The Supreme Court heard nearly five hours of oral arguments yesterday in two cases brought by Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina (UNC) seeking to overturn some four decades of precedent allowing the consideration of race in college admissions.
The group is specifically asking the high court to overturn its ruling in Grutter v. Bollinger, the landmark 2003 decision that said colleges can use race as part of a holistic review of admissions applications if it is narrowly tailored. Over the decades, several cases have made their way to the Supreme Court establishing and refining this precedent, most recently in the second hearing in 2016 of a
case involving the University of Texas at Austin.
In the current cases, Harvard and UNC both won in federal trial courts, and the decision in Harvard's favor was upheld by a federal appeals court. The UNC case was accepted for direct review by the Supreme Court.
While the consensus in the media on yesterday's hearing was that the majority of justices appeared skeptical of the practice, ACE's Peter McDonough believes it could survive in some meaningful form.
“Without doubt, the court is going to be telling schools something significant probably in June of 2023," McDonough told Politico Morning Education. “I'm really optimistic that what the court's not going to be saying is that an applicant who really wants to have their race or ethnicity be part of their story can't do that."
The justice's questions to SFFA lawyer Patrick Strawbridge Monday morning zeroed right in on whether the group was asking the court to decree that an applicant cannot reveal their race or ethnicity in the context of trying to explain who they are as a person.
In an interview with
Inside Higher Ed, McDonough said he was encouraged by the discussion about whether someone can earn admission in part through stories informed by their race or ethnicity, including discrimination they may have experienced. Lawyers on all sides conceded they should be able to do so, although not solely on that basis. “It's very difficult to unbundle" those stories from someone's race or ethnicity, McDonough said.
Embedding race as impactful to an applicant's description of themselves isn't far removed from considering the applicant's race as one factor among many that are taken into account when an admissions process engages in a holistic review. Race and ethnicity often influence lived experiences and sense of self, and not taking that into account certainly doesn't level the playing field. On the contrary: It is unfair.
ACE and 38 other higher education associations submitted an amicus brief in support of Harvard and UNC, making the argument that the justices should honor decades of precedent and recognize the continuing value of the limited consideration of race and ethnicity as part of the college admissions process. The brief noted that three-quarters of Black adults report that their racial identity is extremely (52 percent) or very (22 percent) important to how they think about themselves, making them more likely than any other racial group to see their race or ethnicity as “central to their identity."
The brief also focused on the rights the First Amendment grants to applicants to colleges and universities, and the freedoms it accords to those institutions. [Read more about the brief on the ACE website and in this piece in The Washington Post.]
The New York Times reported that “Chief Justice John G. Roberts Jr., who views himself as the custodian of the court's independence and authority, may have conflicting impulses in the cases argued Monday. 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."
The Times also reported that two general themes ran through questions from the court's conservatives: that educational diversity can be achieved without directly taking account of race and that there must come a time when colleges and universities stop making such distinctions.
McDonough told
Diverse: Issues In Higher Education that he believes the focus on being able to refer to race or ethnicity as a component of an applicant's sense of self is a good signal.
“I thought the argument was a hopeful sign of the challenge of decreeing that blinders have to be put on admissions officers relating to race in a context in which their job is to look at what informs the nature of the applicant that they're considering," he said.
There is no set time when the decision will be issued, but generally in cases this important and visible, a ruling is expected near the end of the Supreme Court's term. That could mean late June 2023.