The US Supreme Court Monday heard oral arguments Monday in two cases challenging the validity of race-conscious affirmative action programs in college admission. Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College challenge the universities’ use of race in admissions programs under both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. 

Harvard, a private institution, is subject to Title VI because it receives millions in federal grants and enrolls students who pay in part with federal financial aid. UNC, a public university, is covered by both the Constitution and Title VI, which incorporates Equal Protection standards after Title VI. Students for Fair Admission (SFFA), is a non-profit organization led by Edward Blum, an anti-affirmative action activist who seeks to remove racial preference as a consideration across all US institutions. The cases were separated upon the appointment of Supreme Court Justice Ketanji Brown Jackson due to her status at the time as a member of the Harvard College Board of Overseers. Jackson recused herself from the Harvard case but participated in the UNC case.

In the UNC case, the SFFA argued that a student’s race is often “determinative” when the admissions office admits or denies an applicant and that Carolina’s admissions data showed stark racial disparities in admission rates among similarly qualified applicants. UNC argued that through an exhaustive exploration of race-neutral alternatives (RNAs) that have been implemented and others that are purely theoretical, there are not any available, workable, or sufficient RNAs that would allow it to achieve its diversity goals.

Justice Clarence Thomas asked all three lawyers arguing for UNC’s — North Carolina Solicitor General Ryan Park, US Solicitor General Elizabeth Prelogar and David Hinojosa, who represented UNC students defending the program — to explain how racial diversity benefits the educational experience students receive. Justice Brett Kavanaugh said the court will struggle if they are asked to review affirmative action again in 10 years if the parties don’t have “something measurable” to show whether diversity goals have been achieved. 

Justice Ketanji Brown Jackson warned that if colleges are prohibited from making any consideration of race, the resulting policies risk violating the Constitution’s equal protection protections for students who will not be able to present that background in their applications. She said:

I hear a process in which there’s a form that says tell us about yourself and people can put all sorts of things. I’m Catholic, I’m from, you know, Los Angeles, I’m Latina, whatever. But now we’re entertaining a rule in which some people can say the things they want, about who they are and have that valued in the system. But other people are not going to be able to. Because they won’t be able to reveal that they’re Latino or African American or whatever. And I’m worried that that creates an inequity in the system.

In the Harvard case, the SFFA argued that Harvard admits Asian Americans at lower rates than whites, even though Asian Americans receive higher academic scores, extracurricular scores, and alumni-interview scores. Asian Americans receive the lowest personal ratings among all races, and the negative relationship between Asian American identity and the personal rating’ is “statistically significant.” The SFFA further argued that the personal rating system reveals a “clear racial hierarchy—with African Americans receiving the highest personal ratings, followed by Hispanics, then whites, then Asian Americans coming in last.” They stated that Harvard has rejected race-neutral alternatives in applying these admissions standards.

Harvard argued that if it stopped taking race into consideration as one factor in its admissions process and adopted the race-neutral alternatives that SFFA suggested, the result would be a class that fails to achieve the diversity and excellence that Harvard seeks. It concluded that such a result would severely compromise its ability to achieve the educational benefits that flow from a student body that is diverse across many dimensions, including race. Justice Alito pressed Harvard attorney Seth Waxman extensively on the evidence that Asian applicants received lower personal ratings in the admissions process than other racial groups.

The Court’s ruling in the case is expected at the end of its term in June 2023.