Supreme Court: Conservative justices appear ready to end affirmative action

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Asian Americans supporting affirmative action rallied in front of the US Supreme Court Monday.

Any hope that the US Supreme Court would uphold 50 years of legal precedence favoring  affirmative action was dashed Monday.

It's pretty clear that the US Supreme Court has lost its veneer of equal justice after the court heard arguments in a pair of cases complaining about affirmative action's affecting college admission of Asian American students.

Based on the partiality of questioning Monday, Oct. 31, the six conservative justices on the 9-member High Bench appear poised to rule that the Harvard University and University of North Carolina admission policies discriminate against Asian American applicants.

As the Justices heard pro and con arguments against the two schools' admission policies, hundreds of Asian American, Native Hawaiian and Pacific Islander protestors from a score of community agencies were joined by demonstrators representing other ethnic groups who have historically been negatively impacted by racial bias. 

"We rally today on behalf of the majority of Asian American, Native Hawaiian, and Pacific Islanders (AA and NHPI) who believe that affirmative action should be defended and our voices will not be manipulated by those who fear diversity," said the National Council of Asian Pacific Americans in a statement.

"Despite claims to the contrary, affirmative action has always been about communities of color being able to present their full stories when seeking a better education and a brighter future," their statement continues.

Affirmative action has been a bone of contention for some recent Asian American immigrants who believe that their children who were denied admission to those schools are better qualified than some of the admitted students from under-represented communities. 

That's the basis of the two cases in question, Students for Fair Admissions (SFFA) v. University of North Carolina at Chapel Hill and SFFA v. Harvard University. A ruling is expected by the summer of 2023.

Harvard and UNC argue that race is only one factor to consider as they use a holistic approach in deciding which students are accepted. Educators believe a diverse student body provides a better education for all students who must be prepared to function in a multi-cultural, multi-racial work environment. 

SFFA, headed by anti-affirmative action activist Edward Blum, is naming Asian American students as plaintiffs -- none of which have testified in court -- to argue against the admission policies to avoid any appearance of White bias as the primary motive.

"To those within our community who disagree, we invite you to engage with us, rather than be used as a tool by those who seek to further disenfranchise communities of color. Our communities must stand together to embrace diversity," the NCAPA statement continued. "We stand united by the belief that affirmative action will uplift all of our communities to access equitable and inclusive education."

JACKSON RECUSAL

Inside the courthouse, attorneys representing the schools and the SFFA presented their cases to the Justices. The newest Justice, Ketanji Brown Jackson, recused herself from the Harvard case because she served as a six-term member of Harvard's Board of Overseers until last spring. 

Her daughter, Leila, is currently a first-year student at Harvard. While she agreed to recuse herself from the Harvard case in her Senate confirmation hearing last spring at the request of U.S. Sen. Ted Cruz (also a Harvard Law School alum) legal experts said the loss of her voice as the first Black woman in the nation's top court strikes a blow to racial equity.

Jackson kept her word, unlike Justices Bret Kavanaugh and Amy Coney Barrett, who told Senators that they would uphold 50 years of precedent in Roe v. Wade, the ruling that allowed women to have access to abortion, and then overturned it in last summer's Dobbs decision. 

SFFA, which lost in previous attempts to overturn affirmative action, is 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.

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. SFFA and conservative interests hope that the Supreme Court's conservative majority will overrule the lower courts as it acted against Roe v. Wade.

SCOTUS SCHISM

The divide in the Supreme Court was evident during the hearing with conservative justices harshly questioning Harvard and UNC's attorneys and the Solicitor General who spoke in favor of the school's admission policies. On the other hand, the three liberal justices, Sonia Sotomayor and Jackson were equally tough on SFFA attorneys. Although Jackson,recused herself from the Harvard case, she was allowed to participate in the UNC case.

Despite accusations of anti-Asian bias, About 22% of Harvard's first-year students in 2022 are Asian Americans or Pacific Islander. 10.7% as Black or African American, 6.5% as Hispanic or Latino, as American Indian or Alaska Native. Whites make up the biggest racial group, or 46%.

The court’s 6-3 conservative majority laid their cards on the table early by building a foundation of criticism against the court’s 50 years of precedents tht began with Bakke v. University of California, allowing the consideration of race including the 2003 SCOTUS ruling in Grutter v. Bollinger that allowed the University of Michigan Law School to consider race in its admissions process as part of its efforts to assemble a diverse student body.

