5 Key Moments From Supreme Court Hearings On Affirmative Action

On Monday, the Supreme Court heard oral arguments in Students for Fair Admissions’ cases against Harvard and University of North Carolina, which will determine the future of affirmative action in American universities’ admissions processes. The five-hour-long hearing grew tense as Justices engaged in terse exchanges with lawyers on both sides.

Here are five key moments that defined Monday’s hearings:

Discrimination against Asian and Asian-American students was scrutinized.

The SFFA has alleged that Harvard and UNC have used race-conscious admissions policies in order to reduce the number of white and Asian or Asian-American students on their campuses. While both universities did not deny that race is a consideration, they emphasized that their admissions processes consider students’ applications holistically. They insisted that race does not receive more consideration than other factors and that the institutions are not engaging in racial balancing or aiming to fill quotas.

However, SFFA pointed to the consistently lower “personal” ratings that Harvard assigns to Asian students as evidence of racial bias. Justice Alito posed many questions about this particular point. In response, Harvard lawyer Seth P. Waxman claimed that the “personal” ratings are “a means of triage,” intended to further help admissions officers wade through over 61,000 applications by consolidating letters of recommendation and extracurricular involvement, among other things, into a quantifiable data point. In a tense moment, Waxman acknowledged that race can be the determining factor between students with the same test scores and grades, comparing the situation to the university’s decision to admit an oboe player rather than another musician—to which Chief Justice Roberts retorted: “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination.”

Harvard and UNC acknowledged fraught histories of racial injustice on campus.

Both Harvard and UNC acknowledged dark periods of racism, discrimination, and hate on their campuses, though these histories were invoked during the course of arguments in very different ways. David Hinojosa, a representative from the Lawyers’ Committee for Civil Rights Under Law, pointed to the University of North Carolina’s founding as an institution to educate the children of slave owners, its resistance to desegregation into the 1980s, the presence of confederate monuments and symbols on campus, and more recent demonstrations of white supremacy. This history, he argued, underscores the university’s need for affirmative action to create a more welcoming environment on campus and in the application process for students of color.

Meanwhile, Harvard’s history of discrimination against Jewish applicants in the early 20th century was cited by plaintiffs as an example of the dangers of race-conscious admissions policies. Gorsuch questioned whether the alleged discrimination against Asian applicants is analogous to this history of thinly veiled racial balancing. In response, Waxman expressed that the university is deeply ashamed of this period in its history, but noted that it was confined to one president and his unjust implementation of his own biases.

Questions swirled about the measurable academic benefits of diversity.

In the course of oral arguments, Justice Thomas reiterated questions regarding the measurable academic benefits of diversity in the classroom. In response, Hinojosa argued that diversity serves to reduce stereotyping on campus, while Elizabeth Prelogar, representing Harvard, similarly stated that eliminating “a sense of racial isolation and alienation has proven educational benefits in terms of encouraging greater participation by minority students in a classroom environment.” Many justices further inquired about the metric universities use to determine that their student bodies are sufficiently diverse. Defense lawyers stated that the racial diversity on campus should mirror that of the surrounding location and the country as a whole.

Both sides also invoked demographic data from the nine states that have instituted policies against race-conscious admissions. Lawyers for the SFFA claimed that the student bodies at many schools within those states have a diverse racial makeup consistent with their locations. Opposition counsel cited amicus briefs from University of Michigan and the University of California system claiming that the number of black students declined precipitously after eliminating race-conscious policies and that universities have not achieved the same numbers of racial minorities despite lengthy and expensive efforts to recruit students of color.

Plaintiffs claimed that affirmative action does not produce real diversity.

Lawyers for SFFA argued that while Harvard and UNC give the impression of diversity, their diversity is only surface-level. They claimed that Harvard’s student body is socioeconomically and ideologically homogeneous despite its racial makeup, and that diversity could be more adequately achieved by increasing consideration of an applicant’s family finances—a suggestion that was met with intense skepticism from liberal justices. Pointing to the plaintiff’s proposals for race-neutral ways of achieving diversity on campus, Justice Sotomayor contended: “one of [the proposals] assumes that UNC could admit the state’s 750 highest scoring, most socioeconomically disadvantaged high school students—that all of them would apply, that all of them would accept is about as unreasonable as you can get.”

The SSFA lawyers’ suggestions regarding socioeconomic diversity marked a shift in their line of argumentation, as they insisted throughout the day that diversity does not necessarily confer any meaningful academic benefits to students. Justice Kagan seized on this inconsistency, repeatedly asking whether the plaintiffs believed that diversity was valuable for students and society at large or not—a question which SFFA’s lawyer Patrick Strawbridge repeatedly evaded answering.

Justices asked about the universities’ plans to end race-conscious admissions.

The decisions in these cases have the potential to reverse Grutter v. Bollinger, the 2003 case in which the court ruled that the “narrowly tailored use of race in admissions” was constitutionally permissible. The Grutter decision was invoked throughout Monday’s oral arguments. Conservative justices pointed repeatedly to Sandra Day O’Connor’s majority opinion in Grutter, in which she writes: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” They argued that the Grutter decision presents affirmative action as a temporary tool to achieve greater equity and diversity in higher education rather than as a permanent practice to be upheld indefinitely. They pressed Harvard and UNC’s attorneys to disclose the universities’ plans to taper the use of affirmative action if it were upheld. Justice Barrett was particularly interested in pursuing this point, asking on numerous occasions about the universities’ projected timeline to end race-conscious admissions if the court were to uphold affirmative action.

Lawyers for Harvard and UNC emphasized that a definitive timetable for discontinuing race-conscious admissions is an impossibility, as every region, state, and university is different. The reasoning is consistent with O’Connor’s later statements on her own controversial timetable, which she seemed to reassess in the decade after her opinion was written, stating: “There’s no timetable. You just don’t know.”

The Court’s decision will not only impact colleges and universities but also K-12 schools, potentially reshaping the landscape of academic admissions in America. While arguments have concluded, many speculate that a decision will not be rendered until as late as June, when the Court reaches the end of the term, leaving schools and universities across the country to wonder what impact the decision may have on their admissions policies and campus culture.