SCOTUS Hears Oral Arguments in Landmark Affirmative Action Cases

Today, the U.S. Supreme Court heard oral arguments in Students for Fair Admissions v. University of North Carolina ("the UNC case") and Students for Fair Admissions Inc. v. President & Fellows of Harvard College ("the Harvard case"), which, together, are expected to overturn Grutter v. Bollinger and hold that the use of affirmative action policies in college admissions is unconstitutional.

John Daukas, a former Trump Department of Justice appointee, explained for National Review:

The Court has ruled that institutions cannot use racial preferences to remedy historic societal discrimination, “create a level playing field,” or racially balance student bodies. The only way colleges may use race in admissions is to promote “diversity” — having students of different races on campus to provide manifold views. Thus, in Grutter, the Court held race can be used to promote “diversity” provided race is only one factor in a “holistic, multi-factor” evaluation, is time-limited, and does not involve quotas or racial balancing.

However, our institutions are flouting the standards articulated by Grutter, and race has become the determinative factor for thousands of college applicants each year. There is no such thing as a benign form of racial discrimination: However implemented, it hurts students denied admission due to race. Universities mouth Grutter’s terms — “holistic,” “multi-factor,” “diversity” — and use them for cover as they engage in illegal discrimination.

The UNC case considers the constitutionality of affirmative action policies implemented by public universities, whereas the Harvard case considers the constitutionality of action policies implemented by private universities.

One of the most fiery exchanges of the day was between North Carolina Solicitor General Ryan Park and Justice Clarence Thomas, a vocal critic of affirmative action:

During arguments involving admissions policies at the University of North Carolina (UNC), Thomas asked state Solicitor General Ryan Park to describe the educational benefit to including race as a factor in college admissions. Park responded that in studies involving stock trading results, "racially diverse groups of people … perform at a higher level."

"The mechanism there is that it reduces groupthink and that people have longer and more sustained disagreement, and that leads to a more efficient outcome," Park said.

Thomas responded, "I guess I don't put much stock in that because I've heard similar arguments in favor of segregation, too."

"I've heard the word diversity quite a few times, and I don't have a clue what it means. It seems to mean everything for everyone," Thomas also stated during his line of questioning.

Beyond these cases being two of the most closely watched for the 2022-2023 session, the Harvard case has received special attention because Justice Ketanji Brown Jackson served on Harvard's Board of Overseers for six terms prior to her confirmation to the Supreme Court. Justice Jackson vowed to recuse herself from the Harvard case which was originally consolidated with the UNC case. However, Justice Jackson essentially "un-recused" herself, when the cases were separated.

The takeaway from many pundits is that it is plainly clear that the policies discussed today are unconstitutional.

And even supporters of affirmative action are uncomfortable with some of the policies at issue in the case.

The full transcript of the UNC case's oral arguments can be read here.

The full transcript of the Harvard case's oral arguments can be read here.