Supreme Court Justices Signal Willingness To End Affirmative Action

Topline

The Supreme Court appears poised to outlaw affirmative action policies that take race into account in university admissions, as the court’s conservative justices signaled during oral arguments Monday that they’re open to ending the practice in favor of “race-neutral” admissions—even as the court’s liberal justices asserted its importance.

The University of North Carolina campus in Chapel Hill, North Carolina.

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Key Facts

Justices heard arguments Monday from activist group Students for Fair Admissions arguing that affirmative action policies violate the 14th Amendment’s equal protection clause, with two cases centered on the policies at the University of North Carolina and Harvard University.

Conservative justices including Amy Coney Barrett and Chief Justice John Roberts suggested that applicants could make up for not having their race directly taken into account by writing essays showing how they’ve overcome racial discrimination, or it being mentioned in a recommendation letter, versus just “ticking a box” showing their race.

Roberts suggested forcing schools to get rid of their affirmative action policies could be “an incentive for the university to truly pursue race neutral alternatives” that could still be effective in promoting diversity, and suggested it’s unfair if applicants to Harvard are automatically benefited because they’re Black, even if they’re from a higher socioeconomic status.

Justice Brett Kavanaugh pointed to the fact that some states have already gotten rid of affirmative action and can still “produce significant numbers of minority students on campuses,” though he also questioned Students for Fair Admissions’ attorney by asking him what is actually meant by claims that race-neutral policies “have been effective in achieving diversity.”

Justice Neil Gorsuch questioned what the difference is between encouraging diversity and racial quotas in admissions, which the Supreme Court previously ruled in 1978 are not permissible, and asked Harvard’s attorney about amicus briefs claiming there’s an industry that helps students “be less Asian” in university applications because they believe there are unofficial quotas for Asian Americans (the attorney denied there are such quotas).

Justice Clarence Thomas pushed back when North Carolina Solicitor General Ryan Park argued diverse groups “perform at a higher level”—saying he “[doesn’t] put much stock in that” because he’s heard similar arguments about segregation—and Justice Samuel Alito questioned the value of checking a box on race in the first place.

Chief Critic

The court’s liberal justices pushed back heavily Monday against attorney Patrick Strawbridge, who argued on behalf of the challengers. “I thought part of what it means to be American … is that our institutions are representative of who we actually are, in all of our variety,” Justice Elena Kagan argued in favor of policies that would encourage diversity, acknowledging that top universities “are the pipelines to leadership in our society.” Justice Ketanji Brown Jackson, who is recusing from the Harvard case but participated in the UNC case, argued there isn’t sufficient evidence to show that students were admitted solely based on their race, or that the students represented by Students for Fair Admissions weren’t admitted solely because they were from more overrepresented racial groups. Not allowing minority applicants to express their race, while still having other factors taken into account, “seems to have the potential of causing more of an equal protection problem than it’s actually solving,” Jackson also argued.

Big Number

41.5%. That’s the approximate percentage of U.S. universities that take race into account when determining admissions, according to a study by the National Association for College Admissions Counseling that Harvard cited in a court brief, as well as 60% of more selective universities that accept 40% or fewer of their applicants. At least nine states—Arizona, California, Florida, Idaho, Michigan, Nebraska, Oklahoma and Washington—already have policies that don’t allow affirmative action in university admissions, according to the National Conference of State Legislatures.

What To Watch For

The Supreme Court likely won’t rule for a few months on the two affirmative action cases. If the justices do side with the challengers, it could have wide-reaching implications for schools across the country. Harvard has argued in court briefs that taking race out of its admissions process would reduce enrollment of Black students at the school from 14% to 6% of its student body, and Hispanic enrollment from 14% to 9%. The University of Michigan, which had to adopt race-neutral policies after a state ballot measure abolished affirmative action, said in a court brief that as a result, its Black population decreased by 44% between 2006 and 2021, even as Michigan’s population of college-aged African Americans increased, and the Massachusetts Institute of Technology argued getting rid of race in its admissions would result in the “denial of talented prospective scientists and engineers with exceptional promise.” That lack of diversity could have broader-reaching implications: MIT noted it would result in marginalized groups becoming further unrepresented in science and engineering fields, while Harvard noted it would also lead to a 14% drop in the number of students at the university studying humanities subjects. A coalition of smaller liberal arts colleges pointed to research arguing that exposure to diversity “improves learning experiences, problem-solving and critical-thinking skills, and interpersonal and leadership skills,” among other benefits.

Key Background

The Supreme Court agreed to take up the affirmative action cases in January after lower courts sided in both cases with the universities and found their admission policies do not violate federal equal rights protections. Affirmative action was first established through an executive order in 1965 that told employers to “take affirmative action to ensure that equal opportunity is provided in all aspects of their employment,” and the Supreme Court then upheld the policy in a 1978 ruling finding universities could consider race as part of its admission process. It then further affirmed the practice in rulings in 2003 and 2016, though the latter ruling was narrowly tailored to the specific policy at the University of Texas that was at issue. Critics of the policy argue affirmative action is unfairly discriminatory against white and Asian American applicants, who are more overrepresented in applicant pools as compared with Black and Hispanic students.

Tangent

Solicitor General Elizabeth Prelogar also argued on behalf of the Biden Administration that affirmative action should be upheld Monday. Prelogar argued that cutting off race-based admissions would negatively impact the federal government and the U.S. military by impacting the diversity of people who get admitted to service academies or to the military through ROTC programs at universities. The pipeline from ROTC programs and service academies is “critically important,” Prelogar argued, noting that the military promotes from within and people who get admitted through university programs now will affect “the closed universe of people who will be eligible for leadership in the military in 20, 30 years time.”