Monday’s oral arguments on behalf of affirmative action lasted an unusually long five hours. The Supreme Court would be right to be skeptical of Harvard and the University of North Carolina’s (UNC) use of race in their admissions processes. Lawyers representing Harvard and UNC were unable to answer many of the questions asked of them, demonstrating just how shaky the precedent underlying race-based admissions—Grutter v. Bollinger—has always been, and why the Court should overrule it.

In Grutter, the justices examined a challenge to the University of Michigan Law School’s admissions policy. Under this policy, applicants from certain racial groups were effectively guaranteed a higher chance of admission than applicants from other racial groups because the law school designated “underrepresented minority” status as a “plus” factor. The Court ultimately upheld the University of Michigan Law School’s race-conscious admissions policy in a 5–4 decision. Writing for the majority, Justice Sandra Day O’Connor stated that the law school had said its reason for considering an applicant’s race was to further its “compelling interest” in student body diversity—the only justification the Court has said a university can have for using race-based admissions—and that its use of race was “narrowly tailored,” meaning it was just one factor among many in the admissions process. Therefore, the affirmative action program at issue was constitutional.

The majority in Grutter, for the most part, uncritically accepted the University of Michigan’s claim that it had a compelling interest in a diverse student body, and that diversity would yield certain “educational benefits.” But the Court did not seriously inquire as to whether there had been, in fact, a showing to the contrary. Instead, the five justices who ruled in the law school’s favor did little more than citing a series of amicus briefs submitted by left-wing academics, corporations, and professional associations, which alleged that racial and ethnic diversity could lead to educational benefits like open-mindedness and lively classroom discussions.

On Monday, Harvard and UNC tried to get away with the same thing—but they faced a very different Court.

Consider the exchange between Justice Clarence Thomas and North Carolina solicitor general Ryan Park, representing UNC. “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” Thomas said. “I’d like you to give us a specific definition of diversity in the context of the University of North Carolina. And I’d also like you to give us a clear idea of exactly what the educational benefits of diversity at the University of North Carolina would be.” Taken aback by the justice’s pointed question, Park responded, “We define diversity in the way this Court has in this Court’s precedents, which means a broadly diverse set of criteria that extends to all different backgrounds and perspectives and not solely limited to race.” About the supposed educational benefits of diversity, he said, “I don’t think it’s actually disputed here that there are real and meaningful educational benefits that come with diversity of all kinds.”

Thomas was not satisfied with Park’s response, which sounded like it was crafted to circumvent the questions asked of him. “You still haven’t given me the educational benefits,” he said. Park answered by pointing to all the amicus briefs filed on his client’s behalf. These briefs, he contended, suggested that racial diversity could further things like the “robust exchange of ideas,” team-building, and critical-thinking skills among UNC undergraduates. Not once did Park mention anything the school had done to show empirically that these were, in fact, the educational benefits of diversity on its campus, or that race-based admissions were behind them.

Several justices took issue also with how Park and Seth Waxman, the lawyer representing Harvard, seemed to define diversity solely in terms of race and ethnicity. They reminded Park and Waxman that, while the Court in Grutter had held that universities have a compelling governmental interest in diversity writ large, they don’t have such an interest in strict racial and ethnic diversity. Park and Waxman argued that many different types of diversity are present on their clients’ campuses.

It was a point that Cameron Norris, representing plaintiff Students for Fair Admissions (SFFA) in the Harvard case, easily refuted. He noted, for example, that only 9 percent of incoming freshman at Harvard are ideologically conservative, while “there’s 23 rich students for every one low-income student on campus.” Norris concluded, “Besides its racial statistics, [Harvard] is not diverse in hardly any other way. And so I think the compelling interest [the Court] recognized in Grutter is not what’s actually being pursued on Harvard’s campus.”

In Grutter, the Court noted that a university’s use of race in admissions would only be considered narrowly tailored if two conditions were met. First, race had to be just “one factor among many” that was taken into account when deciding whether to admit an applicant. Second, it had to be used only after the university had determined that no workable, race-neutral alternatives existed. In making SFFA’s case, Norris pointed out that the district court found “race is determinative for 45 percent of blacks and Hispanics who get into Harvard.”

Harvard’s own attorney conceded to Chief Justice John Roberts that Norris, at least to some extent, was correct. What ensued after Waxman’s concession was, perhaps, one of the most memorable exchanges of the oral arguments. “Race, for some highly qualified applicants can be the determinative factor,” he said, “just as being the . . . oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.” Responded Roberts: “We did not fight a civil war about oboe players.”

As for race-neutral options, several justices seemed receptive to SFFA’s argument that under their proposed alternative— which would do away with the admissions tip awarded to the children of legacies, donors, and faculty and staff, and instead add a tip for low-income applicants—white enrollment at Harvard would decrease, combined black and Hispanic enrollment would rise slightly, and Asian-American enrollment would increase, along with socioeconomic diversity. Yet Waxman responded by contending that such an alternative would threaten Harvard’s academic standing and could potentially lead to a slight drop in the school’s average SAT scores. That raises the question: Does a slight drop in a school’s standardized test scores warrant racial discrimination?

At the end of her opinion in Grutter, O’Connor set a time limit on the use of racial preferences in higher education admissions—necessary, she wrote, because racial classifications are inherently pernicious. A number of the justices asked Park and Waxman when they suspected Harvard and UNC would no longer need to use racial preferences in admissions. But these attorneys conceded that their clients planned to use race as a factor in admissions well-beyond Grutter’s 25-year mark—and failed to give the Court a tangible point past which they thought race-based admissions would no longer be needed.

Grutter suggested multiple conditions that had to be satisfied if a university wished to use race in its admissions process. The fact that neither Harvard nor UNC’s attorneys could provide a serious answer when questioned about any of these conditions suggests that a majority of the justices will vote to overturn affirmative action.

Photo by Samuel Corum/Getty Images


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