The Legal Intelligencer - Most Diverse High Court in US History Considers Role of Race in College Admissions


A pair of cases currently before The U.S. Supreme Court will affect the consideration of race in college admissions programs for the foreseeable future.

In Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, US Supreme Court, No. 21-707, the most diverse Supreme Court in American history tackles nuanced issues of equal protection and race under the Fourteenth Amendment. A decision is expected in June 2023.

While many commentators characterize the issue as one of affirmative action, the programs in question at UNC and Harvard never relied solely on race as admission criteria. Instead, both universities used a “holistic” approach to evaluating candidates for admission, with race being one piece of information that was collected and could be considered. Students for Fair Admissions argued that race should not even be part of the equation and that state colleges with purely holistic programs were achieving educational diversity without any consideration of race at all.

The current diverse makeup of the Supreme Court justices was highlighted in the questioning of the justices during the oral argument on the case. The ethnically diverse justices took the lead. Justice Clarence Thomas is a well-known opponent of affirmative action programs and recent decisions by the Supreme Court that allow the use of race as a factor in college admissions. Thomas’ views are in stark contrast with those of the two other justices of color—Justices Sonia Sotomayor and Ketanji Brown Jackson.

The questioning by the justices of counsel at oral argument on the case in October 2022 was clearly divided between the more conservative justices and those with more liberal ideologies, not by the color of their skin. The more conservative justices focused on precedential decisions concerning affirmative action in college admissions, particularly language from prior cases reflecting the court’s preference for a phase-out of considerations of race. The more liberal justices focused on standing issues, questioning whether the members of Students for Fair Admissions had suffered any cognizable injury.

Thomas Continues His Opposition to Considerations of Race in College of Admissions

In their suits against Harvard and UNC, Students for Fair Admissions argued that the school’s race-conscious admissions process violated the constitutional guarantee of equal protection and discriminated against high-achieving Asian American students in favor of traditionally underrepresented Black and Hispanic people. The parties agreed that UNC and Harvard collected information concerning the racial makeup of the admitted candidates and that the universities had implemented goals aimed at increasing attendance by underrepresented groups.

Thomas has urged in the past that all racial classifications—regardless of their perceived benefit in remedying inequality—are harmful because they stigmatize minorities. Race-conscious admissions policies, he wrote in his dissent in Grutter v. Bollinger, 539 U.S. 306 (2003), “stamp minorities with a badge of inferiority.”

In addition, Thomas argued that university administrators lack a pressing or compelling reason to divide Americans into racial classes since African Americans can and will succeed without this help, stating, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.”

In October 2022, in oral arguments in the Students for Fair Admissions case, he stated, “I’m really interested in a simple thing: What benefits academically are there to your definition or the diversity that you’re asserting?” He seemed to reject counsel’s argument that diversity on campus led to a more engaged and open-minded student body and wanted to focus specifically on the academic benefits the university pursued by making race one of the admission considerations.

Thomas, Justice Brett Kavanaugh, and even Chief Justice John Roberts also questioned UNC counsel regarding whether the university ever intended to stop making race a consideration in admission evaluations. The court pointed to language in Grutter indicating that 25 years should be long enough to phase out racial considerations. Interestingly, the incoming class of freshmen for fall 2024 will be graduating 25 years after the Grutter decision.

Sotomayor and Jackson Bring Their Unique Perspective to the Bench

Sotomayor’s line of questioning during oral arguments in Students for Fair Admissions showcased her strong commitment to racial equality and her empathy for underrepresented groups. For example, she pointed out that the 39th Congress that wrote the Fourteenth Amendment invested “a lot of money in trying to get Black children, whether they were children of slaves or free slaves … educated in integrated schools.” She emphasized in her questions that race is only one factor and was never a quota in either the UNC or Harvard admissions policies. Sotomayor also has said that she is the “product of affirmative action.”

Jackson took office in June 2022, and the Harvard and UNC cases were her first opportunity to consider the constitutionality of race as a consideration in state-funded college admissions. Her line of questioning during oral arguments suggests she also believes that race-based efforts to obtain diversity are constitutional. Jackson questioned whether members of Students for Fair Admissions endured actual harm from an admissions process in which race was one of 40 factors that were considered. Other factors include demonstrated leadership skills, grade point average and resilience.

Potential Effects of the Decision in Students for Fair Admissions

A majority of Americans recognize that racism is a big problem. A 2020 Monmouth University poll found that 76% of Americans surveyed called racism a big problem, up 25% from just five years previously.

However, a majority of Americans also think that affirmative action is problematic. A 2022 Pew Research poll found that 73% responded that race or ethnicity should not be considered when making decisions about student admissions.

As discussed during the oral argument in Students for Fair Housing, even if the court requires state-funded universities to eliminate racial considerations in admissions, race-neutral considerations based on experiences and other criteria will still be used to achieve a diverse student body.

For example, in 1998, Texas law allowed students who graduate in the top 10% of their high school class to automatically gain admission to state universities. This plan enhanced student diversity because students in poor and ethnically diverse districts could gain admission to public universities without admissions evaluations at all.

Further, when California moved to race-neutral holistic admissions criteria, minority enrollment in state universities initially plummeted dramatically. But in recent years, the California university system increased minority enrollment by relying on socioeconomic factors, location and recruitment.

These issues require attention from all facets of the community to support diversity in higher education. Alumni, faculty, donors, employers, and students all need to work together to ensure that racial diversity exists on campus, along with all other segments of societal viewpoints, like gender, socioeconomics, geography, ethnicity, sexual orientation, religion, culture and myriad other aspects of human nature.

Reprinted with permission from the March 9, 2023 issue of The Legal Intelligencer. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.