical of this idea, in part because those benefits can prove difficult to measure. Justice Clarence Thomas expressed confusion about the very meaning of the word “diversity.” When pressing a lawyer for UNC, he said, “you still haven’t given me the educational benefits … 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; they send them there to learn physics or chemistry or whatever they’re studying.”
David G. Hinojosa, a lawyer representing student respondents in the UNC case, rattled off numerous educational benefits of diversity. Fostering innovation. Reducing stereotypes. Preparing young people to live and work in a diverse society.
But do those benefits justify the use of race in admissions? No, argued Strawbridge, the lawyer for SFFA. The problem, he said, is that Grutter suggests that “this is somehow costless, that it’s one factor among many and we can’t identify, you know, exactly how many points race is getting. … It’s always a plus factor and never a negative. But this is a zero-sum game.”
Justice Alito picked up that thread: “What is your response to the simple argument that college admissions is a zero-sum game? And if you give a plus to a person who falls within the category of underrepresented minority but not to somebody else, you’re disadvantaging the latter student?”
Hinojosa disagreed with that characterization. Even when race is a plus factor for a given applicant, he said, a college is “looking at the whole applicant … their whole application and their résumé.”
This exchange revealed a fundamental tension between those who see selective admissions as a simple equation in which one applicant’s plus is another applicant’s minus — and those who see its as a complex, individualized evaluation of numerous factors all at once.
We’re entertaining a rule in which some people can say the things they want about who they are and have that valued in the system, but other people are not going to be able to.
What would happen if colleges were barred from considering some aspects of one student’s application but not another’s?
Justice Ketanji Brown Jackson argued that barring race-conscious admissions programs could pose a different kind of legal problem for the court down the line. In response to an SFFAs lawyer, she said: “What I’m worried about is that the rule that you’re advocating, that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants but they can’t value race. … That seems to me to have the potential of causing more of an equal-protection problem than it’s actually solving.”
Justice Jackson proposed a hypothetical involving two applicants to UNC. The first writes an essay conveying their hope of becoming a fifth-generation graduate of the university; the second explains that they’re descended from enslaved people who never had a chance to attend UNC. Both applicants wish to honor their families’ legacies by enrolling at the university.
“The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him,” Justice Jackson said, “while the second one wouldn’t be able to because his story is in many ways bound up with his race and with the race of his ancestors. … We’re entertaining a rule in which some people can say the things they want about who they are and have that valued in the system, but other people are not going to be able to because they won’t be able to reveal that they are Latino or African American or whatever. And I’m worried that that creates an inequity in the system with respect to being able to express your identity and, importantly, have it valued by the university when it is considering the goal of bringing in different people. Is that a crazy worry?”
