(CNN) The conservative Supreme Court will meet Monday to consider whether colleges and universities can continue to take race into consideration as a factor in admissions, a case that could diminish the number of Black and Hispanic students in higher education.
Hanging in the balance is the future of admissions plans at hundreds of schools that have relied on court precedent for decades in order to achieve the educational benefits they say flow from student body diversity on campus.
Challengers in the case are targeting Harvard and the University of North Carolina arguing that their programs violate equal protection principles, dash the promise of a colorblind society, and discriminate against Asian Americans. They are urging the court to overturn precedent and they say that the schools should explore and further develop race-neutral alternatives to achieve diversity.
At least nine states have already chosen to end consideration of race in university admissions, including Arizona, California, Florida, Idaho, Michigan, Nebraska, Oklahoma and Washington, according to the National Conference of State Legislatures. Supreme Court precedent allows the consideration of race, but the court's new composition of conservative justices did not hesitate last term to overturn decades old precedent in a case that curtailed a federal right to abortion.
A Washington Post poll found that 63% of US adults support the Supreme Court banning colleges and universities from considering a student's race and ethnicity when making decisions about student admissions. At the same time, 64% also say that in general, programs designed to increase the racial diversity of students on college campuses are a good thing.
A conservative group, Students for Fair Admissions (SFFA) is behind both challenges.
Edward Blum, the President of SFFA, has hired a conservative boutique law firm, Consovoy McCarthy, to challenge the policies at the country's oldest private university, Harvard and the country's first public university, University of North Carolina. The firm is composed of several former clerks of Justice Clarence Thomas who has been a critic of affirmative action.
In 2003, Thomas wrote in one opinion: "The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all."
SSFA argues that the Harvard policy violates Title VI of the 1964 Civil Rights Act that prohibits schools receiving federal funds from discriminating based on race. He says that the UNC policy is subject to Title VI, as well as 14th Amendment's guarantee of equal protection under the law, which covers state universities.
Lower US courts have ruled in favor of the schools finding that that the programs used race in a sufficiently limited way to fulfill a compelling interest in diversity.
The two disputes were initially consolidated, but after Justice Ketanji Brown Jackson announced she would recuse herself from the Harvard case because she had served on the school's board of overseers, they were decoupled, so the nation's first black female justice could weigh in on the issue in at least one case.
The University of North Carolina, established in 1789, was formally segregated for much of its history. The current challenge comes some 70 years after the first Black student was admitted.
After an eight-day trial in 2020, district Judge Loretta C. Biggs ruled in favor of the school making special mention of its history steeped in racism.
In a footnote, she noted the school's "comparatively recent embrace of diversity," citing Southern historian Dr. David Cecelski, who, she said provided the court with credible evidence that UNC has been a "strong and active promoter of white supremacy and racist exclusion for most of its history." The judge noted that Cecelski put forth considerable findings that while the school has made "important strides to reform the institution's racial outlook and policies" the efforts have fallen short of "repairing deep-seated strides to reform the institution's racial outlook and policies."
"The University continues to face challenges admitting and enrolling underrepresented minorities particularly African American males, Hispanics, and Native Americans," Biggs said and noted that in 2013 enrollment of African American men in the first-year class fell below 100 students.
Siding with UNC, Biggs said "Ensuring that our public institutions of higher learning are open and available to all segments of our citizenry is not a gift to be sparingly given only to select populations, but rather is an institutional obligation to be broadly and equitably administered." The Supreme Court stepped in to consider the case before it was heard by a federal appeals court.
The school's admissions office consists of about 120 employees engaged in a process where in the typical cycle the school receives about 43,500 applications for a freshman class of 4,200. Generally, about half the applicants are North Carolina residents. The requirements for admissions include a common application, an essay, letters of recommendation and standardized test scores. Race is used as a "plus factor" as the school considers criteria that includes a high school's program criteria, academic performance, testing and engagement in activities outside of the classroom as well as personal attributes such as curiosity, honesty, motivation, and impact on the community. In addition, the school considers race-neutral alternatives that would allow it to achieve diversity.
