Supreme Court Seems Ready to Narrow Affirmative Action’s Role in College Admissions

November 1, 2022 by Dan McCue
Supreme Court Seems Ready to Narrow Affirmative Action’s Role in College Admissions
A crowd gathered outside the U.S. Supreme Court building on Monday, Oct. 31, 2022, as the justices prepared to hear a pair of cases questioning the role of affirmative action in college admissions. (Photo by Dan McCue)

WASHINGTON — For decades colleges and universities across the country have used affirmative action in their admissions programs to foster diversity on campus.

On Monday, however, the conservative supermajority on the high court signaled they are ready to sharply curtail its use in the admission process, the only question being how far they are actually willing to go.

During nearly five hours of oral argument, the conservative justices, led by Associate Justices Samuel Alito Jr. and Clarence Thomas, hammered away at how admissions programs at the University of North Carolina and Harvard University consider the race of applicants to achieve diversity in their respective student bodies.

“So what is your response to the simple argument that college admissions are a zero-sum game?” Alito asked David Hinojosa, an attorney for a group of students backing race-conscious admissions in the North Carolina case. 


“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?”

Thomas, who disavowed affirmative action after it played a role in his recruitment to College of the Holy Cross, in Worcester, Massachusetts, and admission to Yale Law School, asked Patrick Strawbridge, the attorney for the University of North Carolina, to respond to the students’ assertion that if you don’t consider race, you won’t be able to consider the whole person in the admissions process.

“This court has always said that racial classifications are necessarily invidious,” said Strawbridge, a former law clerk for Thomas. “Certainly, it is possible that … an applicant … could write something in which race provides a context for their experience. But just considering race and race alone is — is not consistent with the Constitution.”

“Then what do you include on the application?” Thomas asked.

“Well, you include their experiences. You include … where they grew up. You might include their — include their socioeconomic status. You include all sorts of things that actually lead to broader diversity of viewpoints,” Strawbridge said.

“The assumption that race necessarily informs something about anyone’s qualifications is antithetical to this court’s precedents and to our Constitution,” he added.

A lone demonstrator calling for an end to affirmative action in college admissions outside the U.S. Supreme Court building. (Photo by Dan McCue)

That left the court’s three liberal Associate Justices — Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, who recused herself from the Harvard case due to her recent membership on the school’s board of overseers — to play a kind of defense: giving voice to their continued support for affirmative action, while trying to bolster the presenting attorneys’ responses to their colleagues’ questions.

“Sometimes race does correlate to some experiences and not others. If you’re Black, you’re more likely to be in an under-resourced school,” said Sotomayor, an outspoken advocate of affirmative action, who credits it for admission to Princeton University and Yale Law School.

“You’re more likely to be taught by teachers who are not as qualified as others. You’re more likely to be viewed as … having less academic potential. 

“Do you … want an admissions officer to say, ‘I’m not going to look at the race of the child to see if they had all of those socioeconomic barriers present and, despite that, that they got very high high-school scores or maybe just a little bit lower SAT scores? Are you asking them to just shunt it aside?”

After Alito posited a hypothetical about whether race could be used as a criteria in the case of a student who emigrated from Africa and had to overcome cultural differences rather than “overt” discrimination, Strawbridge said that taking those experiences into account may be admissible in the admissions process “because the preference in that case is not being based upon the race [of the student] but upon the cultural experiences or the ability to adapt or the fact of encountering a new language in a new environment.”

“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,” Kagan said.

“Well, we could — we could say the same in the jury selection cases,” Strawbridge responded. “We could say the same in the child custody cases. 

“When you use race, you are telling applicants that their race matters, that it means something. That is inherently divisive. It gets us further away from a world where the government treats race as irrelevant,” he said.

While various Supreme Court rulings since 1978 have allowed race-conscious admissions — most recently in the 2016 case Fisher v. University of Texas, a challenge to a race-conscious admissions program at the University of Texas at Austin — nine states prohibit it.

California banned affirmative action in public universities through a voter-approved initiative in 1996, and voters overwhelmingly defeated a proposal to repeal the ban in 2020. 

The others that ban consideration of race in admissions: Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington state.

The court’s ruling in Fisher largely reaffirmed its earlier holding in Grutter v. Bollinger, a 2003 decision in which the justices endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. 

Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now, the use of racial preferences will no longer be necessary.”

