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Supreme Court arguments

Conservative Supreme Court justices skeptical of continuing affirmative action, while liberal justices defend programs

Activists rallied outside the Supreme Court in Washington as people lined up on Monday to watch the oral arguments in the affirmative action cases involving Harvard and the University of North Carolina at Chapel Hill.Shuran Huang/New York Times

On Monday, the Supreme Court heard arguments in two cases challenging affirmative action. The likely outcome, experts said, is a nationwide ban on the consideration of race or ethnicity in college admissions.

The lawsuits before the Court challenged the admissions practices of Harvard University and the University of North Carolina-Chapel Hill, alleging that the schools’ policies amounted to illegal racial discrimination. The schools denied the allegations and prevailed in lower courts.

Globe reporters Deirdre Fernandes and Mike Damiano covered the arguments live today, joined by a panel of experts on constitutional law and affirmative action.

Here’s a look at how the arguments before the court unfolded. And click here to read more about who joined us for the discussion.


October 31, 2022


Cross-racial solidarity important in fight for affirmative action, says Harvard student who took the protest to D.C. — 3:10 p.m.

By Katie Mogg, Globe Correspondent

Shruthi Kumar went to the nation’s capitol this morning to represent Harvard’s South Asian Association in protests outside the Supreme Court. Kumar said, at a time when diversity at higher education institutions is under threat, it is more important than ever for marginalized communities to unite.

Above all, she said she wants the public to understand that affirmative action is crucial to creating a diverse next generation of workers and leaders. The first step to doing that is having diverse educational institutions.

”In order to correct the systemic oppression that exists in the [US] education system, affirmative action policies make it at least a little bit better and more equitable chance at having a successful future,” she said.

Despite the Supreme Court’s conservative majority, Kumar said she remains optimistic that diversity within colleges and universities will be upheld.

”I don’t think to be conservative means to be against diversity,” said Kumar, a junior at Harvard, and co-president of the South Asian Association. “I have fear, but I am optimistic that institutions themselves can at least recognize the importance of diversity and try to create equitable systems.”

Kumar said it’s important that South Asians like her are represented in the fight for affirmative action. She said there should be more South Asian support for affirmative action, and that anti-Black racism within the South Asian community can hinder cross-racial solidarity at a time when it’s needed most.

”Everyone needs to be fighting for each other,” she said.

Justices finish hearing arguments on affirmative action — 2:58 p.m.

By Deirdre Fernandes, Globe Staff

After five hours of questions and presentations the justices have finished hearing arguments on race-conscious admissions.

As expected, the conservative justices expressed plenty of skepticism about the need to continue affirmative action for college admissions. Many asked whether the country had reached its endpoint on using race as a factor in admissions and questioned whether race neutral admissions would help colleges achieve some level of diversity.

Justices Jackson, Sotomayor, and Kagan, appointed by Democratic presidents, made impassioned pleas for the need to continue race conscious admissions and questioned whether students would be disadvantaged because they could not discuss how their racial experience impacted their education.

During the session, the justices also touched on issues about legacy preferences and whether colleges needed to stop its use. The court’s decision could likely impact other aspects of college life, as Justice Coney Barrett pointed out, such as affinity group housing.

Justices are focused on an endpoint for race-conscious admissions — 2:39 p.m.

By Deirdre Fernandes, Globe Staff

The conservative majority on the Supreme Court has zeroed in on the question of when does affirmative action in college admissions end.

In 2003, Justice Sandra Day O’Connor in her opinion suggested that in 25 years colleges would no longer need to use race in admissions because society was changing.

But has society changed enough that colleges no longer need to consider race in admissions?

”We are getting closer to an ending point,” Waxman, Harvard’s lawyer said.

Solicitor General Elizabeth Prelogar said that it’s hard to imagine that suddenly after 25 years there isn’t a compelling interest to have diversity on college campuses.

The arc of progress in society has been slower than the court then envisioned, Prelogar said.

She added that some states are in different places in terms of diversity.

Feingold: Back to Justice O’Connor’s 25-year sunset. So much cognitive dissonance required for this conversation two years after the largest global uprising for racial justice ever and the basic insight that we have yet to reckon with racism in America.

My sense is that O’Connor’s comment about 25 years is convenient for advocates/Justices who are ready to end race-conscious admissions. There isn’t much substance beyond that. In part because the comment was so clearly aspirational and not intended to bind future Courts.

Barrett noting that Bakke is now 45 years old, but there doesn’t seem to be a clear end point. Again, the reality that affirmative action is still necessary makes sense in a country that hasn’t yet reckoned with its own legacy of racism.

Justice Alito grills Harvard on controversial ‘personal rating’ — 2:07 p.m.

By Mike Damiano and Deirdre Fernandes, Globe Staff

Justice Samuel Alito sharply questioned Harvard’s attorney, former US solicitor general Seth Waxman, over the “personal rating,” perhaps the most controversial and disputed feature of Harvard’s admissions practices.

The personal rating, a subjective measure of an applicant’s personal qualities, was the strongest — or at least the most emphasized — piece of evidence in the Students for Fair Admission lawsuit against Harvard.

Records produced by Harvard showed that Asian American applicants received lower personal ratings scores than all other racial groups, which was one factor that may have contributed to Asian Americans also having the lowest acceptance rate of any racial group.

