WASHINGTON — Harvard vigorously defended admissions that consider race as one factor among many in arguments before the Supreme Court on Monday.
The hearing came eight years after Students for Fair Admissions Inc., founded by conservative activist Edward Blum, first sued Harvard seeking to end its race-conscious admissions policy, which is supported by more than 40 years of legal precedent, by charging that Harvard College discriminated against Asian Americans and failed to comply with precedent regarding the consideration of race. Two lower courts ruled for Harvard on all counts, rejecting SFFA’s arguments, before the Supreme Court accepted the case. The justices, who earlier Monday heard arguments in a similar case SFFA filed against the University of North Carolina, are expected to issue their ruling before the end of June.
Arguing for Harvard, lead attorney Seth Waxman pushed back on “false” SFFA assertions that Harvard considers race “a minus” when it comes to Asian American applicants. Waxman cited the federal district court judge’s finding, reaffirmed by the court of appeals, that there was “no evidence” that Harvard discriminated. On the question of “race-neutral” alternatives, Waxman said that the College continues to evaluate such measures. There has been some success, he noted — citing examples like Harvard’s generous financial aid program — but nothing sufficient to take the place of race-conscious admissions.
“Are we there yet? No,” he said.
SFFA attorney Cameron T. Norris faced tough questions from Justices Sonia Sotomayor and Elena Kagan after arguing that while racial diversity was “not a bad thing,” it was “not a compelling interest” that would justify Harvard’s consideration of race. Kagan asked Norris what happens to schools like Harvard if they can’t achieve diversity because race has been taken away as one of their tools.
“The premise of your argument is that even if race-neutral criteria could not achieve [diversity], Harvard can’t use race-conscious criteria. And that must be because you think it’s just not important enough — isn’t that right?” Kagan said.
Other justices challenged Harvard’s position at different moments in the hearing. Justices Neil Gorsuch and Amy Coney Barrett questioned the necessity for race-conscious admissions nearly 20 years after the Grutter decision. Justices Samuel Alito and Clarence Thomas seemed skeptical that diversity provides quantifiable educational benefits that might justify the consideration of race during the admissions process.
Arguing on behalf of the U.S. government, Solicitor General Elizabeth Prelogar strongly rebuked SFFA’s claim that its case against Harvard was analogous to Brown v. Board of Education, calling that view “wrong in just about every respect.”