(WASHINGTON) — The Supreme Court on Monday will revisit the question of affirmative action in higher education.
Justices are hearing oral arguments in two major cases challenging race-conscious admissions programs at Harvard University and University of North Carolina. It’s the first test for affirmative action before the current court, which has a six-justice conservative majority and three justices of color, including the first-ever Black woman justice, Ketanji Brown Jackson.
The court’s decision, due out next year, could end the policy that’s shaped the college admissions process for the past half-century.
Please check back for updates. All times Eastern:
Oct 31, 1:11 PM EDT
Arguments conclude in UNC case after nearly three hours
The Supreme Court participated in an extraordinary and historic debate on Monday morning during arguments on affirmative action.
The court’s conservative majority has made clear that it is poised to sharply curtail the use of race in college admissions at public universities, suggesting the court’s precedents always envisioned a time limit on the practice, casting doubt on the educational benefits, and seeing a danger in disadvantaging some students simply because of the color of their skin.
The court’s liberals have mounted a vigorous, if at times uncoordinated, defense of the law, with Justice Ketanji Brown Jackson repeatedly questioning the harm in a school considering race as a “plus” factor in a holistic assessment of a student and worrying aloud about a reverse equal protection violation in telling minorities that their race cannot matter.
The justices will next hear the case challenging the race-conscious admissions policy at Harvard University.
Oct 31, 1:07 PM EDT
’What would an originalist think about this?’
Justice Elena Kagan posed this question to Solicitor General Elizabeth Prelogar seeking to pique the interest of her conservative colleagues and adherents to the philosophy of constitutional interpretation.
Prelogar replied that at the time of enactment of the 14th Amendment “there were federal and state laws that premised on bringing African Americans into full equality.”
Justice Amy Coney Barrett, a self-avowed originalist, later conceded the point but suggested their purpose was limited.
“I entirely agree with you that it’s not always illegal to take race-conscious remedial measures,” Barrett said. “It’s not accurate to say, when you look at the original evidence, that it was always colorblind… So the question is under what circumstances have those remedial measures been permitted?”
“Petitioner has not been able to point to any history that racial classifications were automatically and invariably unconstitutional,” Prelogar said later.
Oct 31, 12:33 PM EDT
Biden admin defends affirmative action as ‘national security imperative’
Biden administration Solicitor General Elizabeth Prelogar took the podium two hours into the first case to defend affirmative action as a “national security imperative.”
Prelogar argued that race-conscious admissions policies at the nation’s service academies are “critically important” to building a diverse officer corps.
“At present it’s not possible to achieve that without race conscious admissions, including at the nation’s service academies,” she said.
Under questioning by Justice Clarence Thomas, Prelogar also offered a vigorous defense of the educational benefits of diversity in a campus setting.
“Cross-racial understanding, challenging stereotypes and assumptions … reducing a sense of racial isolation and alienation, encouraging greater participation by minority students in the classroom environment,” she said. “It is necessary to have our leadership broadly reflect the diversity of our country.”
Justice Elena Kagan asked Prelogar why the government can’t achieve those benefits by race-neutral means.
“We are trying to bolster outreach efforts…[and] looked into other alternatives,” Prelogar said, including greater preference for socio-economic background factors, “but that would increase the number of white men.”
Oct 31, 12:24 PM EDT
Jackson sees a reverse equal protection problem in banning race from admissions
Justice Ketanji Brown Jackson, the court’s first Black woman member, has repeatedly voiced concern about the impact a race-blind admissions mandate could have on young people nationwide.
“Is there a risk of treating people differently by not allowing some applicants to talk about that aspect of their identity?” she said. “I’m worried it creates an inequity in the system.”
Jackson posited that it could put students of color at a disadvantage — in potential violation of the 14th Amendment’s Equal Protection Clause — by telling schools that they cannot consider race but can consider a host of other factors.
“We are very concerned with that issue,” said North Carolina Solicitor General Park, who is arguing on behalf of UNC.