Waxman argued that the personal rating had little impact on admissions choices and that it was merely a “triage” tool used to help admissions officers wade through the massive number of applications – 61,000 by his count – the schools received in a given year.

Alito appeared unmoved. “Does it make a difference or doesn’t it make a difference?” he asked.

“It doesn’t make a statistical difference,” Waxman said.

“Then why do you do it?” Alito asked.

Feingold: One key here: the “personal rating” score that allegedly harms Asian Americans is *not* affirmative action. It is a facially race-blind criteria that aggregates a number of other considerations. And, per SFFA’s own evidence, that bias benefits white applicants.

A couple explanations for disparities in personal rating scores between white applicants and Asian American applicants: implicit biases and attendance in elite private high schools.

Suk: If they want to make the personal rating unconstitutional, they would have to say that criteria that gives too much subjective discretion to decisionmakers like admissions officers should be scrutinized.

Warikoo: Personal rating is problematic, but my look at the data suggests it plays a small role. Still, Harvard still needs to scrutinize that issue. It seems like it maybe related to guidance counselors’ ratings, and there may be some anti-Asian bias. But again, ending affirmative action would not make a dent in this issue.

Feingold: Natasha, your conclusion is precisely the key point. Affirmative action wouldn’t make a dent because affirmative action isn’t the cause of anti-Asian bias.

Affirmative action fight pits minority groups against each other while isolating Asian Americans, Harvard student says — 1:51 p.m.

By Katie Mogg, Globe Correspondent

Kirthi Chigurupati, a freshman studying government and computer science at Harvard, said the affirmative action case has been on the minds of many students.

As a part of the school’s South Asian Association and South Asian Women’s Collective, she said many on-campus organizations feel a need to stand up for affirmative action.

”I think I align with most of the students here when I think affirmative action is very, very important, even as an Asian American woman,” she said.

Chigurupati said she understands why the Asian American community would be hesitant toward affirmative action considering that some believe the policy reduces the number of Asian American students on elite college campuses. However, she said she supports affirmative action because “the net benefit that it provides to other communities of color is a binding factor for me.”

Chigurupati said that the “model minority myth” paints Asian Americans as high-achieving and socioeconomically successful, and pins minority groups against each other while isolating Asian Americans.

Yet, students of color at Harvard are standing together and collectively advocating for the continuation of affirmative action, she said.

”If we don’t stand together and practice collective action, then there’s nothing that will come from these movements,” she said. “We should be blaming the system itself instead of focusing on other communities of color.”

Students for Fair Admissions argues Harvard should end legacy preferences — 1:34 p.m.

By Mike Damiano, Globe Staff

In a surprise move, a lawyer for Students for Fair Admissions, the plaintiff in the case against Harvard, argued that the university should end legacy preferences in admission. Legacy preferences are a controversial policy that gives the children of Harvard alumni a boost relative to other applicants. According to an internal Harvard study that emerged in the lawsuit, legacy status boosted an applicant’s chance of admission by roughly the same amount as being African American.

Feingold: SFFA arguing that Harvard should eliminate legacy preferences. But SFFA hasn’t actually asked the Court to prohibit legacy preferences. I’m wondering if a Justice will ask about that gap.

Warikoo: Plaintiff is right that Harvard should end legacy admissions, consider wealth, have more class diversity, reduce athletic preferences. But those will not make up for ending affirmative action, by any means. Unfortunately, the court can’t tell Harvard to end legacy admissions, to consider wealth, to stop squash recruiting. But he wants the court to tell them to stop considering race. the other stuff would continue, and Plaintiff knows that

Feingold: Which highlights that SFFA is committed to overturning settled precedent. But only some precedent. SFFA hasn’t asked the Court to overturn precedent that currently insulates legacy preferences from legal scrutiny.

Justice Kavanaugh may be open to preferential treatment for descendants of slaves — 1:15 p.m.

By Mike Damiano, Globe Staff

Justice Brett Kavanaugh raised the possibility of a much narrower conception of affirmative action when he asked a lawyer for Students for Fair Admissions whether the “descendants of former slaves” should be considered a racial classification.

Suk: I read Kavanaugh’s pressing of SFFA on whether “descendants of former slaves” is a racial classification as an openness to distinguishing the two.

David Bernstein has proposed a more limited version of affirmative action that would rely on such a distinction.

Bernstein: I’ve argued that universities likely should be allowed to engage in preferences based on descent from American slaves or growing up on an Indian reservations--these are classifications that correlate with race, but are primarily political/sociological/historical, rather than racial.

Somin: The question of whether you can give preferences to descendants of slaves (as opposed to blacks, as such) is also important. I wrote about it here. FWIW, I think preferences for descendants of slaves are, in principle, non-racial and thus presumptively legal. But, in practice, there is danger that schools will use race as a proxy for being such a descendant.

Greenfield suggested that even conservative originalists who are opposed to modern affirmative aciton may find justification for preferences for descendants of slaves.

Greenfield: The question of whether preferences for descendants of slaves would be permissible is a difficult one for originalists. The equal protection clause and the other reconstruction amendments were written in order to begin the repair of slavery and its horrors.

