US Supreme Court signals end to affirmative action as trial opens

The US Supreme Court’s conservative majority has signalled it will forbid affirmative action in university admissions after hearing oral arguments on the longstanding practice, leaving the Biden administration pleading for a compromise.

The nation’s top court, in the day-long exchange with lawyers on both sides, largely affirmed through its questioning the widespread expectation that its 6-3 conservative majority will end the court’s decades-old position that colleges can consider race as a factor in admissions decisions.

Three of the justices have previously voted against racial preferences in higher education, and the three new conservative members posed questions sympathetic to the idea that racial considerations create their own problems while returning dubious benefit.

The court is considering two lawsuits on the matter – one involving a public institution, the University of North Carolina at Chapel Hill, and the other concerning a private, Harvard University. The two universities prevailed in lawsuits against them at lower-court stages, both proving that they met the Supreme Court’s existing standard that allows the consideration of race in applications processes as long as it is not a deciding factor.

But the Supreme Court, in a ruling expected by June, is seen as likely to overturn that standard – created by its own 2003 ruling in Grutter v Bollinger, involving the University of Michigan – asserting during the day of oral arguments that institutions have a range of tools for improving the racial diversity of their campuses without any explicit consideration of race.

Several of the conservative Supreme Court justices suggested that if Harvard was truly serious about improving the racial composition of its student body, it would sharply reduce or eliminate admissions preferences and advantages for wealthier applicants, athletes and children of alumni and faculty.

The Biden administration was represented in the day’s rhetorical exchange by the US solicitor general, Elizabeth Prelogar, who pleaded with the court to at least consider a solution that aggressively pushes universities towards the greater use of such alternative tools without fully forbidding the use of race-based considerations if those alternatives prove insufficient.

Ending affirmative action in college admissions outright, Ms Prelogar told the court, would worsen racial inequities throughout the country, in areas that include corporate leadership, healthcare and the military. The court, she said, should think about “the profound consequences of court’s decision here for the nation that we are and the nation that we aspire to be”.

The Supreme Court’s conservative majority, however, appeared ultimately disinclined to follow her suggestion. The court’s chief justice, John Roberts, said that universities desiring race-based outcomes will always want to use a race-based tool.

“I don’t know how you can say the programme will ever end,” Justice Roberts told North Carolina’s solicitor general, Ryan Park, who argued on behalf of his state’s flagship university.

Leaders across US higher education have largely sympathised with the idea of racial preferences in admissions, while noting it’s a tool of direct relevance only to the relatively few US institutions with highly competitive admissions processes.

Academics and others have emphasised, however, the fact that such elite institutions produce a disproportionate share of leaders in all sectors of US society, and that some competitive institutions and statewide systems do account for large numbers of students. Two of the most prominent are the flagship campuses of the University of California and the University of Michigan, both of which have seen sharp declines in their enrolment of black students in the years since voters in their states banned the use of racial preferences in admissions, and have spent hundreds of millions of dollars on recruitment efforts aimed at overcoming those prohibitions.

The cases against Harvard and the University of North Carolina were brought by a conservative organisation known as Students for Fair Admissions, which has adopted the tactic of arguing that it represents the interests of ethnic Asian students who are heavily represented at elite US institutions but could win even higher shares of their student bodies if admissions decisions were based solely on academic measures.

An attorney for the group, Cameron Norris, suggested that current Supreme Court precedent was letting Harvard treat ethnic Asian students now the way its overtly racist then-president, Lawrence Lowell, used the university’s admissions processes in the 1920s to eliminate Jewish applicants.

The attorney representing Harvard, Seth Waxman, told the court that the university was clearly ashamed of its behaviour during that era, blaming it on the “racist antisemitic policies of a single Harvard president”. But that history has no “resemblance whatsoever” to current Harvard practices, in which a 40-person admissions committee collectively assesses each application, said Mr Waxman, who served as US solicitor general in the Clinton administration.

paul.basken@timeshighereducation.com