When Diversity Matters

It is often said among appellate litigators that oral arguments rarely affect the outcome of a case. The written arguments—the briefs—are the coin of the realm. Perhaps for that reason, most analysts of the marathon five-hour oral argument in the affirmative action cases before the US Supreme Court in late fall concluded that nothing of real import happened. The justices—those on the right and the more moderate ones—hewed to the positions most people expected them to take.

But the oral argument in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College was significant for reasons beyond its extraordinary length. First, this was an argument about race-conscious university admissions—about whether diversity matters—held before the most racially diverse US Supreme Court in history. Justice Ketanji Brown Jackson, the first Black woman to sit on the Court, was confirmed earlier this year and participated in the hearing for the UNC case. (She recused herself from the Harvard case because of her former membership on the Harvard Board of Overseers.) Justice Jackson brought to the argument what has emerged as her signature style: sharp, focused questions, a mastery of the record, and upbeat but often devastating lines of investigation that leave little room for advocates to hedge or dissemble. Her questions and observations during the argument shifted its tenor and intensity.

It has been a long time since a Black justice on the Court has spoken with such depth and experience about the many ways in which race can be deeply entwined with identity and self-expression. Not since Justice Thurgood Marshall stepped down in 1991 has a Black justice supported affirmative action. Justice Clarence Thomas, who has been a vocal and passionate opponent of the practice despite being perhaps its highest-profile Black beneficiary in American life, appeared at argument to remain consistent in his opposition. He has always saved the heat of that opposition for written dissents and concurrences, and for years commentators and the press have accorded intense attention to his singular voice as the only Black person on the Court. That there are now two Black justices and a Latina justice on the nine-member bench gave this oral argument a markedly different dynamic.

This was also the first time that six justices hearing the issue have been conservatives. In 2016, when the Court last decided an affirmative action case, Justice Anthony Kennedy provided the swing vote to uphold race-conscious admissions and wrote the majority opinion. And although Justice Ruth Bader Ginsburg’s voice was missing this time, Jackson’s wasn’t the only one in apparent support of affirmative action. Freed from her recusal in the two Fisher v. University of Texas cases from 2013 and 2016 (as solicitor general, she had overseen the government’s brief in the first case), Justice Elena Kagan made several formidable interventions in her questions to counsel for the petitioner, Students for Fair Admissions (SFFA). Hers were among the most penetrating observations about the implications of litigation that challenges efforts to create racially inclusive environments in universities—widely regarded as pipelines to leadership in American business, law, and politics.

These two cases were at first consolidated for the Court’s review and then decoupled, enabling Justice Jackson to participate in one of them. The first case challenges race-conscious admissions at UNC, a public school, under the equal protection clause of the Constitution and Title VI of the Civil Rights Act of 1964—the provision that prohibits programs that receive federal funds from engaging in discrimination. The second challenges them at Harvard, a private school, under Title VI. The Harvard case raised an important new charge: that race-conscious admissions disadvantage Asian American applicants.

The source of this newly framed strategy on behalf of Asian Americans was no mystery. A decade ago a white student, Abigail Fisher, challenged race-conscious admissions at the University of Texas at Austin, the state’s flagship university. Her litigation was guided by Edward Blum, the conservative activist and businessman who also directed and, with the support of dark money groups, underwrote the challenge to the preclearance formula of the Voting Rights Act in Shelby County v. Holder (2013), the notorious case that opened the floodgates to modern voter suppression. If Ed Blum is a businessman, his primary business appears to be dismantling decades-old civil rights victories.

Fisher was a failure for Blum. The Court’s decision in the 2013 case (Fisher I) reestablished that strict scrutiny should govern review of affirmative action cases—a decision that even Justices Sonia Sotomayor and Stephen Breyer joined. But when Blum and Fisher tried to apply that standard to race-conscious admissions at UT in Fisher II, they lost. Justice Kennedy ruled that UT’s admissions policies withstood strict scrutiny under the Fourteenth Amendment.