Suk: If “descendants of former slaves” is not a racial classification (which Kavanaugh seems open to), then it would pass rational basis review and the government interest in overcoming societal discrimination, even if not compelling, would be permitted.

Experts share their takeaways from arguments and questions on the UNC case — 1:03 p.m.

By Mike Damiano, Globe Staff

We asked our panel of experts if there were any surprises in the arguments or questions in the UNC case. Warikoo said there was one.

Warikoo: I am still struck by plaintiffs acknowledgement that considering race in context —experiences of discrimination, cultural heritage impact, immigration experiences — are permissible.

Feingold: Not surprised. But reaffirmed (a) the value of Justice Jackson’s voice on the Court and (b) how constrained our affirmative action conversations are. 2 years after the largest global uprising for racial justice, a modest tool to promote racial inequality & reckon with racism is on trial, not the web of institutional, social, individual forces that necessitate affirmative action in the first place.

In their briefs, SFFA claimed that Grutter is inconsistent with Brown v. Board. That’s coming out a little here. But it leads to the extreme conclusion that Brown prohibits historically white universities from considering race to integrate their campuses.

Warikoo: And agree with Jonathan on the value that Jackson brings to the court. It’s a shame she won’t be on the Harvard case.

Jackson made clear the problem of barring race while keeping 39 other considerations (I’m not sure where that number comes from), many of which (e.g., the 5th generation legacy example she gave) have explicitly racial impact that goes against increasing diversity/equity.

Suk: It was surprising that the Justices and General Prelogar discussed the different approaches taken to gender and women’s under- and over-representation in certain institutions. If that line of thinking were extended, less-than-strict scrutiny of race-conscious action could save affirmative action.

SFFA is steering away from originalism.

Greenfield: My takeaway from the first set of arguments is that nothing surprised me. The only way affirmative action survives is if the liberals get *both* Kavanaugh and Barrett. And both of those justices focused at some point on O”Connor’s 25 year expectation. I do not expect either of them to vote to uphold Grutter. And even if one of them votes with the liberals, because CJ Roberts is such a strong opponent of affirmative action, UNC will still lose.

Next up: Harvard — 12:55 p.m.

By Deirdre Fernandes, Globe Staff

The UNC Chapel Hill case just concluded and Students for Fair Admissions will present its case against Harvard next.

The courts tend to interfere less in private colleges than public universities such as UNC Chapel Hill. In this case, SFFA has specifically argued that Harvard’s admissions process disadvantages Asian-American students.

Discrimination against Asian-American students came up briefly in the UNC case, but will likely have a more prominent role in the arguments and questions from justices in this case.

Harvard has argued that race is one of many factors it considers in admissions and that eliminating race-conscious admissions would reduce the number of African American and Latino students admitted.

Arguments represent a last stand for the value of diversity in higher education — 12:53 p.m.

By Mike Damiano and Sahar Fatima, Globe Staff

David Hinojosa, arguing on behalf of UNC student-intervenors, mounts a full-throated defense for the value of racial and ethnic diversity in higher education. He argues that the benefits of diversity include fostering innovation by broadening perspectives.”

Racial interactions and dialogue between students helps better prepare them for the world that they’re going to work and live in,” Hinojosa says, adding that diversity also helps reduce stereotypes.

”You end up impacting the educational environment for all students because they are sharing their perspectives. They’re not necessarily feeling isolated to spokespeople,” he says.

Feingold: Hinojosa is drawing on important empirical evidence that racial diversity & race-conscious admissions reduces the stigma faced by students of color.

Greenfield: So much research shows that diversity provides significant benefits in large groups — from colleges to faculties to businesses to board rooms. Diverse decision making groups make better decisions than homogeneous groups. That’s empirically proven.

Feingold: Hinojosa helpfully explaining how affinity groups promote more racially inclusive campuses.

Indeed, a key argument made by universities in affirmative action cases for decades is that to foster an inclusive campus environment it was necessary to achieve a “critical mass” of students from minority groups. Otherwise, a tiny number of Black students on campus, for example, might be isolated. The schools have used that argument, among others, to make the case that they could not use race-neutral alternatives in place racial preferences in admissions.

Feingold: [The plaintiff]’s counsel closes by arguing UNC didn’t show commitment to race-neutral alternatives. Let’s not forget that for the first ~200 years of its history, UNC formally excluded non-white students, then resisted federal mandates to integrate, and only in 1998 recognized diversity as an institutional value.

Justice Clarence Thomas appeared unmoved by Hinojosa’s argument. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” he said.

Justice Samuel Alito asks about the interests of Asian American applicants — 12:50 p.m.

By Mike Damiano, Globe Staff

Justice Samuel Alito asks Hinojosa why he is not talking about Asian American applicants. “I was struck by the fact that the word Asian does not appear one time in your brief, yet Asian Americans have been subjected to de jure segregation,” Alito said, referring perhaps to the government’s internment of Japanese Americans during World War II among other forms of discrimination.

Hinojosa responded that “discrimination against Asian Americans is wrong. It’s bad. We do not condone it at all,” and added that specific claims of anti-Asian bias were not part of the record in the UNC case, which he is arguing.

Alito also questions Hinojosa on race being considered a “plus factor” for admissions. “Therefore, those who don’t get the plus factor have what is essentially a negative factor. It’s not the same thing?” Alito said.

