4 Takeaways From the Supreme Court’s Affirmative Action Hearing

Supreme Court justices listened to arguments regarding two affirmative action cases involving UNC and Harvard.

Published October 31, 2022

Edited by Reece Johnson
4 Takeaways From the Supreme Court’s Affirmative Action Hearing
Admissions Higher Ed Policy
Photo by Al Drago / Bloomberg Creative Photos / Getty Images

  • The future of affirmative action hangs in the balance as the Supreme Court readies two related decisions.
  • Many expect the conservative-leaning court could rule to strike down the decades-long policy.
  • The decision could upend race-conscious admissions across the country.

The future of affirmative action now rests in the Supreme Court's hands after justices listened to arguments from all sides on Monday.

The Supreme Court held hearings for two cases brought by the conservative nonprofit Students for Fair Admissions against the University of North Carolina (UNC) and Harvard University. The nonprofit seeks to end the practice of institutions taking race into account during the admissions process, while the universities argue that doing so contributes to a better academic experience for all students.

While the court initially combined the two related cases, it later decoupled them.

Some theorized it was to allow Justice Ketanji Brown Jackson to recuse herself from the Harvard case — a university she previously was closely tied to. Others hypothesized it allows the justices to give different opinions based on the private-public distinction.

Here were some of the main themes raised over the five-hour hearings.

Where's the Finish Line for Affirmative Action?

That was a popular question raised by many Supreme Court justices on Monday. While both UNC and Harvard take race into account during admissions, representatives from both institutions insisted they hope to eventually move to a race-neutral admissions policy. They could not, however, give a definitive timeline for when that might be.

The timeline is relevant due to the 2003 case Grutter v. Bollinger, which upheld affirmative action. In the decision, justices argued that race-conscious admissions is not ideal, and the justices hoped that universities would abandon this policy as soon as possible.

This opinion specifically stated it should happen within the next 25 years.

Representatives from both UNC and Harvard declined to say if they'll be able to meet that timeframe and still maintain their diversity goals.

U.S. Solicitor General Elizabeth Prelogar, representing the U.S. government in support of the institutions, said she does believe that "progress is being made" at a societal level. She stressed that both schools are reevaluating their policies constantly to determine whether it is still needed.

The justices continually pushed for a specific metric that colleges can use to determine whether they've reached appropriate diversity. Defendants responded that a clear-cut answer does not exist.

College Admissions as a Zero-Sum Game

Legal counsel from Students for Fair Admission stressed one point throughout their arguments: that admissions is a zero-sum game.

This means that for every student a college gives preferential treatment to in admissions, another student may suffer and not be admitted. Attorney Cameron Norris claimed that affirmative action has come at the cost of Asian American students.

This would qualify as discrimination based on race, Students for Fair Admissions argues.

Attorneys supporting affirmative action pushed back on this claim.

Seth Waxman, who represented Harvard during the hearing, said that race only plays a small role in an overall comprehensive admissions process that includes some 40 admissions officers at Harvard. Additionally, it is an oversimplification to say that every minority applicant is automatically viewed more favorably than a similar applicant who is white, for example.

Norris, meanwhile, argued that any thumb on the scale — no matter how minor — is unconstitutional for a school that receives federal funds.

The Value and Constitutionality of Race-Conscious Admissions

Much of the discussion revolved around the constitutionality of affirmative action, but Justice Clarence Thomas seemed interested in discussing the value of the policy to begin with. Thomas is one of two Black Supreme Court justices and the only one involved in the Harvard case.

He questioned why a diverse populace of students was something universities should strive for.

Lawyers defending affirmative action stressed that studies have shown students feel less isolated if they are in a diverse school environment, and it helps reduce stereotypes among students. Additionally, the attorney for UNC said studies have shown diverse groups of people are able to perform at a higher level.

An attorney for Students for Fair Admissions didn't dispute there is value in student diversity. However, he argued that it doesn't meet the "compelling interest" legal standard.

Thomas stressed in the hearing that a diverse student body must correlate to better academic quality in order for affirmative action to be justified.

Affirmative Action by Another Name

Supreme Court justices peppered attorneys with hypothetical situations throughout the hearing. Many involved ways in which universities may try to circumvent a ban on race-conscious admissions, should the court strike it down.

For example: What if a school were to give preferential treatment to descendants of slaves?

The attorney for Students for Fair Admissions said it would be unlawful for a school to make admissions decisions based on this.

Another popular discussion point surrounded the role of essays in college admissions.

If affirmative action were to be struck down, would an admissions officer have to ignore a student's reference to their race in a college essay? What about if their essay was all about how they have had to overcome discrimination based on their race?

Students for Fair Admissions said this would not run afoul of the court's decision in this hypothetical. The essay exemplifies a student's ability to overcome obstacles and doesn't unfairly privilege one student over another because of their race.