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US Supreme Court’s conservatives signal skepticism of affirmative action in higher education

Activists rallied outside the Supreme Court as people lined up to watch the oral arguments in the affirmative action cases.Shuran Huang/New York Times

On Monday the Supreme Court heard arguments in two landmark cases that could end affirmative action in higher education, and the court’s conservatives seemed to signal that they are prepared to take that step, overturning more than four decades of precedents established by both liberal and conservative justices.

In a nearly five-hour hearing, the court’s conservative justices peppered lawyers for Harvard University, the University of North Carolina-Chapel Hill, and the US Department of Justice with questions about the legality — and desirability — of the continued use of race-conscious admissions in higher education.

The cases — which began as lawsuits challenging Harvard’s and UNC-Chapel Hill’s admissions policies — represent the latest opportunity for a newly constituted Supreme Court to delve into a hotly debated issue and dispense with longstanding precedents.

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In June, the court’s 6-3 conservative majority overruled Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion and other precedents. That decision, in Dobbs v. Jackson Women’s Health Organization, marked the achievement of a longstanding goal of conservative judicial activists.

Prohibiting the consideration of race in college admissions would effectively ban affirmative action in higher-education admissions nationwide.

On Monday, the questions came from multiple angles. Justice Clarence Thomas scrutinized the purported benefits of campus diversity — one of the principal rationales for affirmative action — and questioned whether “diversity” was a coherent concept.

“I’ve heard the word ‘diversity’ quite a few times,” he said, “and I don’t have a clue what it means. It seems to mean everything for everyone.”

Justice Neal Gorsuch pointedly asked US Solicitor General Elizabeth Prelogar — who represented the Biden administration, which sided with Harvard and UNC — if race-conscious affirmative action policies violated the 1964 Civil Rights Act’s prohibition against “discrimination on the basis of race.”

Justice Samuel Alito grilled Harvard’s lawyer, former solicitor general Seth Waxman, over allegations in the initial lawsuit that the school’s race-conscious admissions policies harm Asian Americans.

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The arguments did not seem to favor the schools.

“In a word, it went badly for [the affirmative action advocates],” said Ilya Somin, a constitutional law expert and professor at the Antonin Scalia Law School at George Mason University. “As expected, the majority seems highly likely to rule against both Harvard and UNC.”

The lawsuits now before the Supreme Court were brought by Students for Fair Admissions, a nonprofit founded by conservative judicial activist Edward Blum. The suits alleged that Harvard and UNC-Chapel Hill discriminated against Asian American applicants in Harvard’s case, and Asian American and white applicants in UNC’s.

The schools have strenuously denied the allegations, and lower courts ruled in their favor. But SFFA appealed to the Supreme Court, which, legal experts said, was probably the goal from the beginning.

Blum, who spearheaded the lawsuits, has previously designed cases as vehicles to reach the Supreme Court.

One case he backed, Shelby County v. Holder, led to a Supreme Court ruling that struck down some of the key provisions of the Voting Rights Act of 1965.

“I have for about 30 years found that the goal of the civil rights movement was the principle that a student or an individual should not be harmed nor helped by their race or ethnicity, and that is a guiding principle of what I believe in,” Blum said in an interview.

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Affirmative action supporters have scoffed at what they view as Blum’s appropriation of civil rights values and especially his appeal to civil rights law (SFFA contends that Harvard’s and UNC-Chapel Hill’s policies violate the 1964 Civil Rights Act).

“If we want to know who is on the side of civil rights, we might ask where Martin Luther King Jr. would fall on this case,” said Jonathan Feingold, a professor at Boston University School of Law. “It’s hard to imagine he would side with the constellation of right-wing think tanks, donors, and special interests that now target affirmative action and other pillars of multiracial democracy.”

UNC-Chapel Hill is subject to both the 1964 Civil Rights Act and the 14th amendment’s equal protection clause because it is a public institution. Harvard is only subject to the Civil Rights Act, since it is a private university.

Harvard, like many other selective colleges and universities, has argued that adequate levels of diversity cannot be achieved without race-conscious admissions policies. In the SFFA litigation, Harvard said without considering race in admissions, the number of Black and Hispanic undergraduates on campus would fall by 1,000 within four years (Harvard’s undergraduate student body numbers around 7,000).

In a statement Monday, Harvard president Lawrence Bacow defended the school’s “holistic” admissions practices that consider race as one of many factors.

“When Harvard assembles a class of undergraduates,” he said, “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.”

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On Sunday, UNC-Chapel Hill chancellor Kevin Guskiewicz, said that removing “race as one of the many factors we consider in admission decisions” would leave students less prepared for post-graduation life.

“Our students are preparing to enter diverse workforces, and if they do not have experience on group projects, or in their dorm rooms, with people who have different perspectives and life experiences, they will fall short of their potential,” he said.

The court’s three liberal justices defended affirmative action in Monday’s hearing, questioning whether students would be disadvantaged because they could not discuss how their racial experiences affected their lives.

Justice Ketanji Brown Jackson offered a scenario in which two students applied to UNC-Chapel Hill, which was open only to whites until 1955.

One hypothetical applicant writes an admissions essay describing how his family has attended UNC for generations and saying he would like to attend the school to honor his family’s legacy. The other writes that his family has lived in the area for generations, but his ancestors were slaves and he would like to honor their legacy by attending UNC, something they were never able to do.

“The first applicant would be able to have his family background considered and valued,” Brown Jackson said to a lawyer for SFFA, “while the second one wouldn’t be able to because his story is, in many ways, bound up with his race and the race of his ancestors.”

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Brown Jackson is recused from the Harvard case due to her previous role as a member of Harvard’s Board of Overseers. Her absence from casting a vote in the Harvard case is not expected to change the outcome.

If the conservative justices rule against the schools, as legal experts expect, they could ban affirmative action in higher-education admissions outright or take a narrower approach.

“They could rule that diversity-based preferences are just subject to much tighter judicial scrutiny,” Somin said.

Somin emphasized that both outcomes, as well as several other plausible options, were possible. But if he had to place a bet, he said, his money would be on a ban.

An opinion in the cases is expected next summer.

Jim Puzzanghera and Deirdre Fernandes of the Globe staff contributed to this report.


Mike Damiano can be reached at mike.damiano@globe.com.