WASHINGTON-
The survival of affirmative action in higher education appeared to be in serious trouble Monday in a conservative-dominated US Supreme Court after hours of debate on perplexing questions of race.
The most diverse court in the nation’s history (nine justices include four women, two Black and one Latina) is weighing challenges to admissions programs at the University of North Carolina and Harvard that use race among many factors to seek out a diverse student body. .
The court’s six conservative justices expressed doubts about the practice, which has been upheld by Supreme Court decisions dating back to 1978. The court’s three liberals defended the programs, which are similar to those used by many other public universities. and private.
Getting rid of race-conscious college admissions would have a “destabilizing” effect that would cause the ranks of black and Latino students to plummet at the most selective schools in the country, said Attorney General Elizabeth Prelogar, representing the Biden administration.
Following the overturning of the half-century abortion precedent of Roe v. Wade in June, the cases offer a major new test of whether the court, with its 6-3 conservative lead, will swerve the law sharply to the right in another cultural conflict. an issue that conservatives have had in their sights for years.
The questions offered by the justices further exposed the sharp ideological divisions on the court in an era of intense political polarization in the country.
Justice Clarence Thomas, the court’s second black justice, who has a long history of opposing affirmative action programs and other conservative positions, noted that he did not go to racially diverse schools, at one point saying, “I heard the word ‘diversity’ multiple times, and I have no idea what it means.” He also challenged affirmative action advocates to “tell me what the educational benefits are.”
Judge Amy Coney Barrett, another conservative, pointed to one of the court’s earlier affirmative action cases, saying she anticipated ending its use by declaring that any classification based on race was “dangerous” and had to come to an end. .
She was among several conservatives who pressed attorneys representing the schools and the Biden administration to take a guess as to when that day would come.
“Your position is that race matters because it’s necessary for diversity, that it’s necessary for the kind of education you want. It’s not going to stop mattering at any particular point,” said Chief Justice John Roberts, who has long been skeptical of racial considerations.
Judge Samuel Alito compared affirmative action to a footrace in which a minority applicant can “start five yards closer to the finish line.” But liberal Justice Sonia Sotomayor, the first Hispanic member of the court, rejected that comparison, saying that what universities are doing is looking at students as a whole.
Similarly, Justice Ketanji Brown Jackson, the court’s newest judge and its first black woman, also said that race was being used among 40 different factors at the University of North Carolina as part of a wide-ranging review of the applicants.
“They’re looking at the whole person with all these characteristics,” he said.
Justice Elena Kagan, who was the first dean of Harvard Law School early in her career, called the universities “conduits for leadership in our society” and suggested that without affirmative action, minority enrollment will decrease.
“I thought that part of what it means to be an American and to believe in American pluralism is that actually our institutions, you know, reflect who we are as a people in all its variety,” he said.
The Supreme Court has twice upheld race-conscious college admissions programs in the last 19 years, including just six years ago.
But that was before former President Donald Trump’s three appointees joined. Jackson was chosen this year by President Joe Biden.
Lower courts have upheld the programs at both UNC and Harvard, rejecting claims that the schools discriminated against white and Asian-American applicants.
The cases are brought by conservative activist Edward Blum, who was also behind an earlier affirmative action challenge against the University of Texas, as well as the case that led the court in 2013 to end the use of a key provision of the historic Voting Rights Act.
Blum formed Students for Fair Admissions, which filed the lawsuits against both schools in 2014.
The group argues that the Constitution prohibits the use of race in college admissions and calls for earlier Supreme Court decisions to the contrary to be overturned.
Colleges and universities can use other race-neutral ways to assemble a diverse student body, including by focusing on socioeconomic status and removing preference for the children of alumni and major donors, Students for Fair Admissions argues.
Judge Neil Gorsuch pressed Ryan Park, a North Carolina attorney, on why colleges shouldn’t be forced to remove those preferences, “which tend to favor children of wealthy white parents,” to see if he would allow them to increase diversity regardless of race.
A university might end up with a more diverse student body, but “we’d just have a lousy squash team and no art museum,” Gorsuch said.
In the Harvard case, attorney Seth Waxman pointed to lower court findings rejecting claims that Harvard discriminates on the basis of race. Waxman said the school is looking for many different kinds of diversity, including having oboe for its student orchestra.
“We’re not fighting a civil war over oboes,” Roberts responded, a pointed allusion to the nation’s long struggle against race.
Schools say they use race in a limited way, but removing it as a factor would make it much more difficult to achieve a student body that resembles the United States.
The Biden administration is urging the court to preserve race-conscious admissions. The Trump administration had taken the opposite position in earlier stages of the cases.
UNC says its freshman class is about 65 percent white, 22 percent Asian-American, 10 percent black and 10 percent Hispanic. The numbers add up to more than 100 percent because some students report falling into more than one category, a school spokesman said.
White students make up just over 40 percent of Harvard’s freshman class, the school said. The class is also just under 28 percent Asian American, 14 percent Black and 12 percent Latino.
Nine states already prohibit any consideration of race in admissions to their public colleges and universities: Arizona, California, Florida, Georgia, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.
In 2020, California voters easily rejected a ballot measure to bring back affirmative action.
Public opinion on the subject varies depending on how the question is asked. A 2021 Gallup poll found that 62 percent of Americans favor affirmative action programs for racial minorities. But in a March Pew Research Center survey, 74 percent of Americans, including most Black and Latino respondents, said race and ethnicity should not factor into college admissions.
Jackson and Roberts received their undergraduate and law degrees from Harvard. Two other judges went to law school there.
Jackson will not be involved in the Harvard case because until recently he was a member of an advisory board of directors there.
A decision in affirmative action cases is not expected before late spring.