Oct 31, 12:06 PM EDT
Justices spar over racial ‘check box’ on applications
Justice Samuel Alito took aim at the value of a racial “check box” on college application forms, asking Park to address the plaintiffs’ claim that it says nothing about the student.
“We think that’s just not true,” Park responded.
Alito then questioned how UNC could fairly evaluate the racial makeup of an applicant based on a “check box.”
Justice Sonia Sotomayor jumped in to push back on Alito’s suggestion of potential for unfair or unreasonable advantage.
“Do you get an automatic plus for checking a box?” Sotomayor put to Park, to which he responded, “No.”
“That’s the whole point, right?” Sotomayor said, “that checking a box doesn’t get you a point” in favor of admission.
Oct 31, 11:49 AM EDT
Conservatives press: ‘When does it end?’
The court’s conservative justices have been bombarding North Carolina’s Solicitor General Ryan Park with questions about time-limits on the use of race in admissions, which the court’s 2003 decision in Grutter v. Bollinger seemed to embrace.
In that decision, Justice Sandra Day O’Connor famously predicted in her opinion upholding affirmative action that the use of race in admissions would no longer be necessary 25 years later.
“What is your goal and how would a court be able to determine when your goal has been reached?” Justice Samuel Alito pressed.
“Our goal is to achieve the educational benefits of diversity,” Park responded, adding: “I understand that’s a qualitative metric.”
Justice Amy Coney Barrett then jumped in, asking Park: “When does it end? When is your sunset? When will you know … Grutter says this is dangerous and has to have an end point and I hear you telling Justice Alito it doesn’t have an end point.”
“We enthusiastically embrace an end point requirement,” Park replied, adding that the university continues to look at and adopt race-neutral alternatives.
Oct 31, 11:27 AM EDT
Justice Thomas asks UNC for definition of diversity
Justice Clarence Thomas, questioning North Carolina Solicitor General Ryan Park, kicked off questioning by asking for a specific definition of diversity and explanation of what the educational benefits are.
“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.”
“We value diversity of all different kinds and all the ways people differ in our society,” Park responded. “On the benefits, it’s not disputed here that there are benefits of all kinds … Racially diverse and diversity of all kinds leads to a deeper and richer learning environment.”
When asked by Thomas to state specific educational benefits, Park cited studies saying that racially diverse stock traders make better trades because it reduces group think.
“I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation, too,” Thomas replied.
Thomas, whose ruled and written on affirmative action in the past, is an opponent of the policy.
Oct 31, 10:59 AM EDT
Conservative justices raise race-neutral alternatives
The conservative justices are exploring the idea of race-neutral alternatives to achieving diversity on college campuses.
Chief Justice Roberts is leaning into the notion that if racial “check boxes” were eliminated, students could still raise race in the essay process.
Justice Brett Kavanaugh pressed Strawbridge for clarity on what “race-neutral” means and what standard the court might set.
“What qualifies as race neutral in the first place,” he said. “What if a school says a plus factor for descendants of slaves? Is that race neutral or not? … We have to think forward about what happens if you prevail in this case.”
Strawbridge replied: “If that’s the only basis, then that may be a pure proxy for race,” and impermissible.
Kavanaugh then asked about a school giving a plus factor to students of immigrants to this country, which Strawbridge said “might be permissible in the general sense.”
Oct 31, 10:37 AM EDT
Justice Jackson questions plaintiff’s standing
Justice Ketanji Brown Jackson, the court’s newest member, is questioning whether members of Students for Fair Admissions have standing to challenge the universities.
“I’ve been struggling to understand how race is actually factoring into the admissions process here and whether there’s actually any redressable injury that arises?” Jackson asked. “How exactly UNC’s system works with race and how your members are harmed by that?”
“Why is it that race is doing anything different to your members’ ability to compete in this environment?” she continued. “They can get points for diversity, even, in this environment. So, why does using race as a factor harm your members in a redressable way?”
Strawbridge insisted that white students are at a disadvantage when applying to UNC because they cannot get a “plus” point based on their race.
“It does not give racial preferences to white applicants,” Strawbridge said.