Justice Samuel Alito dove into the heart of the argument used by the plaintiffs that the admission policies were biased against Asian Americans. He asked Seth P. Waxman, a former US solicitor general who represents Harvard, why Asian Americans scored lower than all other ethnic groups on the “personal rating” metric, which evaluates applicants’ personality traits. Of all the objections by Asian Americans, the "personal rating" score is what irks critics the most.

“They rank below whites, they rank way below Hispanics, and really way below African Americans,” Alito said. “What is the explanation for that?”

In his response, Waxman cited a lower court’s findings, saying that there is “no evidence of discrimination in admissions outcomes.”

Waxman said personal ratings are used by admissions officers “just as a matter of triage” and the score “fades into the background” later in the admissions process.

“It is not considered in any way once the subcommittees and committees meet,” Waxman said. “It is not the basis of admissions decisions.”

Justice Clarence Thomas, who dissented in Grutter, pressed lawyers defending the universities’ admission policies to explain the educational benefits of diversity. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.

“I don’t have a clue” what diversity means, the African American Thomas told Ryan Park, the North Carolina Korean American solicitor general representing the university.

Thomas repeated a similar question to David Hinojosa, a Latino lawyer who represented a group of students and alumni from historically underrepresented groups who intervened in the UNC case to help defend the school’s admissions policy. What academic benefits, Thomas queried, stem from diversity?

Justice Amy Coney Barrett noted that Grutter indicated that the use of racial classifications is so dangerous that it must have a logical endpoint, reports SCOTUSblog. “When does it end?” Barrett asked. “When is your sunset? When will you know?” It has been nearly 50 years since Bakke, she noted, and that timespan suggests that achieving diversity has been difficult. “What if it continues to be difficult in another 25 years?”

US Solicitor General Elizabeth Prelogar, who argued on behalf of the Biden administration defending both schools’ policies, assured the court that “there is an endpoint in sight.” Society will change, she said, in a way that will allow universities to obtain a diverse student body without considering race.

But Chief Justice John Roberts argued, observing that Prelogar’s argument “was very different from what Justice O’Connor said” in Grutter. “She said race-conscious admissions programs must be limited in time. That was a requirement,” he insisted.

The court’s three liberal justices spent most of their time rebutting the basic premise behind the challengers’ cases—that race was the one determining factor in the admissions process under affirmative action. They attempted to explain to the conservative justices tha race was just one factor—an important one, but not the overriding factor.  

Jackson took Patrick Strawbridge, one of the lawyers for the challengers in the UNC case, to task. 

“When you give your race, you’re not getting any special points,” said Justice Jackson. “It's being treated just on par with other factors in the system. No one’s automatically getting in because race is being used.”

“You haven’t demonstrated or shown one situation in which all they look at is race and take from that stereotypes and other things," she told Strawbridge. "They are looking at the full person,” she said. She added that universities don’t make admission decisions “just because somebody checks a box.”

RULING'S RAMIFICATIONS

Ruling against the affirmative action admission policies of the two schools could have a wide-ranging impact beyond the campuses. If the High Court decides that the consideration of race is unconstitutional, the ruling could impact the affirmative action considerations for job applicants or awarding the thousands of local and federal government contracts ranging from construction, to providing food or military supplies.

Justice Elena Kagan said the benefits of diversity in higher education to society at large. “These are the pipelines to leadership in our society. It might be military leadership. It might be business leadership. It might be leadership in the law. It might be leadership in all kinds of different areas. Universities are the pipeline to that leadership,” she said.

“I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as a people in all our variety.”

“A university student body comprising a multiplicity of backgrounds, experiences and interests vitally benefits our nation,” said Seth P. Waxman, a former US solicitor general who represents Harvard. “Stereotypes are broken down, prejudice is reduced, and critical thinking and problem-solving skills are improved.”

“Because college is the training ground for America’s future leaders, the negative consequences would have reverberations throughout just about every important institution in America,” said Prelogar, noting that diversity is important in the military, business, and in innovation.

Despite the SFFA strategy of using disgruntled Asian American applicants as plaintiffs, about two-thirds of AANHPI have consistently favored affirmative action, according to several polls, including surveys by the Pew Research Center and APIA Data.

"The opposition does not speak for the vast majority of Asian Americans," says John C. Yang, president and executive director of Asian Americans Advancing Justice | AAJC (AAAJ-AAJC), "and we reject these false narratives rooted in white supremacy to pit communities of color against one another when over two-thirds of Asian Americans support affirmative action because we understand it is our best opportunity to ensure there is equity and diversity in education.”

EDITOR'S NOTE: For additional commentary, news and views from an AANHPI perspective, follow @DioknoEd on Twitter.