And yet Blum got a new strategy out of Fisher. The claim in that case was that race-conscious admissions harmed white students like Fisher, but in his concurrence in Fisher I Justice Thomas suggested that affirmative action may harm students of Asian descent. (Justice Samuel Alito made that claim even more forcefully in his 2016 dissent in Fisher II.) Since Regents of the University of California v. Bakke (1978), every Supreme Court affirmative action case about university admissions had been brought on behalf of white students who were denied admission to the schools of their choice. But following the suggestion that first appeared in Justice Thomas’s concurrence, by 2014 Blum had begun pursuing Asian American students for a challenge to Ivy League admissions. As he explained, describing his strategy in a talk before the Houston Chinese Alliance, “I needed Asian plaintiffs.”

Although Blum purports to have found Asian American plaintiffs, he filed suit in 2014 on behalf of SFFA, a nonprofit he created that describes itself as an organization of “students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.” The organization lists Blum as its president and contact person. In its challenge to race-conscious admissions at Harvard, SFFA claims to have sued “on behalf of its members, including Asian-American students who were denied admission to Harvard.” But no members of SFFA testified at the trial in the Harvard case. SFFA’s claim against UNC, which specifically identifies an anonymous white applicant, raises claims virtually identical to those raised against UT in Fisher.

When federal district judge Allison Burroughs decided the Harvard case in 2019, it seemed that Blum’s strategic gamble once again would not pay off. In a 130-page opinion, Burroughs concluded that the trial had produced “no credible evidence” that Harvard’s admissions process discriminated against Asian American applicants. In 2020 her decision was upheld by the First Circuit Court of Appeals. SFFA was likewise unsuccessful in its claim against UNC. In a 155-page decision, the district court found that the university demonstrated that it has a compelling interest in “pursuing and attaining the educational benefits of diversity” and deemed its “highly individualized, holistic” admissions program constitutional. Indeed, the trial court found that UNC still remains “far from creating the diverse environment described in its Mission Statement.” Bypassing the Fourth Circuit Court of Appeals, SFFA took its appeal directly to the Supreme Court.

But as October’s oral arguments demonstrated, Blum was not wrong to calculate that the framing of the Harvard case—in which the aggrieved party was an Asian American student rather than a white one—would have greater traction with the Supreme Court. When Blum filed the case in 2014 he could not have anticipated the seismic changes to the Court occasioned by Justice Kennedy’s retirement and the death of Justice Ginsburg. But he could well have predicted that Justice Alito’s longstanding opposition to affirmative action—firmly held since his days as a member of the conservative group Concerned Alumni of Princeton—and Chief Justice John Roberts’s revulsion at race-conscious policies, or what in 2006 he called the “sordid business” of “divvying us up by race,” would be activated even more forcefully by a claim that affirmative action harms a minority group.  

There ought to have been formidable obstacles to Blum’s challenges. In Bakke the Court struck down affirmative action practices in college admissions that relied on racial quotas or fixed racial targets. The Court also disapproved of the use of affirmative action to redress broad historical discrimination. But a majority of the justices announced their approval of the kind of race-conscious admissions used by Harvard for the purpose of creating a diverse student body. Justice Lewis Powell described this goal as part of the “freedom of a university to make its own judgments as to education,” which is protected by the First Amendment. While race could not be the controlling factor in admitting a student, it could be a “plus” factor in a holistic review of an application. Since then the Court has twice upheld the use of race as a factor in university admissions when it promotes diversity—first in Grutter v. Bollinger (2003) and again in Fisher.^*

Given that the use of race-conscious admissions is supported by a forty-four-year-old precedent that was reaffirmed only six years ago, Harvard’s and UNC’s policies should have been safe from reversal or even review—especially since they were accompanied by detailed factual findings from trial courts, and in Harvard’s case upheld by the court of appeals. Stare decisis, the oft-cited rule of precedent, is supposed to insulate the Court’s final decisions from instability and frequent challenge. The process of overturning Supreme Court precedent is usually a slow one in which the justices chip away at the foundation of an earlier decision until it rests on uncertain ground. But since Justice Amy Coney Barrett joined the Court in the weeks before the 2020 presidential election, the now-solid six-member conservative majority has been doing something of a run on the tables. Longstanding conservative targets—voting rights, union activity, separation of church and state, gun control, federal agency action, and abortion—have been dismantled at a brisk pace.

