Supreme Court oral arguments begin in affirmative action cases

WASHINGTON (TND) — The 6-3 conservative Supreme Court heard nearly five hours of oral arguments Monday in a pair of affirmative action cases against the University of North Carolina-Chapel Hill and Harvard that could upend efforts to diversify campuses throughout the United States.

The plaintiff in both cases is the group Students for Fair Admissions, led by conservative activist Edward Blum. The group argued the school's consideration of race during admissions is unconstitutional.

SFFA claimed UNC violated Supreme Court precedent, and that precedent should be overturned.

“The court has said colleges and universities can use race in admissions if they satisfy two criterion. The first is that they articulate some compelling interest," Rutgers Law School Vice Dean Stacy Hawkins said. “The second criterion is that they have to use race, right, no greater than necessary to achieve that interest, right, it has to be necessary.”

Lower courts have ruled in the schools' favor, finding their admissions programs considered race within these boundaries.

The first part of SFFA's argument against UNC is the school could use race-neutral alternatives to achieve the desired level of diversity on its campus, like giving greater weight to socioeconomic disadvantage.

"But then their second argument is, even if there aren’t race-neutral means, you just can’t use race, period. So they are also arguing that the Supreme Court should completely overturn the precedents so that you can’t even use race in this mild, wholistic way," said Kim Forde-Mazrui, director of the Center for the Study of Race and Law at the University of Virginia School of Law.

Forde-Mazrui said SFFA's case against Harvard is similar —they claim Harvard, too, could use race-neutral alternatives— but a little more complicated.

"They’re also saying that Harvard gives too much weight to race — it’s not just a mild factor — and they also say that Harvard is essentially pursuing a quota. They’re saying that they’re trying to have a racially balanced student body and the Supreme Court has said that you can’t have quotas, you can’t try to achieve a particular percentage of different racial groups," Forde-Mazrui said.

Hawkins said it's clear why Blum's group chose to go after Harvard. In 1978, Justice Lewis Powell pointed to Harvard's affirmative action practices as an exemplary method for admissions.

“Of course every university after that modeled their admissions on Harvard," Hawkins said. “Opponents have been challenging other university plans but I think they finally said, why not go straight to the source, right? Harvard was the one that was named the model and if we can strike down the Harvard plan, then obviously every plan falls as a consequence.”

Blum has failed in the past to convince the Supreme Court that affirmative action in education is unconstitutional.

After Abigail Fisher, who is white, was denied admission to the University of Texas at Austin in 2008, Blum recruited her to challenge the school's use of affirmative action. Fisher argued the school violated her 14th Amendment right to equal protection under the law. In 2016, the Supreme Court ruled against Fisher. The decision to uphold the university's race-conscious admissions process was celebrated by supporters of affirmative action, including then-President Barack Obama, who said the court "upheld the basic notion that diversity is an important value in our society."

Hawkins described Blum's agenda as one that tries to "impose colorblindness" on American law and policy.

In this case, she said Blum changed his tactics to conflate negative action against Asian-American applicants with affirmative action, which have nothing to do with each other. The argument was also made in an amicus brief by Boston University School of Law professor Jonathan Feingold and University of New Mexico School of Law professor Vinay Harpalani in support of UNC and Harvard.

"Negative action, which is the kind of allegation on behalf of Asian-Americans in this litigation is that relative to white applicants — white applicants, not other applicants of color — relative to white applicants, Asian Americans actually suffer in the admissions process at Harvard. The reason why is that Asian-Americans don’t benefit from these other preferences like legacy preferences, like athletic preferences and so they suffered negative action based on their race and ethnicity," Hawkins said, adding that some Asian-Americans have benefitted from affirmative action.

Following Monday's oral arguments, many court watchers observed the court's conservative majority seemed inclined to overturn the precedent that affirmative action in education does not violate the 14th Amendment.

Many universities, some of which exist in states that have banned affirmative action, have filed amicus briefs supporting the consideration of race during the admissions process.

In 1996, California banned consideration of race and gender in public education. Soon after, the number of Black, Latinx and Native American students in the University of California system plunged. Race-neutral outreach efforts failed to maintain diversity in the student body.

In an amicus brief, the UC president and chancellors provided the example of UC Berkley's freshman class of 2021. Out of 6,931 students, there were only 258 African Americans and 27 Native American students.

"Given that a significant majority of undergraduate classes offered at UC Berkeley have fewer than 50 students, simple mathematics dictate that African-American and Native American students will often be the only student of their race in their courses," they wrote.