Hinojosa argued that no one receives “bonus points” for their race or ethnicity. Race and ethnicity, according to Supreme Court precedent, can only be considered as one factor in a “holistic” assessment.

Advocates and opponents of affirmative action disagree on this point.

Warikoo: Ugh, plus factor is not the same as negative!

Bernstein: In a zero-sum game, it is.

But admissions preferences don’t always cut the same way. Some white applicants benefit from preferences non-race based preferences that are less likely to help Black and Hispanic applicants.

Feingold: Hinojosa adding on that 100s of less qualified white applicants admitted over higher performing Black & Latinx UNC applicants.

Harvard students rally for affirmative action: ‘Removing affirmative action would be a loss for everyone’ — 12:47 p.m.

By Daniel Kool and Katie Mogg, Globe Correspondents

Landon Fortenberry, a second-year graduate student studying Southeast Asian Regional Studies, said he does “have some sympathy for the Asian population,” but said Asian Americans tend to be better represented than other marginalized communities in higher education and beyond.

As students led chants in front of the John Harvard statue, he and fellow student and new friend, Elbert Liang, discussed the Supreme Court’s deliberations.

“Excellence needs to be contextualized, it looks different in different contexts,” Fortenberry told the Globe. “But I do understand the concern that is raised that Asians are being discriminated against, that they have lower personality scores.”

As part of Harvard’s application process, prospective students are assigned based on traits like perceived likeableness, courage, and “positive personality,” among others.

Liang, a third-year law student at Harvard, said losing affirmative action would “take away the futures of generations of marginalized students before they even leave their home.”

Liang, 27, said if education institutions are to make the world a better place, they need to accurately reflect the country’s diverse population.

“Removing affirmative action would be a loss for everyone,” he said.

Liang said he thinks it’s a myth that Asian communities would “be better off” with the end of affirmative action.

”Affirmative action cannot be taken down in the Asian community’s name, and the Asian community can’t be complicit either,” he said. “The Asian community is at its best when it is showing empathy and solidarity.”

Fortenberry said diversity is important on campus, but it needs to extend beyond just a range of smiling faces on brochures.

“More work could be done to foster a sense of belonging on campus,” Fortenberry said. “The work of diversity is not finished.”

As the crowd held it’s position in front of the John Harvard statue, tours continued to flow through the yard, and at least one family ducked behind the protesters to take pictures holding Harvard’s famous shoe.

“Our people have already been through this before, and we know how to be resilient and resist,” Cristian Gaines, a second year Harvard student, told the crowd. “There was a way, because there was a will.”

Some prospective students and families watched, taking photos and videos, but declined to comment.

As classes started and ended, the crowd’s size ebbed and flowed, but about a half-dozen students remained by 12:30 p.m.

The military benefits from race-conscious admissions, US government claims — 12:39 p.m.

By Deirdre Fernandes, Globe Staff

US Solicitor General Elizabeth Prelogar argues that the use of race conscious admissions is important for the military academies.

Ensuring the leadership of the military is diverse and reflective of the country reduces conflict in the ranks, Prelogar said.

The US Justice Department under the Biden administration has switched sides from the position taken by its predecessor. During the Trump administration, DOJ sided with Students for Fair Admissions in the case against Harvard.

Prelogar acknowledges the switch, but says the Trump administration did not take a position on the military academies specifically.

Greenfield: This is one of those SCOTUS arguments that are affected by larger politics. The fact that it is Biden’s SG, and not Trump’s, means that the US government is arguing in favor of affirmative action. If Trump were president, the SG would certainly be on the other side.

One of the larger trends at the Court happening this year is that all three liberal justices are women, and the Solicitor General is a woman. It is the first time in history that women played such a prominent role in the Court, and the first time that the liberal side of the Court (and the leading advocate of the Democratic administration) is a woman.

‘It’s easy to look around here and be able to see the value of diversity,’ Harvard student says — 12:24 p.m.

By Daniel Kool, Globe Correspondent

While waiting for the affirmative action rally to begin at Harvard, first-year student Oliver Slayton, who uses they/them pronouns, said the value of diversity cannot be undersold, especially at major universities like Harvard.

”I’ve learned so much more at Harvard about the world from my peers than I have from my teachers,” Slayton said. “And I do not believe that I would have learned nearly as much from my peers had they all been super well-resourced kids who had the tutoring and the dining and the summer college programs to be the very best in terms of numbers.”

Slayton said smaller colleges, which many argue will not be affected by the high court’s decision, still follow the lead set by high-ranking schools.

They said Harvard students seem mostly supportive of affirmative action, although some have been outspokenly critical of the practice.

”I think that students are able to have free, respectful conversations about it,” Slayton said. “It’s easy to look around here and be able to see the value of diversity.”

Slayton said, rather than stripping it back, affirmative action should be expanded to ensure campuses remain vibrant and representative of different walks of life.

”I think it’s hard to argue that it’s not a critical component of the admissions process,” Slayton said.

A lawyer representing UNC students who favor affirmative action makes his case — 12:13 p.m.

By Mike Damiano, Globe Staff

David Hinojosa, a lawyer representing UNC students who have joined the school’s defense, argues that race-conscious affirmative action is not “is not ‘discrimination’ per se.”

