The future of affirmative action in higher education is on the table as the Supreme Court wades into the admissions programs at the nation's oldest public and private universities.
Justices heard arguments on Monday in challenges to policies at the University of North Carolina and Harvard that consider race among many factors in evaluating applications for admission.
Following the overturning of the nearly 50-year precedent of Roe v. Wade in June, the cases offer another test of whether the court now dominated by conservatives will move the law to the right on another of the nation's most contentious cultural issues.
The Supreme Court has twice upheld race-conscious college admissions programs in the past 19 years, including just six years ago. But that was before three appointees of President Donald Trump joined, as well as Justice Ketanji Brown Jackson, the court's first Black woman.
Lower courts upheld the programs at both UNC and Harvard, rejecting claims that the schools discriminated against white and Asian-American applicants.
The cases are brought by conservative activist Edward Blum, who also was behind an earlier affirmative action challenge against the University of Texas as well as the case that led the court in 2013 to end the use of a key provision of the landmark Voting Rights Act.
Blum formed Students for Fair Admissions, which filed the lawsuits against both schools in 2014. The group argues that the Constitution forbids the use of race in college admissions and calls for overturning earlier Supreme Court decisions that said otherwise.
Colleges and universities can use other, race-neutral ways to assemble a diverse student body, including by focusing on socioeconomic status and eliminating the preference for children of alumni, Students for Fair Admissions argues.
The schools contend that they use race in a limited way, but that eliminating it as a factor altogether would make it much harder to achieve a student body that looks like America.
The group is seeking to overturn the 2003 ruling in Grutter v. Bollinger, which allowed colleges and universities to consider race in admissions in order to create diversity on campuses across the country.
Attorney Patrick Strawbridge, representing SFA, opened his arguments Monday morning by saying that "racial classifications are wrong" and that they "don’t have a place" in education.
But the court's liberal justices challenged Strawbridge's assessment, pressing him on the actual harm that race-conscious admissions programs cause.
"No one is automatically getting in because race is being used," Justice Jackson said. "Why does having race as a factor harm your members?"
Jackson expressed concern that having a ban on race-conscious admissions could raise the potential for inequality, and possibly violate the Equal Protection Clause of the Fourteenth Amendment by telling universities they can consider other factors for admission, but not race.
"Is there a risk of treating people differently by not allowing some applicants to talk about that aspect of their identity?" she asked. "I'm worried it creates an inequity in the system."
Jackson also posed to Strawbridge a hypothetical situation about two applicants to UNC; both had families with deep ties to North Carolina – "for generations — since before the Civil War," she said – but one applicant said they would be a fifth-generation graduate from the instutition, while the other noted their family members were enslaved and would not have been able to attend the school.
“As I understand your 'no race-conscious admissions rule,' these two applicants would have a dramatically different opportunity to tell their family stories and to have them count,” she said. “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, 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."
She asked Strawbridge why such a hypothetical would not violate the equal protection clause, calling it "a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, just like the other person has their personal background, family story honored."
The attorney replied that the institution could honor "those who have overcome slavery or recognizing its past contribution to racial segregation," but said he did not think it was "necessarily" grounds to "make decisions about admission of students who are born in 2003."
The high court's conservative justices pressed North Carolina's Solicitor General Ryan Park, arguing the case for UNC, about time-limits for race-based admission practices. In the majority opinion for the Grutter v. Bollinger decision, Justice Sandra Day O'Connor wrote that "race-conscious admissions policies must be limited in time," and predicted that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
"What is your goal and how would a court be able to determine when your goal has been reached?" asked Justice Samuel Alito.
"Our goal is to achieve the educational benefits of diversity," Park replied, adding: "I understand that's a qualitative metric."
Justice Amy Coney Barrett pressed further: "When does it end? When is your sunset? When will you know?"
“All governmental use of race must have a logical end point, reasonable durational limits, sunset provisions,” she said, citing the Grutter ruling. “When is your sunset?”
"We enthusiastically embrace an end-point requirement," Park said.
"I don’t know how you can say the program will ever end," Chief Justice John Roberts said. "You’re always going to have to look at race because you say race matters."
Justice Clarence Thomas pushed Park for a definition of diversity: "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."
"We value diversity of all different kinds and all the ways people differ in our society," Park replied, before citing benefits of diverse practices: "Racially diverse and diversity of all kinds leads to a deeper and richer learning environment."
Chief Justice Roberts and Justice Brett Kavanaugh also dug into what "race-neutral" alternatives in admissions would look like. Roberts asked if students could raise race in admissions essays if racial "check boxes" were done away with, while Kavanaugh pressed for a definition of a "race-neutral" standard.
"What qualifies as 'race-neutral' in the first place?" Kavanaugh asked. "What if a school says a plus factor for descendants of slaves? Is that race neutral or not?"
"We have to think forward about what happens if you prevail in this case," Roberts directed at Strawbridge. Roberts later posed a hypothetical about students who are children immigrants to this country.
Strawbridge said that for the descendants of slaves, if that was the only basis, "then that may be a pure proxy for race" and thus impermissible; the children of immigrants, Strawbridge posited, "might be permissible in the general sense."
The Biden administration is urging the court to preserve race-conscious admissions. On Monday, Solicitor General Elizabeth Prelogar called the practice "necessary to have our leadership broadly reflect the diversity of our country," citing benefits like "challenging stereotypes and assumptions," "reducing a sense of racial isolation and alienation" and "encouraging greater participation by minority students in the classroom environment."
