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(CNBC)- Proponents for affirmative action in higher education rally in front of the U.S. Supreme Court before oral arguments in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina on October 31, 2022 in Washington, DC.
The Supreme Court began hearing arguments Monday in two cases that challenge the use of race-based considerations to determine who gets admitted to American colleges.
The arguments, which are expected to continue for several hours, stem from lawsuits against affirmative action in admissions at Harvard University and the University of North Carolina.
“Racial classifications are wrong,” attorney Patrick Strawbridge said in his opening argument on behalf of the group Students for Fair Admissions.
“This court has always said that racial classifications are invidious,” Strawbridge responded to Justice Clarence Thomas, a conservative who asked about defenders of affirmative action who say that taking race into account tells something about the “whole person” seeking admission to college.
Students for Fair Admissions is seeking to overturn the Supreme Court’s ruling in the case Grutter v. Bollinger, which in 2003 found that colleges could consider race in their admissions in order to have diverse campuses.
Justice Sonia Sotomayor noted that the 14th Amendment, adopted after the Civil War, took race into account to help Black Americans get access to parts of society that were denied them during slavery.
“You’re assuming that race is the only factor that gets someone in,” said Sotomayor, a liberal justice referring to college admissions.
Justice Elena Kagan hours later returned to the 14th Amendment issue when she pointedly asked U.S. Solicitor General Elizabeth Prelogar what a so-called originalist would think of affirmative action being applied given that amendment. Originalists, such as Thomas, say their decisions are guided by what the original meaning of the Constitution was, not by changing societal mores.
“An originalist would think this is clearly consistent with the original understanding of the 14th Amendment,” Prelogar said.
But Strawbridge said that Asian applicants have been disadvantaged by affirmative action policies that have benefited Black applications, a factor which he argued underscored the unfairness and unconstitutionality of those policies.
“Some races get a benefit, some races do not get a benefit,” he said.
Strawbridge said the use of race to determine who gets into a college is “inherently divisive.”
Sotomayor challenged Strawbridge to come up with any example in the court record where an applicant had gotten into college simply because of their race.
She and other liberal justices in their questions argued that race was but one of many factors in affecting how colleges determine who gets admitted.
One of the justices, Ketanji Brown Jackson, said, “They’re looking at the full person, with all these characteristics.”
She questioned how many college applicants were harmed by the use of affirmative action in a way that was redressable under the law.
Conservatives hold a 6-3 supermajority on the Supreme Court and are expected to be open to the arguments for ending affirmative action.
“I’ve heard the word diversity a number of times, and I don’t have a clue what it means,” said Thomas, who was only the second Black person appointed to the Supreme Court, after North Carolina Solicitor General Ryan Park began his argument defending UNC’s use of affirmative action.
“It seems to mean everything to everyone,” Thomas said.
Thomas said he “doesn’t put much stock” in arguments for the benefits of diversity because he had heard similar arguments in favor of segregation.
The cases being argued are Students for Fair Admissions v. President and Fellows of Harvard, case No. 20-1199, and Students for Fair Admissions v. the University of North Carolina, case No. 21-707.