Hinojosa’s colleague, Ernest Bihm says that “David is trying to draw a distinction between intentional discrimination and the consideration of race within the context of the [Supreme Court’s precedents in] Grutter and Bakke,” two Supreme Court cases that established the framework for affirmative action in admissions. “We cannot assume that just because race is taken into account that that necessarily creates an equal protection problem.”

But Justice Clarence Thomas, a longtime opponent of affirmative action, appears unconvinced.

Feingold: Thomas is asking what’s different between 1960s Virginia excluding Black students & 2022 UNC trying to include Black students. He is effectively conflating race-conscious efforts to desegregate UNC’s campus with the formal policies that segregated UNC in the first place.

Hinojosa responds by defending the value of diversity on campus.

Feingold: For anyone wondering why the parties are talking so much about “diversity,” it’s because the Supreme Court has identified “diversity” as one of the few rationales that can justify a race-conscious admissions policy.

In the legal precedents allowing race-conscious affirmative action, the Supreme Court said that compensating for past racial injustice was not a legitimate reason to use affirmative action today. The Court also said that schools were not allowed to use affirmative action to maintain a particular “racial balance” on campus. Instead the Court recognized that diversity in and of itself was a “compelling interest” that justified the consideration of race in admissions, which means that schools practically obligated to argue that that’s why they favor the continued use of affirmative action.

Greenfield: If generalized social prejudice could be used as a compelling interest, the colleges’ arguments would be easier and more straightforward.

Feingold: Exactly. less than 15 years after the Civil Rights Act of 1964 [in Regents of the University of California v. Bakke], the court took off the table remedying societal discrimination as a compelling interest.

Affirmative action helps marginalized students reinvest in their communities, Harvard student says, as campus rally begins — 12:06 p.m.

By Katie Mogg, Globe Correspondent

Kiersten Hash, a sophomore studying government at Harvard, left class early to attend an 11:30 a.m. rally on campus advocating for affirmative action. Hash was disappointed the rally didn’t occur in time for her next class at 11:50, especially since affirmative action is a policy she’s deeply passionate about.

”Our racial identities are integral to our experiences so it wouldn’t make sense for it not to be considered,” said Hash, 19.

For Hash, the importance of affirmative action goes beyond creating diversity on campus. As a Black student, Hash said affirmative action helps marginalized students use the resources that Harvard offers to reinvest in their underserved communities.

”That’s a conversation that’s really lacking even in Harvard’s rhetoric around affirmative action, but it’s necessary,” she said.

If affirmative action is banned across the nation, Hash said it will be an existential threat to the Black community on Harvard’s campus.

Around 11:55 a.m. students rallied and chanted, “Diversity is under attack, what do we do? Stand up, fight back!”

See photos of protests from outside the Supreme Court — 12:01 p.m.

Students and activists rallied outside the Supreme Court as the court heard oral arguments in two cases that could decide the future of affirmative action in college admissions on Monday.J. Scott Applewhite/Associated Press
Activists rallied outside the Supreme Court as the court heard oral arguments in two cases that could decide the future of affirmative action in college admissions on Monday.J. Scott Applewhite/Associated Press
People rallied outside the Supreme Court as the court begins to hear oral arguments in two cases that could decide the future of affirmative action in college admissions.J. Scott Applewhite/Associated Press
Proponents for affirmative action in higher education rallied in front of the Supreme Court. Chip Somodevilla/Getty
A lone opponent to affirmative action in higher education demonstrated outside the Supreme Court.Chip Somodevilla/Getty

Justice Gorsuch asks a question that appears pointed at Harvards of the world — 11:53 a.m.

By Deirdre Fernandes, Globe Staff

Justice Neil Gorsuch asks about those other preferences that are likely to benefit wealthy, white students, and what would happen if universities eliminated them.

If a wealthy university eliminates legacy preferences, pluses for squash players and children of wealthy donors, could it achieve diversity without race-conscious admissions, he asks.

”We would have crummy squash teams and no art museum?” Gorsuch asks. “So what?”

This question may be aimed at the Harvards of the world.

Harvard has argued that it needs to use legacy admissions and donor children to create community and bring in resources that help all students.

Justice Ketanji Brown Jackson addresses the elephant in the room: preferences for legacies and athletes — 11:45 a.m.

By Mike Damiano, Globe Staff

Justice Ketanji Brown Jackson is pressing the plaintiff’s lawyer on the preferences selective universities often given to legacy applicants, recruited athletes, and other groups that are favored not on the basis of race. Warikoo and Feingold have previously argued that such preferences tend to benefit white applicants.

Warikoo: Jackson pointing out that Plaintiff is arguing that universities can give pluses to legacies, men, other groups, but not race.

Feingold: Jackson revealing that rigid colorblindness would function as a racial preference for white applicants – in essay writing & intergenerational wealth.

Greenfield: Justice Jackson’s intelligence and perspective is a very important addition to the dialogue at the Court. She is the most active rookie justice in decades.

Feingold argues that at some institutions legacy preferences are practically an affirmative action program for white applicants.

Feingold: Legacy preferences are uniquely problematic at a place like UNC -- founded as a whites-only institution, resisted Brown v. Board, defied federal mandates to integrate, and only recently recognized diversity as an institutional value.

