Justices Dubious of Race as Factor with Admissions

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Adam Liptak, Justices Dubious of Race as Factor with Admissions; College plans at risk; Conservatives on court may reject decades of precedents. New York Times, Nov 1, 2022, at page A1.
https://www.nytimes.com/2022/10/ ... rmative-action.html
https://buffalonews.com/supreme- ... 1-9787eb411abd.html

Quote:

(a) "Questioning from members of the court's six-justice conservative majority was sharp and skeptical. 'I've heard the word diversity quite a few times, and I don't have a clue what it means," Justice Clarence Thomas said. 'It seems to mean everything for everyone.'

Justice Samuel A Alito Jr asked a similar question about the term 'underrepresented minority.'

" 'What does that mean?' he asked, adding that college administrations are a'a zero0sum game' in which granting advantages to one group necessarily disadvantages another.

(b) "In general, two 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.

(c) "Over the course of the argument, the justices discussed with seeming approval several kinds of race-neutral approaches: preferences based on socioeconomic status; so-called top 10 programs, which admits students who graduate near the top of their high school classes; and the elimination of preference for children of alumni and major donors, who tend to be white.

"Justice Amy Coney Barrett asked whether it would be permissible for minority students to write essays describing their experiences with race discrimination. Patrick Strawbridge, a lawyer for Students for Fair Admission, the group challenging th programs, said that was fine.

" 'What we object to,' he said, 'is a consideration of race and race by itself.' Personal essays are different, he said. 'It tells you something about the character and the experience of the applicant other than their skin color,' he said.

"Similarly, Mr Strawbridge said, an Asian American student might write about traveling to a grandparent's home country.

"Chief Justice [John G] Roberts [Jr] said that such a student would not be a 'very savvy applicant' because 'the one thing his essay is going to show is that he's Asian American, and those are the people who are discriminated against.'

"Seth P Waxman, a lawyer for Harvard [and a former Solicitor General under President Clinton], later said that it did not discriminate against Asian American applicants, though he did not contest that on average they received lower ratings for personal qualities at an early stage of the admissions process.

"Mr Waxman said that many factors contributed to whether students were admitted.

" 'Race for some highly qualified applicants can be the determinative factor,' he said, 'just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip [to tip scale].'

"Chief Justice Roberts seemed taken aback. 'Yeah,' he said, 'We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination, and that's why it's a matter of considerable concern.'

"Justice [Elena] Kagan asked Mr Strawbridge whether universities could put a thumb on the scale in admissions decisions to ensure that men were adequately represented in an era in which most college applicants are women.

"Mr Strawbridge said that question would be governed by a less demanding legal standard than the one that applies to distinctions based on race.

"Justice Kagan said the differing treatment 'would be peculiar,' adding that 'white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not?' Mr Strawbridge said there should be no preference for white men, but 'men could perhaps gain an advantage.'

(d) The court has repeatedly upheld affirmative action programs at colleges and universities, most recently in 2016, saying that educational diversity is a compelling interest that justifies taking account of race as one factor among many in admissions decisions.

"When the court agreed in January to hear the two affirmative action cases, it consolidated them and said it would hear a single hour of arguments [yesterday, the argument for North Carolina case lasted 10 am to 12:47 pm, and that for Harvard from 12.58 pm to 2.55 pm; per transcripts]. The court decoupled the cases after the arrival in June of [Ketanji Brown] Jackson, who recused herself from the Harvard case in light of her service on one of the university's governing bodies.

"The two cases are not identical. As a public university, UNC is bound by both the Constitution's equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute [Title VI].

"In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under long-standing Supreme Court precedents.

"The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions [because in the new class, percentage of Asians have been constant year after year, suggesting a quota for Asians] .

(e) "In 2016, the Supreme Court upheld an admissions program at University of Texas at Austin [the lawsuit was also sponsored by Edward Blum; A year after the 2016 loss, he started yet another race-based challenge by suing Harvard in the name of Asians] holding that officials there could continue to consider race as a factor in ensuring a diverse student body. The vote was 4 to 3. (Justice Antonin Scalia had died a few months before, and Justice Kagan was recused [who as Solicitor General had filed a brief to support Univ of Texas]).

"Writing for the majority, Justice Anthony M Kennedy said that courts must give universities substantial but not total leeway in devising their admissions programs. He was joined by Justices Sotomayor, Ruth Bader Ginsburg and Stephen G Breyer.

"Six years later, only one member of the majority in the Texas case, Justice Sotomayor, remains on the court.

:The Texas decision essentially reaffirmed Grutter v Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O'Connor said she expected that '25 years from now, the use of a racial preference will no longer be necessary.'

"But several conservative justices said they doubted that universities would ever voluntarily stop taking account of race.

" 'When does Harvard anticipate this will end?' Justice Neil M Gorsuch asked. Mr Waxman responded, 'Harvard's view about when[,] doesn't have a date on it.'

"Justice O'Connor's statement suggested a deadline of 2028. Justice Bret M Kavanaugh said the cutoff was looming. 'The current admissions cycle is for the class of '27. It's going to be late to do anything about that cycle. The next is the class of '28.'

Note:
(a) Title of the online )as opposed to print) report is: Supreme Court Seems Ready to Throw Out Race-Based College Admissions.
(b) There is no need to read the rest. The report is not translated into Chinese today (ie, nothing in cn.nytimes.com).
(c) I typed until the third paragraph in (d) before I finally find a copy of the report, which is legitimate, in Buffalo New. Still, Buffalo News misses the last eight paragraphs, some of which I reproduce in (e).
(d) "Justice Jackson, who recused herself from the Harvard case in light of her service on one of the university's governing bodies."

https://en.wikipedia.org/wiki/Ketanji_Brown_Jackson
("Since 2016, she has been a member of the Harvard Board of Overseers")
(e) Argument Transcripts. Supreme Court, undated
https://www.supremecourt.gov/ora ... ent_transcript/2022
Note there are two separate cases, and two separate transcripts.

One may search the transcript by clicking the icon of magnifying lens at the right upper corner of the display (the search function of Google Chrome does not work).