“Any consideration or race will give rise to injury … You’re being denied the opportunity to compete on a fair playing field,” he added.
Oct 31, 10:27 AM EDT
Liberal justices press for facts on harm: How can you prove race is determinative?
The court’s three liberal justices are challenging Patrick Strawbridge, arguing the case for Students for Fair Admissions, to articulate the harm from schools using race as one factor in a holistic review, consistent with Supreme Court precedent on affirmative action.
“You’re considering race is the only factor that gets someone in at a school,” Justice Sonia Sotomayor pressed.
Strawbridge replied that “logic” suggests that if race is accounted for, only some people are going to get in.
Justice Ketanji Brown Jackson interjected, asking for “the facts that some people aren’t going to get in?”
Strawbridge replied that experts estimate 1-2% of applicants to University of North Carolina are affected by racial considerations. He said that translates to 700 applications.
“How can you ever prove that it’s ever a determinative factor?” Justice Sotomayor pressed.
Oct 31, 10:13 AM EDT
Arguments are underway
Chief Justice John Roberts introduced the case at 10:04 a.m. and arguments are underway in Students for Fair Admissions, Inc. v. University of North Carolina.
Patrick Strawbridge, arguing for SFFA, opened by telling the justices “racial classifications are wrong.”
He invoked the landmark decision in Brown v. Board of Education to mean “racial classifications don’t have a place” in education. Strawbridge said flatly the court should overrule 40 years of affirmative action precedent inconsistent with Brown and “egregiously wrong.”
It “contradicts the Constitution’s guarantee of equal treatment,” he said.
Oct 31, 10:04 AM EDT
Trump attorneys will make case against affirmative action
Two attorneys who have represented former President Donald Trump will make the case against affirmative action at the Supreme Court.
Patrick Strawbridge will argue on behalf of Students for Fair Admissions in the University on North Carolina case. Strawbridge has represented Trump in Jan. 6 matters, challenges to 2020 election results in key states and in a bid to shield his tax returns from House investigators.
Cameron T. Norris, who has also represented Trump, will represent Students for Fair Admissions in the Harvard case.
Both men are partners at Consovoy McCarthy PLLC — and both are former clerks to Supreme Court Justice Clarence Thomas.
North Carolina Solicitor General Ryan Park is representing the University of North Carolina during the arguments. Former U.S. Solicitor General Seth Waxman from the Clinton Administration, and a Harvard alumnus, is defending the university in the second case.
– ABC News’ Devin Dwyer
Oct 31, 9:48 AM EDT
What to know about the cases
The justices on Monday will hear two major cases, the first starting at 10 a.m. regarding affirmative action at the University of North Carolina. The second case of the day will be about the policy at Harvard University.
Students for Fair Admissions, a group of students and parents led by conservative activist Edward Blum, has led the opposition to race-conscious admissions policies.
The organization sued the schools in 2014, alleging illegal racial discrimination against Asian American applicants during the admissions process. The schools have countered that court precedent makes clear that the consideration of race is allowed to address inequality.
A federal district court rejected SFFA’s claims, as did an appeals court. Now, the Supreme Court is being asked to weigh in on 40 years of precedent.
More information about the cases can be found here.
Oct 31, 9:33 AM EDT
College students share their views on affirmative action
Ahead of the oral arguments at the Supreme Court on Monday, ABC News spoke with college students from public and private colleges on what they think about the decades-old admissions policy.
Some students said the race-conscious policy was meaningful and important. One junior at Harvard University, one of the schools where affirmative action is being challenged, said: “We can’t just look at singular, individual numbers to determine who is most qualified or who should belong. We have to look at what adversity that they faced, what opportunities they have, how did they use those? Taking race into account is very important to ensure that we have a fair representation of people.”
Another student from Fordham University believed not including race on in the admissions process would provide a “more holistic review” of the applicant.
“You kind of get to see the student academically, what they really are,” they said. “You read a personal statement, you see their SAT scores. I think that in itself should say more about the student than the race.”
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