Race should be a factor in admissions, like other factors, one Harvard student says — 11:36 a.m.

By Katie Mogg, Globe Correspondent

As the high court hears arguments on affirmative action, Nathan Lowry, a second-year law student at Harvard, said he believes the policy is crucial to maintain diversity at higher education institutions.

“I would hope that race would still be allowed as one of many factors in admissions,” he said. Lowry, 31, has previously served in the military, another metric used, he said, to bolster diversity in college campuses.

“As much as you can have a diverse population, that’s critical,” he said. “And I think race is a factor that should be considered.”

Justice Elena Kagan asks: What about gender? — 11:33 a.m.

By Mike Damiano, Globe Staff

Justice Elena Kagan, a liberal, raises the question of gender. Should schools be allowed to consider an applicant’s gender — and seek parity between men and women — even if “racial balance” is not?

Suk: Kagan is coming in on gender balance: notes that most constitutional democracies around the world permit gender quotas in many leadership positions.

Feingold: Kagan now asking if you could put “thumb on scale” for male applicants if they would otherwise be underrepresented on campus.

The plaintiff’s answer? Yes.

Warikoo: Wow, so Plaintiff is arguing that men can have a boost but not underrepresented minorities.

Greenfield: Yes, that is the ironic implication of a lower level of scrutiny for sex-based classifications. Kagan is making the irony clear.

Justices ask UNC attorney when the use of race conscious admissions should end — 11:25 a.m.

By Deirdre Fernandes, Globe Staff

Justice Alito and Justice Coney-Barrett are pushing UNC Chapel Hill’s attorney Ryan Park about when race conscious admissions should end.

In the Grutter decision from 2003, the court suggested the endpoint should be 25 years.

”What is your goal? How do you know it’s been achieved?” Alito asks.

Park skirts the issue of a specific deadline. Justice Kavanaugh notes that Park is struggling to answer when the goals of race conscious admissions have been achieved.

Feingold: Reason to believe that Justice O’Connor picked 25 years bc (a) it was a round number & (b) in that year, it had been 25 years since Bakke v. Regents (the first time SCOTUS engaged race-conscious admissions on the merits).

Suk: I can’t see how it will be helpful to anyone to have a narrower ruling that says race-consciousness is allowed but only until 2028.

Greenfield: Yes, Jonathan, it would be bizarre if that expectation was considered a holding. But Kavanaugh bristled when Park implied that it was not.

Feingold: Not a holding. Just another rhetorical tool to paint hostility to race-conscious remedies as principled adherence to precedent. (Even when the same Justices that cite O’Connor will likely overturn her opinion).

Justices question what happens to personal essays if race must not be considered — 11:19 a.m.

By Mike Damiano, Globe Staff

Justices Barrett, a conservative, and Kagan, a liberal, ask what will become of personal essays in college admissions if schools must not consider race.

Greenfield: Justice Barrett and Justice Kagan both asking about essays, and whether a college could take into account an essay that discussed a student’s experience of racism.

Suk: Will banning race-conscious admissions mean personal essays have to be ignored?

Feingold: Yes, if you give the plaintiff’s what they are asking for. BUT only for the students for whom race is salient to the lived experience. This is an important line of inquiry that exposes how the colorblind logic informing anti-affirmative action challenges is connected to resurgent efforts to censor conversations about race and racism in the classroom.

Somin takes a different view, arguing that taking account an applicant’s lived experience is not the same as giving a preference on the basis of race or ethnicity.

Somin: If a school gives me a preference for being a Russian Jew, that’s ethnic (or racial) discrimination. If it gives me one for being a victim of antisemitism (if I can prove I was), that’s different.

Warikoo: Plaintiff seems to be arguing that if the essay shows that race has played a role in an applicant’s life--e.g., through adversity, identity (e.g., travel to ancestral land), it should be permissible. So to me, he’s saying race CAN be named in the essay and play a role in admission. That’s a pleasant surprise!

Charles: Agreed. I think that’s why Kagan is jumping on it. I think there’s a difference between no race at all, which is what we expected, v. your racial history/culture matters and the state can take that into account. That’s a different argument. yes, narrower, but not total raceblindness.

Harvard student organizations plan to rally on campus in support of affirmative action — 11:10 a.m.

By Daniel Kool, Globe Correspondent

In Harvard Yard, a group of student organizations are planning an 11:30 a.m. rally for affirmative action, aimed to coincide with arguments at the Supreme Court. The rally will take place in front of the campus’s historic John Harvard statue.

The rally is being sponsored by the Black Students Association, the Asian American Association, and the Harvard Sikhs, among others.

Purvaja Modalk, 30, who is auditing a handful of classes at Harvard’s Kennedy School, said she did not know very much about the case herself, but the department has been abuzz all morning.

”Everybody is thinking about it today,” Modalk said. “I was just in my first class, and the professor started by saying that this is going to be a landmark decision, ‘So everybody be on the lookout.’”

By 11:15 a.m., the statue was still crowded with families snapping photos, while a wave of students left classes, some heading for the figure.

Justice Jackson poses hypothetical question about UNC applicants who want family backgrounds considered — 11:03 a.m.

By Deirdre Fernandes, Globe Staff

Justice Ketanji Brown Jackson poses a hypothetical with two applicants to UNC Chapel Hill who want their family histories acknowledged and taken into consideration.