North Carolina Solicitor General Ryan Park, argued that diversity is a compelling interest at the school and that the admissions office uses a holistic approach that affords an individualized consideration of all aspects of an applicant's background, never relying upon quotas when it considers race. He also said the school makes a good faith effort to consider race neutral alternatives.
"In UNC's academic judgement, diversity is central to the education it aims to provide the next generation of leaders in business, science, medicine, government and beyond," Park said in court papers.
He said that while an applicant's race may occasionally tip the balance toward admission in an individual case "it almost always does not." He said the school offers about $159 million in undergraduate scholarships, part of which go to students based on their family's socio-economic standing. It also recruits from a pool of high achieving community college students.
Park also borrowed from the judicial philosophy favored by several of the current conservative justices who believe that the Constitution should be interpreted according to the original meaning of the founders. Park argued that the 14th Amendment was originally understood to allow "appropriately tailored race-conscious decision making", an argument that Justice Jackson made in a different case earlier in the term concerning the historic Voting Rights Act. To make the connection, Park referred to historian Andrew Kull, who wrote that the framers considered and rejected proposals that would have made the Constitution explicitly colorblind.
And he cited Brown v. Board of Education, the seminal opinion holding that state laws requiring separate but equal schools violated the Constitution. He argued that UNC's admissions policy furthers the school's "unwavering commitment to providing equal educational opportunities to all qualified students, no matter their race."
SSFA lawyer Patrick Strawbridge responded that the process is not holistic, and in fact the school conceals the improper use of race behind opaque procedures awarding "mammoth racial preferences" to African Americans and Hispanics. He said that the use of race so permeates the process that race becomes a predominant factor at "every stage."
He told the justices that the lawsuit had revealed the schools "sporadic and unserious efforts" to examine the availability of face-neutral alternatives by providing data through simulations
"A white, out-of -state male who had only a 10% chance of admission would have a 98% chance if UNC treated him as an African American and a 69% chance if UNC treated him as a Hispanic," he said.
Strawbridge argued that the Brown decision actually supports his position. "Separate but equal has no place in education," he said but added that the court should overturn a 2003 case called Grutter v. Bollinger that upheld the affirmative action admissions policy at the University of Michigan Law School. "Because Brown is our law, Grutter cannot be," he said.
Harvard's program is like that of University of North Carolina, but the challenge at hand focuses particularly on the treatment of Asian American students and a charge that the school intentionally discriminates against them setting higher standards for their admission. While Harvard is a private university, it is still subject to Title VI because it receives public funds.
Its freshman class in 2019 had 1,600 students out of 35,000 applicants. Of the 35,000, 2,700 had perfect verbal SAT scores, 3,400 had perfect math SAT scores and more than 8,000 had perfect GPA's. After a 15-day bench trial that featured 30 witnesses, the district court ruled in favor of Harvard, finding that the school did not discriminate against Asian Americans in violation of Title VI.
The 1st US Circuit Court of Appeals affirmed the district court, holding that it did "not clearly err in finding that Harvard did not intentionally discriminate against Asian Americans. "
The admissions process at the school takes into consideration several components including pre-application recruitment efforts, applications, a "first read" of application materials, and interviews. The reading procedures include guideline to assign numerical numbers to certain categories to detail the factors admissions officers should consider. Those factors include academic ratings, extracurricular ratings, athletic ratings, and personal ratings.
The personal ratings attempt to measure how an applicant impacts people around them and contributions they might make. Considerations include perceived leadership, maturity, self-confidence, likeability, courage and kindness. After SFFA brought the suit, Harvard modified its instructions to say that an applicant's race or ethnicity should not be considered in assigning the personal ratings. Harvard has a list of so called "tip" factors including race that are used after the first read process.
Former US Solicitor General Seth Waxman, Harvard's lead lawyer, pointed out in court papers that court precedent allows a "holistic" review of an application, and that it need not ignore race.
"Seeking the benefits of a diverse student body, universities may consider race as one among many factors," he said.
