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The US Supreme Court’s conservative majority on Monday expressed scepticism over universities’ authority to consider race as a factor in college admissions while hearing arguments in two cases on affirmative action that could have significant implications for American society and business.
In a marathon session lasting five hours, several conservative justices proposed an alternative, race-neutral admission system as they heard cases involving policies the University of North Carolina, a public university, and Harvard University, the private Ivy League institution.
The court’s decision could significantly affect how American universities, some of the most sought-after worldwide, manage admissions, and result in radical changes to a system that for decades has taken race into account with the aim of building diverse student bodies.
The court’s six conservative justices focused on pinpointing an expiry date for admissions programmes that take race into consideration, with Amy Coney Barrett quoting a previous Supreme Court decision that described racial classifications as “potentially dangerous”.
Clarence Thomas also questioned the educational benefits of diversity. When UNC’s counsel said diversity could lead to higher productivity, Thomas said: “I guess I don’t put much stock in that because I’ve heard similar arguments in favour of segregation too.”
Samuel Alito appeared partial to the argument that giving “a plus” to a minority student would disadvantage another in the “zero-sum game” of college admissions.
The three liberal justices strongly defended the practice, saying that applicants could choose whether to disclose their race, and that it was one of numerous factors considered in admissions.
Ketanji Brown Jackson said she feared the petitioner’s arguments implied students would need to “mask their identities” in the application process “just on the basis of their difference”.
While “everybody would rather achieve all our racial diversity goals through race neutral means”, Elena Kagan noted, the question was whether schools could “go race conscious” when needed.
Sonia Sotomayor warned that banning a consideration of race had in some cases led to a fall in enrolment from minority students, particularly black and Native American individuals. “There is a high price to pay by banning the minor use of race in college admissions, isn’t there?” she said.
Kagan also criticised the argument that it did not matter if institutions “look like America”.
“These are the pipelines to leadership in our society,” she said. “I thought that part of what it meant to . . . believe in American pluralism is that actually our institutions are reflective of who we are as a people in all our variety.”
Elizabeth Prelogar, US solicitor-general, argued in favour of the universities, saying the government had an interest in preserving diverse student bodies who would go on to shape the country’s military and federal agencies.
Students for Fair Admissions, a non-profit seeking to abolish racial considerations in admissions, brought both cases. It argues race-based affirmation action has benefited African-American and Hispanic students to the detriment of Asian Americans and others.
The group is asking the court to over-rule Grutter vs Bollinger, a landmark 2003 Supreme Court decision that allowed universities to consider race in admissions by reaffirming that diversity is a governmental interest.
Both universities named in the cases urged the court to consider the “educational benefits” of diversity.
Olatunde Johnson, professor at Columbia Law School, had said there was “certainly a risk” that a ruling against the universities could curb the diversity of student bodies and make colleges “vulnerable over fear . . .[of] lawsuits”.
The court’s 6-3 conservative majority has already challenged longstanding legal precedents on issues such as abortion, suggesting they may be open to overturning Grutter as well. A lawyer involved in the case has told the Financial Times that “everyone is operating on the assumption” that the court will limit affirmative action at universities.
But Johnson said it would depend on the breadth of the court’s ruling, which may be difficult to predict given several justices had never expressed a public view on affirmative action.
Corporate America is watching these cases closely, with concern that a ruling against universities will limit the diversity of their future recruits. Dozens of large businesses including American Airlines, General Electric, Meta, Google and Apple filed a brief in support of the colleges.
Kagan on Monday highlighted the need for companies to “have racially diverse workforces . . . to achieve their economic objectives”.
If affirmative action precedents are overturned, “it may well be the case that a lot of these larger companies are then going to be the next defendants in these sorts of lawsuits”, said Eric Talley, professor at Columbia Law School.
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