One student’s family has been in the area since before the Civil War and generations have gone to UNC Chapel Hill and that student also wants to go to the university to honor that legacy. Another student’s family has also been in the area since before the Civil War, but his family were slaves, and his family members haven’t had the opportunity to go to UNC Chapel Hill and wants to honor that legacy by attending the college.

Jackson asks whether the Black student is harmed in this situation, because his racial experience can’t be considered. Could that create more problems and pose an equal protection violation? Jackson asked.

Strawbridge said UNC can look at other factors and consider the student for admission, including being first generation or socio-economic factors.

If affirmative action is banned, will ‘race neutral’ alternatives be permissible? — 10:57 a.m.

By Mike Damiano, Globe Staff

Admissions offices are already planning for how to maintain diversity if race-conscious affirmative action is banned, Angel Pérez, the CEO of the National Association for College Admission Counseling, told the Globe. They may use demographic data to target applicants from predominantly Black or Hispanic neighborhoods, for example. But it’s not clear that such strategies would pass legal muster.

Somin: The issue of whether facially [race] neutral policies intended to increase the representation of a particular racial group are legal is one that will become increasingly important if the Court bars the direct use of racial preferences or subjects them to tougher scrutiny.

Feingold: The Court seems to appreciate that the next target will be “race-neutral alternatives.” It’s worth noting that in separate litigation, many of the entities supporting the plaintiff’s suits are arguing that the 14th amendment and Title VI of the Civil Rights Act also prohibit “Race-neutral alternatives” when employed with a “racial purpose” – e.g., promoting a more racially diverse student body.

Suk: Is it possible to have a race neutral way of achieving racial diversity?

Somin: Under current precedent, a facially neutral, but racially motivated policy, is usually presumptively unconstitutional if the plaintiff presents evidence of the racial motivation.

Feingold: But, the Supreme Court has been clear that presumption of unconstitutionality should not apply in the context of facially neutral policies designed to promote racial diversity.

Somin: As Professor Feingold suggests, the underlying issue in these cases is whether use of racial preferences for “diversity” should get less strict judicial scrutiny than almost any other uses of racial preferences.

Feingold: Zooming out, the plaintiff’s attorney is effectively arguing that the 14A & Title VI ultimately prohibits universities from taking intentional steps to create a more racially diverse campus.

Justices push plaintiff to consider what happens if affirmative action is overturned — 10:45 a.m.

By Deirdre Fernandes, Globe Staff

Justices are pushing Students for Fair Admissions to consider what college campuses and society would look like if affirmative action is overturned.

A liberal justice suggests that there would be a precipitous decline in admissions for minorities. “These are pipelines to leadership in our society,” the justice said. “All those institutions aren’t going to be diverse either.”

Another justice asks what would be considered race neutral. Would giving a plus to an applicant who is a desendent of a slave be race neutral? Strawbridge says no. What about a plus for students whose parents were immigrants? Strawbridge seems more open to that being used as a factor.

But Strawbridge said that UNC Chapel Hill in particular can do better in using socio-economic preferences in their admissions process.

The Supreme Court’s divide emerges as Justices ask questions — 10:27 a.m.

By Mike Damiano, Globe Staff

After a brief opening statement, the plaintiff’s attorney, Patrick Strawbridge, is fielding questions from the Justices.

Greenfield: The first question, as is typical, comes from Justice Clarence Thomas, the Court’s most vociferous opponent of race conscious admissions.

Next, Strawbridge parried questions from liberal Justices who seem to favor race-conscious affirmative action. A key plank of Strawbridge’s argument is that racial preferences are always or almost always wrong.

Feingold: The plaintiff’s attorney is marshalling a standard “colorblind” talking point that conflates race-conscious remedies designed to remedy racial inequality with invidious racial classifications designed to exclude or subordinate.

Justice Ketanji Brown Jackson raised the point that race often correlates with other factors.

Somin: If race “correlates” to many other potentially relevant factors, that’s actually all the more reason why admissions processes should rely on those other things, directly, rather than use race as a crude proxy.

The plaintiffs seek a ban, but the Justices have other options — 10:15 a.m.

By Mike Damiano, Globe Staff

Question from Globe reporter Mike Damiano: Are there other options available to the Justices, besides the outright ban on affirmative action that the plaintiffs are seeking?

Somin: There are several other options, most notably 1) racial preferences for “diversity” are still permitted, but subject to much tougher...scrutiny, or 2) they are banned, but only under Title VI of the Civil Rights Act of 1964, not necessarily the Constitution. In that latter event, Congress can restore them at a later date, if it wants.

Justices dive right into questions — 10:10 a.m.

By Deirdre Fernandes, Globe Staff

After a less than five-minute presentation by Students for Fair Admissions arguing that affirmative action in college admissions should be overturned, the justices start peppering attorney Patrick Strawbridge with questions.

Judges on the liberal wing, Sotomayor, Jackson, and Kagan are pushing Strawbridge on how this would actually work: When race can impact education, with Black students more likely to be in under-resourced schools, how are admissions officers supposed to tease out those considerations if they can’t consider race? Why does having race as a factor harm the SFFA clients?

Read the statement from Harvard University’s president ahead of the arguments — 9:55 a.m.

