Oral Arguments in Affirmative Action Cases

The United States Supreme Court heard oral arguments yesterday in the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina cases. Now, loyal readers of our college admissions blog know where we stand on the hot topic of Affirmative Action — we believe it a necessary practice to create an America grounded in equal opportunity under the law. That said, we fully understand that our nation’s highest court leans heavily conservative at the present moment and, while we hold out hope that Affirmative Action will pass constitutional muster, regrettably, we believe the high court will rule the practice unconstitutional. Indeed, the questions raised and opinions offered by some of the Supreme Court justices during yesterday’s oral arguments only further cemented the notion that the continued practice of Affirmative Action in college admissions is in grave jeopardy.

As Adam Liptak reports for The New York Times in a piece entitled “Highlights: Supreme Court Hears Affirmative Action Cases From Harvard and U.N.C.,” “Questioning from members of the court’s six-justice conservative majority was sharp and skeptical. ‘I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,’ Justice Clarence Thomas said. ‘It seems to mean everything for everyone.’ Justice Samuel A. Alito Jr. asked a similar question about the term ‘underrepresented minority.’ ‘What does that mean?’ he asked, adding that college admissions are ‘a zero-sum game’ in which granting advantages to one group necessarily disadvantages another…Justice Amy Coney Barrett asked whether it would be permissible for minority students to write essays describing their experiences with race discrimination.”

And while the high court’s three liberal justices did their very best to powerfully defend the necessity of the consideration of race in college admissions decision-making, the vote is likely going to come down to where Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Neil Gorsuch stand on the issue. And for those who stand on the side of Affirmative Action, well, it’s not looking good. As Liptak reports, “Several conservative justices said they doubted that universities would ever voluntarily stop taking account of race. ‘When does Harvard anticipate this will end?’ Justice Neil M. Gorsuch asked. Mr. [Seth] Waxman responded: ‘Harvard’s view about when doesn’t have a date on it.’…Justice Brett M. Kavanaugh said the cutoff was looming. ‘The current admissions cycle is for the class of ’27. It’s going to be too late to do anything about that cycle. The next is the class of ’28.'”

Heck, even Chief Justice John Roberts, long the custodian of the judiciary’s independence, seems to be leaning towards axing Affirmative Action. As Litvak reports, “He has long been critical of drawing distinctions based on race. His questions about race-neutral means of achieving diversity suggested that he might be pursuing a characteristically incremental path. That approach could limit the sweep of a decision rejecting race-conscious programs.”

Stay tuned for updates on these two monumental cases before the Supreme Court that have the power to shape the college admissions process for generations to come.