Oral arguments in two cases concerning affirmative action admission practices at colleges and universities were heard at the U.S. Supreme Court on Monday, and some justices on the court appear open to the idea of retiring these race-based admission policies.
Universities began adopting race-based affirmative action policies in the mid 1960s after President Lyndon Johnson signed Executive Order 11246, which was later amended by Executive Order 11375, also by Johnson.
Harvard University and the University of North Carolina at Chapel Hill’s admissions policies, which discriminate against Asian applicants, were challenged by Students for Fair Admissions, which has a separate case against the University of Texas Austin.
“Our mission is to support and participate in litigation that will restore the original principles of our nation’s civil rights movement: A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university,” the student group writes on its website.
In Students for Fair Admissions v. UNC, Justice Clarence Thomas on Monday told the attorney for North Carolina to give the court a “clear idea of what the education benefits of diversity at the University of North Carolina would be. 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. I’d like you to give us a specific definition of diversity in the context of the University of North Carolina.”
“We define diversity the way this court has and this court’s precedents, which means a broadly diverse set of criteria that expands to all different backgrounds and perspectives and not solely limited to race,” responded North Carolina Solicitor General Ryan Park, who is defending the race-based quota. Park said there are many different diversity factors that are considered as a greater factor in the school’s admissions process than race.
Justice Thomas responded: “I didn’t go to racially diverse schools, but there were educational benefits, and I’d like you to tell me expressly when a parent sends a kid to college that they don’t necessarily send them there to have fun or feel good or anything like that. They send them there to learn physics or chemistry or whatever their study. So tell me what the educational benefits are.”
Park described the “truth-seeking function of learning in a diverse environment” and said students in racially diverse schools perform better. He said that the program reduces bias.
“I don’t put much stock in that because I’ve heard similar arguments in favor of segregation, too,” Justice Thomas responded.
The lawyer for Students for Fair Admissions pointed out that in the current affirmative action program, some races get preferred treatment, while others, such as Asians, are discriminated against.
“Some races get a benefit,” he said. “Some races do not get a benefit.”
Chief Justice John Roberts asked the lawyer for Harvard, Seth Waxman, if the university uses race as a determining factor in admissions. Waxman said race was considered in the same fashion that “being an oboe player in a year in which the Harvard Radcliffe Orchestra needs an oboe player will be the tip.”
Roberts responded to Waxman: “We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination and that’s why it’s a matter of considerable concern. I think it’s important for you to establish whether or not granting a credit based solely on skin color is based on a stereotype, when you say this brings diversity of viewpoint.”
Students for Fair Admissions argued that Harvard violates Title VI of the Civil Rights Act, because it discriminates on race. Asian American students are less likely to be admitted than white, black, or hispanic applicants. The University of North Carolina violates the 14th Amendment equal protection rights, barring racial discrimination by any government entity, the student group argued. As a state university, UNC is a government entity.
Students for Fair Admissions is led by its president Edward Blum and is representing over 20,000 students and parents who are mostly Asian Americans and Pacific Islanders saying they have been discriminated against by university admissions practices. The group is trying to get the landmark case Grutter v. Bollinger, which permits universities to use race-based admission policies to create more campus diversity.
Appeals courts in Boston and North Carolina have ruled against Students for Fair Admissions, which then appealed their case to the Supreme Court.
Even some liberal skeptics of the affirmative action admissions programs point to the inconsistency it has with liberal values.
“In most public discussions, ‘affirmative action’ in higher education is treated as one of the core issues that divides liberals from conservatives. It is rare in public life to hear a Democratic leader criticize the use of racial preferences in college admissions, and it is equally rare to hear a Republican support them. Supreme Court opinions on the use of preferences have typically broken down as splits between ‘liberal’ supporters and ‘conservative’ critics, and many journalists have opined that such preferences are now in great danger because of the six-to-three conservative majority on the Court,” wrote Richard Sander at the James G. Martin Center for Academic Renewal.
“The ideological divide on this issue has always mystified me because, as a lifelong liberal who tries to do objective empirical research on social issues, current admissions practices at colleges and universities strike me as both inconsistent with liberal values and ineffective in achieving liberal goals,” wrote Sander, who is an economics professor at UCLA.
Learn more about the students and their fight for equity, and arguments that the affirmative action admissions programs are “Trojan horses for discrimination.”