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High court signals time’s up for affirmative action

The justices are primed to compound criticism of their apparent apathy to case law, this time by overturning decades of precedent around higher education.

WASHINGTON (CN) — Probing affirmative action policies at Harvard and the University of North Carolina, the conservative majority looked Monday toward an end to the use of race in college admissions. 

The justices focused on each school separately in a marathon oral argument session lasting almost five hours. While this sets the court up for two rulings on the issue, the majority of justices appeared ready to throw out the policies. 

“College admissions are a zero-sum game,” Justice Samuel Alito said. “If you give a plus to a person who falls within the category of an underrepresented minority but not to somebody else, you’re disadvantaging the latter student.” 

The universities emphasize the limits of how they treat race in admissions, insisting there are no racial quotas, but some of the justices had trouble understanding how that would be possible. 

“I’m struggling still to understand how you distinguish between what this court has said is impermissible, a quota, with what you argue should be permissible going forward, which is diversity,” Justice Neil Gorsuch said. “How can you do diversity without taking account of numbers?” 

The extent to which the justices could curb the use of race in admissions is still unknown. Through a series of hypotheticals, some of the justices seemed open to allowing students to share experiences involving race in personal essays. It wasn’t clear, however, where the lines would be drawn on what was or wasn’t permissible. 

“Your position will put a lot of pressure going forward … on what qualifies as race-neutral in the first place,” Justice Brett Kavanaugh said. 

Seeming to side with the universities, the outnumbered liberal justices did not see how race could be separated from an applicant's identity. Jackson asked if the court’s ruling in these cases could result in certain applicants having to mask their identity while others get to highlight it. 

“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,” the Biden appointee said. “I’m worried that that creates an inequity in the system with respect to being able to express your identity.” 

Justice Elena Kagan said the group Students for Fair Admissions, which brought both challenges, ignored why race was considered in the first place: to make institutions more diverse. 

“Your brief — and this is very explicit in your brief — is, like, it just doesn’t matter if our institutions look like America,” the Obama appointee said. 

The two challenges are part of a decadeslong crusade by conservative activist Edward Blum — who was present in the courtroom on Monday —  to affirmative action policies. Blum is the head of Students for Fair Admissions, which says Harvard and UNC discriminate against Asian and white students through their plans to expand diversity. 

The group is calling on one of the court’s most well-known and best-regarded rulings — Brown v. Board of Education — to ask the conservative majority to strike down the use of race in college admissions. Brown, the group argues, upholds the promise of the 14th Amendment by rejecting the use of race in education. 

It was over 44 years ago that the Supreme Court first allowed the use of race in college admissions in Regents of the University of California v. Bakke. Two decades later in 2003, the court was asked to revisit the issue in Grutter v. Bollinger. Ruling in favor of policies at the University of Michigan Law School, the court would uphold affirmative action and continue to do so when the court heard two additional challenges in the decades to come. The court agreed to hear yet another challenge only six years after it last affirmed affirmative action. 

Students for Fair Admissions says Grutter must be overturned in order to uphold the promises of Brown

“Because Brown is our law, Grutter cannot be,” William Consovoy, an attorney with Consovoy McCarthy representing the group, wrote in their brief. “Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this Court should overrule Grutter’s.” 

According to the group, the use of racial balancing and rejection of race-neutral alternatives at Havard violates the Equal Protection Clause and therefore Title VI of the Civil Rights Act. UNC also violates the Constitution and Title VI, the group claims, for rejecting race-neutral alternatives. 

Harvard and UNC say their reliance on race in admissions involves a holistic review of applicants based on many factors. Using race allows the universities to create more diversity — not less — by promoting a diverse learning environment, according to the colleges. 

Students for Fair Admissions sued both universities in 2014. The group claims Harvard’s policies resulted in the discrimination of Asian American students. When the case went to trial four years after the suit was filed, Harvard’s policies were probed but ultimately found to comply with the court’s precedents. 

Another court found UNC’s policies also complied with precedent. The case never made it to the appeal stage, as the high court agreed to bypass the circuit court and hear both universities’ cases together. When Justice Ketanji Brown Jackson — who has longstanding ties to Harvard — joined the court, the justices agreed to separate the cases to allow for her participation. 

The Biden administration weighed in on both cases in favor of the universities. U.S. Solicitor General Elizabeth Prelogar told the justices that the government relies on universities to produce a diverse workforce. She said this is particularly important to the military. 

“It is a critical national security imperative to attain diversity within officer corps,” Prelogar said. “At present, it’s not possible to achieve that diversity without race-conscious admissions, including at the nation’s service academies.” 

Prelogar also countered arguments by Students for Fair Admissions by appealing to the court’s focus on originalism. 

“What’s so notable that the court is focused on history here is that petitioner has come forward with essentially no history to support this colorblind interpretation of the Constitution that would make all racial classifications automatically unconstitutional,” Prelogar said. “There’s nothing in history to support that.” 

These cases present the court with another opportunity to upend decades of precedent, and the conservative majority appeared ready to take up that mantle.

Grutter very clearly says this is so dangerous,” Justice Amy Coney Barrett, a Trump appointee, said of the use of race in admissions. “Grutter doesn’t say this is great, we embrace this. Grutter says this is dangerous, and it has to have an endpoint.” 

When Grutter was decided, Justice Sandra Day O’Connor opined that affirmative action might not be necessary in 25 years. That would put an end to the policy in 2028. Many of the justices appeared interested in a possible end date for using race in admissions. 

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