WASHINGTON, DC – A divided and often skeptical Supreme Court heard two cases on October 31 that challenged race-conscious policies used in university admissions to gain a diverse student population.
Students for Fair Admissions, a group challenging those admissions policies, wanted the court to overturn its 2003 decision in Grutter v. Bollinger in which he said schools can consider race in the admissions process.
In 2016, a court rejected a challenge to a race-conscious admissions program at the University of Texas at Austin.
A student group challenged affirmative action admissions policies at the University of North Carolina and Harvard University.
The court decided to rule on the challenges separately because Judge Ketanji Brown Jackson recused herself from the Harvard case, having recently completed a six-year term on the university’s board of trustees.
Oral arguments lasted nearly three hours in the University of North Carolina case, which the court heard first, followed by another two hours of arguments in the Harvard case. Before arguments began, demonstrators lined the sidewalk outside the courthouse on a cloudy, chilly Halloween morning.
By the end of the first session of arguments, a majority of the justices seemed poised to rule against the use of affirmative action in admissions policies, and a second set of arguments further cemented that position.
Some judges expressed skepticism about how the policy would work.
“I’ve heard the word diversity many times and I have no idea what it means,” said Justice Clarence Thomas, adding, “It seems to mean everything to everyone.”
Justice Samuel Alito similarly asked what the term “underrepresented minority” meant, speculating that favoring one group of applicants puts others at a disadvantage in what he called a “zero-sum game.”
Other justices defended the policy and wondered what would have happened without it.
Justice Elena Kagan expressed concern that if schools did not use this factor in their admissions policies, there would be a “precipitous decline in minority admissions,” denying access to schools that are “pipelines to leadership in our society.”
Jackson, the first black woman to serve on the court, was unconvinced by the challengers’ claims that they were harmed by the university’s racially-conscious admissions policy.
“Nobody gets in automatically because race is used,” she told the Students for Fair Admissions attorney, adding, “Why does race as a factor hurt your members?”
As a group, Catholic colleges weighed both cases and urged the court to uphold affirmative action in admissions.
Fifty-six Catholic colleges and universities joined an amicus brief filed by Georgetown University, stressing that the right to consider racial diversity in admissions is essential to their academic and religious missions and is “inextricably intertwined” with their religious foundations.
The brief, joined by the University of Notre Dame, College of the Holy Cross, DePaul University and Villanova University, among others, argues that the right to reach a diverse student body is rooted in the First Amendment’s guarantees of free speech and exercise. of faith.
This is said to be especially true for Catholic higher education institutions, whose ability to exercise discretion in selecting students is critical to their religious missions.
Patricia McGuire, president of Trinity Washington University, tweeted on Oct. 31 that more Catholic colleges and universities should defend the policy.
“Catholic higher education must do much more to promote models of access, equity and justice on our campuses, and be advocates and activists for black students who are still marginalized in too many places,” she said.
Attorney General Elizabeth Prelogar, who represents the Biden administration in support of affirmative action policies in schools, said a “blanket ban” on the measures would have “profound consequences.”
Cameron Norris, an attorney for the student group, said the policies have had a negative impact and have caused discontent among many.
As the justices grappled with the policy in question, they often noted when lawyers would foresee an “end point” when race-conscious admissions would not be necessary.
Seth Waxman, a former general counsel representing Harvard University, acknowledged that there is no magic date when this will not be necessary, and noted that even with this policy there are still challenges.
As he said, “We still have work to do with the students when they come here.”