"Our Constitution promises 'equal protection of the laws,' he said and added "it does not require us to disregard the commonsense reality that race is one among many things that shape life experiences in meaningful ways."
He roundly rejected charges of any discrimination against Asian American students arguing that while the SFFA "invokes the bogeyman of discrimination" against Asian American applicants the lower courts had found "in no uncertain terms that Harvard does not discriminate."
And he said that the lower courts had found that none of the asserted race-neutral alternatives put forward by Harvard would allow it to achieve its goals and that if it abandoned consideration of race as one among many factors, representation of African Americans and Hispanic students would decline.
Cameron Norris, the SSFA lawyer charged with arguing the Harvard case, charges the schools with ignoring precedent and the "mistreatment" of Asian American applicants.
"Its admissions process penalizes them for supposedly lacking as much leadership, confidence likability, or kindness as white applicants" he said.
He particularly attacked Harvard's system based on so called "personal ratings." By considering race alongside subjective criteria like "self-confidence, likability, and courage" universities invite admissions officers to rely on anti-Asian stereotypes, he said.
"No one is under the illusion that we live in a post-racial society, or that racial discrimination is a thing of the past," Norris said in court papers. "But when elite universities place high-schoolers on racial registers and tell the world that their skin color affects what they think and know, the universities are hurting, not helping," he said.
Solicitor General Elizabeth Prelogar supports both Harvard and the University of North Carolina, urging the justices to reject the invitation to ignore court precedent stemming from the Court's 1978 decision in Regents of the University of California v Bakke where Justice Lewis F. Powell Jr. recognized that the nation's future "depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples."
She noted that court precedent has played a vital role in bringing diversity in higher education that has had rippling effect in the work force.
"The Nation's military leaders, for example, have learned through hard experience that the effectiveness of our military depends on a diverse officer corps that is ready to lead an increasingly diverse fighting force," she said in court briefs.
She said court precedent has proven "eminently workable, carefully limiting the consideration of race and requiring use of race-netural alternatives to the extent possible."
And she, too cited, Brown.
"Nothing in Brown's condemnation of laws segregating the races to perpetuate a caste system calls into question admissions policies adopted to promote greater integration and diversity," she wrote.
A friend of the court brief filed on behalf of the NAACP Legal Defense Fund also questions the challengers' suggestion that Brown mandates a result in SSFA's favor.
"Petitioner would transform Brown from an indictment against racial apartheid into a tool that supports racial exclusion, prevents further advancement in the Nation's progress towards racial integration, and deepens persistent inequalities in educational opportunities," the brief said.
The Asian American Legal Defense and Education Fund is also supporting the school, rejecting the charge that race-conscious admissions policies discriminate against Asian Americans or perpetuate harmful stereotypes against them.
"The Asian American community is vast and varied, including first-generation college students and children whose parents' professions secured their immigration; children of working-class refugees and multigenerational Americans; speakers of over 300 languages; aspiring entrepreneurs, artists, teachers, and more," they argued. They say that Students for Fair Admission relies on "manipulated date" to attempt to demonstrate that Asian Americans with high test scores are admitted at lower rates than other racial groups.
Two groups, however, the Asian American Coalition for Education and the Asian American Legal Foundation, support SFFA with a particular emphasis on the "personal ratings" used by Harvard that the groups say assigns an "artificially low" rating to Asian American applicants during the admissions process to "counter their otherwise above-average metrics and 'balance' the racial makeup of its student body."
"Through use of the personal rating, Harvard essentially imposes a racial hierarchy, where African Americans are the most desirable, followed by Hispanics, followed by whites, and with Asians at the very bottom as the least favored and the least likely to be admitted," they said.
David E. Bernstein, a University Professor at George Mason University's Antonin Scalia Law School also supports SFFA. He calls into question Harvard's racial categories, deeming them "arbitrary and irrational."
"Harvard cannot explain why roughly 60% of the world's population should be grouped together as 'Asian" despite vast differences in appearance, language, and culture," he added.
CORRECTION: This story has been updated to specify that Jackson is the nation's first female black justice.