What to expect as the Supreme Court examines Harvard, UNC affirmative action policies

The U.S. Supreme Court will hear oral argument on Monday over a pair of cases that will decide whether colleges can use race as a factor for admissions. (Eric Lee/Bloomberg News)

The Supreme Court will hear oral arguments Monday in two cases centered on whether private or public colleges may consider race as a factor in college admissions. Here’s what you need to know to follow Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.

How to listen to oral argument

The Supreme Court announced in September that it would continue to allow live audio streaming of its arguments, a practice it began during pandemic-related restrictions in 2020. A feed is available starting at 10 a.m. on the homepage of the court’s website, supremecourt.gov and at washingtonpost.com.

The public is also allowed back in the courtroom for the new term that began Oct. 3, although securing a seat for oral argument is not easy. Lines often form hours before the court’s arguments begin or even a day in advance for significant cases like these.

Supreme Court will allow public at arguments, continue live audio

What is the format for the hearing?

Argument will begin at 10 a.m. with the case against the University of North Carolina, followed by the challenge to Harvard College. The justices have scheduled 90 minutes for the first argument and 70 for the second, but the discussion is likely to go overtime because the justices have changed their oral argument procedure since returning to the courtroom. Justice Clarence Thomas, the court’s most senior member, gets the first opportunity to ask a question, followed by a freewheeling session of questions. After that, Chief Justice John G. Roberts Jr. gives each justice a turn to ask additional questions.

Both cases were brought by the group Students for Fair Admissions, which is represented by two attorneys, Patrick Strawbridge and Cameron T. Norris. Both are former law clerks to Thomas and partners at a boutique law firm that represented former president Donald Trump in his battles with Congress.

Defending the position of the universities is North Carolina’s solicitor general Ryan Y. Park and attorney David G. Hinojosa on behalf of UNC students. Harvard is represented by attorney Seth P. Waxman, a former solicitor general during the Clinton administration. The Biden administration is also backing the universities and is represented in both cases by Solicitor General Elizabeth B. Prelogar, the federal government’s top advocate at the court and only the second woman confirmed to the position.

What are the key arguments for and against affirmative action and what does public polling show?

Since the 1970s, the Supreme Court has said that race may be used as one factor universities can consider in evaluating applicants for admission. Universities say there is a continuing need for affirmative action to build diverse student bodies, which they say strengthen the overall learning environment with distinct perspectives and experiences.

Look for lawyers representing Harvard and UNC to characterize as “holistic” the process the universities use to review applicants. If schools are not permitted to use race, these universities say, enrollment by minorities could decline dramatically.

Challengers want the court to overturn long-standing precedent and rule that considerations of race violate federal law and the Constitution. Edward Blum, president of the group behind the challenges, says the universities put too much weight on race and that the nation cannot remedy past discrimination with racial preferences, which he considers a different form of discrimination. In the Harvard case, Blum says the school’s policy discriminates against Asian Americans. UNC, the group said, discriminated against White and Asian American applicants. In each case, the universities denied wrongdoing and lower courts said their practices followed Supreme Court precedent.

A majority of Americans support a ban on race-conscious admissions policies, according to a recent Washington Post-Schar School poll, but an equally strong number back programs to boost racial diversity on college campuses.

Over 6 in 10 Americans favor leaving race out of college admissions, poll finds

What federal law and section of the Constitution is at issue?

In 2003 and again in 2016, the court upheld the limited use of race in admissions and said that the educational benefits of a diverse student body justify some intrusion on the Constitution’s guarantee of equal protection, which generally forbids the government from making decisions based on race.

But the makeup of the court has shifted to the right, with three Trump nominees solidifying a conservative 6-3 majority. There is disagreement among the justices about whether the equal protection clause of the 14th Amendment means the Constitution must be colorblind.

Challengers say that under the equal protection clause, government-run universities like UNC cannot use race as a factor in admissions’ decisions. The justices, who often prefer to rule narrowly, could avoid the broader constitutional question and instead find that Harvard and UNC violated Title VI of the Civil Rights Act of 1964. That statute prohibits racial discrimination, exclusion or denial of benefits under “any program or activity receiving Federal financial assistance.”

Harvard, a private institution, is subject to Title VI because it receives millions in federal grants and enrolls students who pay in part with federal financial aid. UNC, a public university, is covered by both the Constitution and Title VI, which incorporates equal protection standards after Title VI.

What have the justices said about race-conscious policies and why is Justice Jackson missing from the second argument?

The three Trump nominees — along with Justice Ketanji Brown Jackson, who was nominated by President Biden — do not have extensive records on cases involving racial preferences from their tenures as appeals court judges. Chief Justice John G. Roberts Jr. has long been skeptical of what he has called the “sordid business” of dividing Americans by race. Roberts, along with Alito and Thomas, dissented in 2016 when the court affirmed the use of race as one factor in reviewing college applicants.

Jackson, in contrast, made clear during an elections case this month that she has a different take on the history and noted that the “entire point” of the 14th Amendment “was to secure rights of the freed former slaves.”

We have more on what each justice has said posted here.

Jackson will participate in the UNC case but will not be on the bench for the second argument involving Harvard. During her confirmation hearing, Jackson said she would recuse herself because she served until May on the governing board of her alma mater, where one of her daughters is enrolled.

What happens after the arguments?

The justices will discuss the case in a private meeting, without law clerks or other staff, taking turns offering their impressions and then taking an initial vote. The most junior justice, now Jackson, is responsible for taking notes. When the chief justice is in the majority, he either assigns the writing of the opinion to himself or to another justice on the same side.

The court can publish its rulings at any time, but often does not finalize opinions in significant, high-stakes cases until the end of the term, typically in late June or early July.

More on race in education

The latest: The Supreme Court heard oral arguments Monday on the race-conscious admissions policies at Harvard University and UNC-Chapel Hill. Conservative Supreme Court justices seemed open to ending the use of affirmative action in admission decisions, repeatedly expressing doubt that the institutions would ever concede an “endpoint” in their use of race to build diverse student bodies.

What happens next? The court will rule on the legality of using race as a factor in college admissions. The court can publish its rulings at any time, but because of the significance of this case, the justices will likely wait to finalize their opinions until the end of the term in late June or early July.

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