The court has upheld the use of race-conscious college admissions in the past, but has moved to the right in the years since.
Conservative US Supreme Court justices signalled scepticism on Monday towards the legality of race-conscious admissions policies in cases involving Harvard University and the University of North Carolina (UNC) that could imperil affirmative action programmes often used to boost enrollment of Black and Hispanic students.
The court was hearing tense arguments from a group founded by anti-affirmative action activist Edward Blum in appeals of lower court rulings upholding programmes used at the two prestigious schools to foster student diversity. The justices heard the UNC case first.
The court’s 6-3 conservative majority made clear its sympathy toward the challengers, while the liberal justices indicated support for the schools. Rulings are due by the end of June.
Affirmative action is a practice used by some United States universities that consider race as one of numerous factors in admissions to increase diversity and account for the history of discrimination in the US.
Justice Clarence Thomas – the court’s second Black justice, who has a long record of opposition to affirmative action programmes – noted he didn’t go to racially diverse schools. “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” the conservative justice said at one point. At another, he challenged defenders: “Tell me what the educational benefits are.”
Justice Amy Coney Barrett, another conservative, pointed to one of the court’s previous affirmative action cases and said it anticipated a halt to its use in declaring that it was “dangerous” and had to have an end point. When, she asked, is that end point?
The court takes up the contentious issue at a time of ongoing discussions over the legacy of racism in the US, and just several months after its landmark decision to overturn Roe v Wade, a 1973 case that had established the federal right to abortion in the US.
The court began its new session this month with public confidence in the nation’s highest judicial body at an all-time low, according to a Gallup survey conducted in September.
While race-conscious admissions remain a polarising topic in the US, it is not the first time the issue has made its way to the country’s highest judicial body: the Supreme Court has upheld the legality of affirmative action twice in the past two decades, most recently in a 2016 case.
In the years since, however, the court has moved further to the right with the addition of three new conservative justices appointed by former US President Donald Trump, which has cemented a conservative majority.
Lower courts upheld the programmes at both UNC and Harvard, rejecting claims that the schools discriminated against white and Asian-American applicants.
The cases are brought by conservative activist Edward Blum, who also was behind an earlier affirmative action challenge against the University of Texas as well as the case that led the court in 2013 to end the use of a key provision of the landmark Voting Rights Act.
Blum formed Students for Fair Admissions, which filed the lawsuits against both schools in 2014.
While anti-affirmative action groups have argued that admissions should be colour-blind, advocates have countered that the legacy of racism in US institutions, including higher education, complicates that argument.
Civil liberties organisations such as the ACLU, which filed an amicus brief for the case, have pointed out that discrimination against minority applicants was common at universities across the country for decades, depriving such applicants of equal access to institutions of higher education.
Universities have also argued that race is never a sole consideration for admission but rather one of numerous factors meant to create a more holistic admissions process, a point mirrored by some of the court’s liberal justices on Monday.
“You keep saying that you object to the use of race standing alone” in deciding which applicants to admit, Justice Ketanji Brown Jackson told Patrick Strawbridge, the lawyer for the challengers in the UNC case.
“But as I read the record and understand their process, it’s never standing alone. It’s in the context of all of the other factors. There are 40 factors about all sorts of things that the admissions office is looking at. And you haven’t demonstrated or shown one situation in which all they look at is race.”