Justice Brett Kavanaugh was among the conservative justices who noted O’Connor seemed to choose a hard and fast deadline for the end of the use of affirmative action, “a logical end point … Instead of leaving it vague.”

“The opinion didn’t say ‘until you reach a point where you’re satisfied that diversity has been achieved’ … it said 25 years,” Kavanaugh said. “I want to hear how you address that part of the Grutter precedent … would [you] extend it far beyond 25 years … perhaps indefinitely?”

Supporters of the use of affirmative action in college admissions on the sidewalk outside the Supreme Court building. (photo by Dan McCue)

“I think every institution in every state will differ,” said North Carolina Solicitor General Ryan Park. “I mean, we have states coming to the court and saying we have reached our diversity — educational benefits of diversity goals.”

Sotomayor insisted the “25 years” mentioned in O’Connor’s opinion was not a set deadline.


She went on to note that in the nine states that have deployed “race neutral” admission standards, the admission of White students has either remained the same or actually increased.

“And clearly, in some institutions, the numbers of underrepresented groups have fallen dramatically, correct?” she said. 

Park agreed. As far as the University of North Carolina is concerned, he said, the university has established “quite an extensive infrastructure … to continually monitor our progress on this score.”

“This is something we are continually pursuing … to try to reach a day where we can find a viable race-neutral alternative,” Park said.

While both cases before the justices on Monday dealt with affirmative action, they raised different legal issues.

As a public university, the University of North Carolina is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. 

Harvard, a private institution, is subject only to the requirements of the statute.

In addition, in the North Carolina case, the plaintiffs have claimed the university discriminated against White and Asian applicants by giving preference to Black, Hispanic and Native American ones. 

The university responded that its admissions policies fostered educational diversity and were lawful under long-standing Supreme Court precedents.

The lawsuit filed against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge personal traits like integrity, courage, kindness and empathy, and by effectively creating a ceiling for them in admissions.

Alito noted Asian American student applicants tend to get the lowest personal scores of any other group.

He asked Harvard’s attorney, Seth Waxman, “What accounts for that?”

“It has to be one of two things,” Alito added. “It has to be that they really do lack integrity, courage, kindness and empathy [compared] to students of other races, or there has to be something wrong with this personal score?”

Waxman denied Harvard discriminated against Asian American applicants, but was hard pressed to directly answer Alito’s question. 

Spectators and media mingled outside the U.S. Supreme Court building on Monday, Oct. 31, 2022 as the justices prepared to hear a pair of cases questioning the role of affirmative action in college admissions. (Photo by Dan McCue)

Later, he tried to explain that the so-called “personal rating” plays no meaningful part in the admissions process.

“It makes no difference whatsoever?” Alito said.

“It’s not that it makes no difference whatsoever … it just doesn’t make a statistical difference in admissions outcomes.”

“Then why do you do it?” Alito said.

“We said … I mean …” Waxman began.

“If it doesn’t matter, why do you do it?” Alito asked again.

“We do it as a matter of triage,” Waxman said. “Right now, Harvard is getting — last  year got 61,000 applications for 1,600 slots. And it is an entirely rational way of figuring out how you’re going to allocate your attention to ask an admissions officer, as the file is being developed, just go through in a very rough way and rate a particular application based on what you can see on these four metrics.

“The fact that Asian Americans got a marginally, on average, a marginally lower personal rating score is no more evidence of discrimination against them than the fact that they got a marginally higher rating than any data can show on academics and extracurriculars. It doesn’t mean that they’re either smarter or people think they’re smarter,” he said.

Both cases were brought by Students for Fair Admissions, a group founded by Edward Blum, a legal activist who has organized lawsuits across the country challenging race-conscious admissions policies and voting rights laws.

The plaintiffs contend that both universities have tipped the admissions scale dramatically in favor of Black and Hispanic applicants to the detriment of White and Asian American applicants.

They also contend both schools have historically ignored “race-neutral” alternatives that might preserve student diversity. 

A ruling in their favor would represent a fundamental shift in civil rights law when it comes to higher education, and advocates for affirmative action say it could, in its own way, represent as profound a change in this arena as the court’s ruling last session in Dobbs v. Jackson Women’s Health Organization, in which the court held the Constitution does not confer a right to abortion.


A ruling in the two cases is expected in late June.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.

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