By Mike Damiano, Globe Staff

Harvard University president Lawrence Bacow has forcefully defended affirmative action in admissions while the litigation against the schools has dragged on (the lawsuit was initially filed in 2014).

“Throughout my presidency,” he wrote in a statement Monday morning, “I have had opportunities to state the facts of the matter. I write now to share some personal reflections.”

“Whatever promise we hold as individuals—for ourselves and for our world—is not predicated on narrowly structured measures of academic distinction. When Harvard assembles a class of undergraduates, it matters that they come from different social, economic, geographical, racial, and ethnic backgrounds. It matters that they come to our campus with varied academic interests and skill sets. Research and lived experience teach us that each student’s learning experience is enriched by encountering classmates who grew up in different circumstances.”

Harvard will present its case before the Supreme Court during the second portion of this morning’s session, after the Court spends approximately 90 minutes on the UNC case.

Meet the experts who are joining us to provide real-time analysis — 9:45 a.m.

David Bernstein: A professor at the Antonin Scalia Law School at George Mason University and author of “Classified: The Untold Story of Racial Classification in America.”

Guy-Uriel Charles: A professor at Harvard Law School and director of the Charles Hamilton Institute for Race and Justice.

Jonathan Feingold: A professor at the Boston University School of Law whose research focuses on the relationship between race and law, as well as affirmative action.

Kent Greenfield: A constitutional law expert and professor at Boston College Law. He clerked for former Supreme Court Justice David Souter.

Ilya Somin: A constitutional law expert and professor at the Antonin Scalia Law School at George Mason University.

Julie Suk: A professor at Fordham University School of Law whose research focuses on equality at the intersection of law, history, sociology, and politics.

Natasha Warikoo: A sociologist at Tufts University and author of “Is Affirmative Action Fair?

Here are the key Supreme Court justices to watch today — 9:30 a.m.

By Mike Damiano, Globe Staff

The Supreme Court’s 6-3 conservative majority means the path to victory for the universities and their advocates is slim.

They will have to persuade two conservatives to join the liberals in upholding the legal precedents safeguarding affirmative action.

Here are the key justices to watch today:

Chief Justice John Roberts: Roberts is known as a staunch conservative, but also an institutionalist: he is more deferential to precedent than some of his colleagues and he worries over the Court’s legitimacy. In Dobbs, the decision that overturned Roe v. Wade, he tried to chart a more moderate path, but failed to bring another conservative to his side.

Some affirmative action advocates have placed their hope in Roberts’ more restrained approach. But he has long opposed racial preferences in the law. In a 2007 opinion, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Associate Justice Brett Kavanaugh: Damon Hewitt, the executive director of the Lawyers’ Committee for Civil Rights Under Law, which is advocating for UNC today, said that the best chance for his side to prevail is to win over Kavanaugh in addition to Roberts. Among the five conservative associate justices Kavanaugh has often been viewed as the most likely to side with Roberts and the Court’s three liberals.

Associate Justice Amy Coney Barrett: If not Kavanaugh, then Coney Barrett. At least that’s the thinking among affirmative action advocates hoping to cobble together a majority from a very conservative court.

Justices Samuel Alito and Clarence Thomas are the longest of long shots and Neil Gorsuch doesn’t offer much hope either.

Dozens of students protest outside Supreme Court ahead Monday morning — 9:00 a.m.

By Jim Puzzanghera, Globe Staff

By 8 a.m., two hours before oral arguments were set to start, dozens of students from Harvard, the University of North Carolina and other colleges were demonstrating outside the Supreme Court in support of affirmative action.

Chelsea Wang, 19, a Harvard sophomore, was among about 100 students who traveled to Washington, D.C., from Cambridge.

”I think it’s very very important for Asian Americans in particular to speak up in support of affirmative action because there is so much divisiveness in this case,” she said as other students fueled up on Krispy Kreme donuts and coffee.

Wang said the cases have pitted Asian American against other people of color.

She noted Monday is a busy day for classes. “But clearly, people felt like it was important to put aside their other responsibilities and come down to the court.”

A ban on affirmative action would largely affect more selective schools, like Ivies — 8:30 a.m.

By Mike Damiano, Globe Staff

A ban on affirmative action would largely affect schools that are more selective about admissions, such as the Ivies, liberal arts colleges, and competitive state schools, where large numbers of applicants vie for a relatively small number of seats.

Most US college students do not attend such schools, said Angel Pérez, chief executive of the National Association for College Admission Counseling. They attend institutions with high acceptance rates and simpler admissions criteria, such as minimum GPA requirements. “They’re not social engineering a class,” he said.

Those sorts of less selective schools, places like the University of Massachusetts Boston, would not be expected to experience a uniform decline in racial diversity, experts said.

Supreme Court to judge affirmative action in college admissions — 8:00 a.m.

By Mike Damiano, Globe Staff

For nearly half a century, colleges and universities have argued that affirmative action is crucial to their missions — and to American society. Campus diversity, they contend, is the path to a more tolerant and equitable union.

Now the practice — one of the most sustained efforts of the post-civil-rights era to improve racial equality — is under threat. On Monday, a newly constituted Supreme Court with a conservative supermajority will hear arguments in two cases challenging affirmative action. The likely outcome, experts said, is a nationwide ban.