The Supreme Court Justices. Front row, left to right: Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts Jr., Samuel A. Alito Jr., and Elena Kagan. Back row, left to right: Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson. Because she was a Harvard Overseer, Associate Justice Jackson has recused herself from the Harvard case; it and the North Carolina case were argued separately, so she participated in the latter.
Credit: Fred Schilling, Collection of the Supreme Court of the United States
Editor’s note. The magazine asked lawyer and legal analyst and journalist Lincoln Caplan, a contributing editor, to report on the presentation of the Students for Fair Admissions litigation before the Supreme Court on October 31, including both the day’s oral arguments and the briefs filed earlier. Justice Ketanji Brown Jackson ’92, J.D. ’96, appearing in her first term, recused herself from the Harvard case in light of her recent past service on the Board of Overseers, but participated in the University of North Carolina case.
Affirmative action has been one of the most divisive issues in American law and politics for almost half a century. Almost five hours of searching, high-quality, sometimes cranky oral arguments at the Supreme Court Monday morning and afternoon, October 31, made clear why. They dealt with portentous cases about admissions policies at Harvard and the University of North Carolina (UNC)—Harvard, as a private institution that receives federal support, under Title VI of the Civil Rights Act of 1964, and UNC, as a public institution under the Constitution. (Prior Harvard Magazine news coverage of the cases, at the federal district and appeals courts, is linked to here.)
The dispute is whether the law requires colleges and universities to be blind to race as a factor in making admissions decisions, or allows them to be conscious of color, because of what Solicitor General Elizabeth Barchas Prelogar, J.D. ’08, told the Court is “a simple but profound truth: When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens, and better leaders.”
“Our Constitution Is Color-Blind”
At the heart of the challenge to the universities’ use of race in undergraduate admissions is the claim that “Our constitution is color-blind,” as a famous dissent by Justice John Marshall Harlan put it in 1896. The Court’s momentous 1954 ruling in Brown v. Board of Education, prohibiting segregation in public schools, turned that principle into national law, according to the claim. Patrick Strawbridge, a lawyer for Students for Fair Admissions (SFFA), which brought the lawsuits, argued, “this Court’s landmark decision in Brown finally and firmly rejected the view that racial classifications have any role to play in providing educational opportunities.” Fifteen years ago, to wide attention, Chief Justice John G. Roberts Jr. ’76, J.D. ’79, restated the claim like this: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
To examine a program where race is a factor, the Court uses a hard-to-meet standard of legal review called strict scrutiny. Under it, the only acceptable justification for the program is if it is narrowly tailored to serve a compelling government interest. According to SFFA’s claim, race-conscious admissions policies do not meet that test, even to make a student body more diverse racially and contribute to what students of different backgrounds can teach and learn from each other.
Facts in the Harvard case, the argument goes on, make the legal challenge to the College’s admissions practices even stronger. A black applicant in the fourth lowest of ten academic groups, for example, has a better chance of admission (12.8 percent) than an Asian American (12.7 percent) in the top group. A brief for SFFA says that Harvard “admits Asian Americans at lower rates than whites, even though Asian Americans receive higher academic scores, extracurricular scores, and alumni-interview scores.” Race is not just a plus factor for blacks and Hispanics, in that view: it’s a minus factor for Asian Americans—“an anvil on the scale that dominates the entire process.” Cameron T. Norris, who argued for SFFA against Harvard, told the Court, “What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful, but it’s a predictable result of letting universities use race in highly subjective processes.”