Prelogar also called race-conscious admissions a "national security imperative," citing the importance of service academies using such practices key to building a diverse corps of officers.
"At present it's not possible to achieve that without race-conscious admissions, including at the nation's service academies," Prelogar said.
The Trump administration had taken the opposite position in earlier stages of the cases.
The case about Harvard University's race-conscious admissions process centers on a challenge from Asian American students, who say their race counts against them.
Cameron Norris, the lawyer arguing on behalf of Students for Fair Admissions, argued that using race as a "plus or a minus" in admissions amounts to racism.
Justice Elena Kagan pushed back on the idea that someone's race alone determines admission, citing earlier findings in the case that show Harvard uses a "holistic" view of an application, with race as one of the factors. She followed up on an earlier point about students writing about their race, culture or overcoming discrimination in their personal essay, which Norris agreed was acceptable.
But he also argued that simply identifying one's race via "checkbox" weighs much more heavily: "Harvard can award a racial preference based on the checkbox alone, whether or not an applicant writes about it or otherwise indicates that it's important to them."
The suit from Asian American students also alleges that Harvard’s admissions officers use a subjective “personal rating” to discriminate against Asian Americans who apply to the school. Using six years of admissions data, the group found that Asian American applicants were given the highest scores in an academic category but received the lowest scores on the personal rating.
The lawsuit also alleged that Harvard works to keep a consistent racial breakdown among new students, which the organization says amounts to illegal “racial balancing.”
Justice Samuel Alito brought up the lower "personal rating" for Asian American students, pressing Harvard's lawyer, Seth Waxman: "What is the explanation for that?
Waxman did not appear to have a good explanation except that the personal rating, which is meant to represent qualities such as kindness, empathy and integrity, is factored through what guidance counselors, teachers and interviewers write about a student. Therefore, he said, it is hard to measure definitively.
Waxman said the personal rating was solely meant to "triage" admissions when there are a large number of applicants, not to deny admission.
"The Court of Appeals also concluded that there was no evidence of discrimination in admissions outcomes against Asian Americans," he added.
On the question of whether race should only be taken into account through something like the personal essay, Waxman said Harvard is trying to admit a "genuinely diverse class" of various backgrounds and viewpoints.
Harvard does not want a "class that is racially diverse only for people for whom their racial identity and their racial experiences is of such compelling importance that they write about it."
Toward the end of the arguments, some justices asked questions about the future "end point" of race-conscious admissions.
Waxman said Harvard expects that in 25 years those preferences will no longer be necessary.
The U.S. Solicitor General Elizabeth Prelogar said it would not be flexible to hold schools to a 25-year timeline but that lower courts have found universities expect it to become less critical over time.
Prelogar gave a final defense of race-conscious admissions in the context of Brown v. Board of Education, which ended segregation, rejecting the argument that affirmative action is "racist."
She said there is a "world of difference" between the modern cases and a policy 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 issue in this case -- which were not intended to exclude anyone on the basis of race or even to benefit particular racial groups on the basis of race -- but rather are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment," she said.
Outside the courtroom, college students, activists and other demonstrators gathered in support of race-conscious college admission decisions.
One such protester told Spectrum News that they believe if the high court "overturned 40 years of precedent," they believe "it would make diversity on campus, the numbers of Black and brown students on these campuses, plummet."
"I think that if they overturn this case, and have less of an outreach to these black and brown communities," said Star Wingate-Bey, a University of North Carolina Chapel Hill graduate, "then it would affect the educational opportunity of all who go to school at [UNC], and all campuses across the country"
"We all benefit from diversity in the classroom, we benefit from open dialogue and from hearing from people with different perspectives," Wingate-Bey added. "I just think it would really, really harm the education that you can get at these public universities or any university that really benefit from diversity."
Another told Spectrum News that affirmative action is important because "we need to start to see a more diverse environment when it comes to higher education."
"With the social climate that we're in right now, a lot of [organizations], a lot of institutions, they're starting to incorporate diversity and inclusion aspects into their mission statements, but it kind of just feels forced," said Jaheim McRae, North Carolina A&T State University's class of 2025. "It kind of feels like they're forced to do that just to make them fit in just to make it seem like, you know, they're supporting the culture, they're supporting the people."
"But at the end of the day ... that's just not enough," McRae added. "You have to really put action behind your words. And that's why we're trying to force people ... to stand true to what they're saying and stand true to what they say that they believe in."
The crowd was largely in favor of keeping affirmative action intact, though a handful of protesters against the issue were present, according to The Washington Post.
UNC says its freshman class is about 65% white, 22% Asian American, 10% Black and 10% Hispanic. The numbers add to more than 100% because some students report belonging to more than one category, a school spokesman said.
White students are just over 40% of Harvard's freshman class, the school said. The class also is just under 28% Asian American, 14% Black and 12% Latino.
Nine states already prohibit any consideration of race in admissions to public colleges and universities: Arizona, California, Florida, Georgia, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.
In 2020, California voters easily rejected a ballot measure to bring back affirmative action.
Public opinion on the topic varies depending on how the question is asked. A Gallup Poll from 2021 found 62% of Americans in favor of affirmative action programs for racial minorities. But in a Pew Research Center survey in March, 74% of Americans, including majorities of Black and Latino respondents, said race and ethnicity should not factor into college admissions.
Jackson and Chief Justice Roberts received their undergraduate and law degrees from Harvard. Two other justices went to law school there.
But Jackson is sitting out the Harvard case because she was until recently a member of an advisory governing board.
A decision in the affirmative action cases is not expected before late spring.