In overturning the right to abortion in Dobbs v. Jackson Women’s Health Organization, the majority opinion written by Justice Alito relied on the Court’s decision in Brown v. Board of Education (1954) as evidence that “stare decisis is not an inexorable command.” Brown, of course, overturned Plessy v. Ferguson (1896), which legalized state-sanctioned apartheid in the US, undergirding decades of Jim Crow segregation and the violent enforcement of white supremacy in the South and frustrating the fulfillment of the equal protection clause. But between Plessy and Brown lay sixty years and a succession of decisions by the Court, first banning laws that required segregation in housing, then in higher education, before it finally outlawed segregation in K–12 public schools.

Even after deciding Brown, the Court showed timidity in compelling implementation of its landmark decision. Brown II (1955)—in which the Court determined that desegregation should be undertaken with “all deliberate speed”—is regularly and appropriately derided for giving aid and comfort to southern segregationists, who understood the decision as permission to slow-walk integration. For years they used the Court’s determination that desegregation should be undertaken at a pace set by local officials to frustrate the core holding of Brown in letter and spirit. The Court showed no such solicitude toward the millions of women who after Dobbs were denied the right to bodily autonomy in the blink of an eye.

The rejoinder is frequently that “Plessy was wrong on the day it was decided.” True. But Roe is not Plessy, and no Supreme Court decision that removes the right to bodily autonomy from half the country’s population can be compared to the Court’s decision in Brown to finally affirm the Fourteenth Amendment’s guarantee of full citizenship for Black people. Race-conscious admissions in colleges and universities are not only, as the Supreme Court has found, part of the First Amendment rights that universities enjoy; as originally conceived, they are also part of the larger Fourteenth Amendment project to ensure Black equality, agency, and citizenship. It would be just as grotesque to compare a decision that would overturn forty-four years of race-conscious admissions to Brown as it is to compare Plessy to Roe.

In addition to stare decisis, the Court might have easily and summarily affirmed these cases for another reason: as the oral arguments revealed and the lower courts determined, there are devastating weaknesses in SFFA’s challenge. At every turn counsel for the universities—and, in their questioning, the moderate justices—emphasized that the evidence accumulated during discovery and presented at trial simply does not support what the conservative justices seemed to believe it would. The trial court judge explicitly found that the Harvard admissions program does not discriminate against Asian American students. Another judge found that UNC’s admissions program does not violate the Constitution. In each case the findings were overwhelming, meticulous, and detailed.

During the argument, this seemed to frustrate Chief Justice Roberts, who at one point referred to a chart that he apparently thought demonstrated the disparities in standards for admitted students across race at Harvard. Seth Waxman, counsel for Harvard, pointed out that the chart used incomplete data and relied on a measure, the “academic index,” that Harvard does not even use to make admissions decisions. Rather than engage with the voluminous factual record, Justice Alito compelled counsel to answer a string of hypotheticals, including one about “a real problem…I’ve heard…described to me by people who face it.”

Moreover, the justices’ arguments on behalf of Asian American applicants were theoretical, because no Asian American applicant or student testified at trial in the Harvard case that they had been harmed by the admissions process. Instead students who testified at trial in support of the admissions practices at Harvard and UNC—including Asian American students—stressed how important it was to them that the universities valued their unique experiences as racial minorities. As noted in the amicus brief filed in the Harvard case by students and alumni represented by the NAACP Legal Defense and Educational Fund, one Vietnamese American student testified that “all of my experiences are informed by the fact that I am Vietnamese-American.” A first-generation Chinese American student at Harvard emphasized how serving as her parents’ “translator and advocate” shaped her strong views about social justice. All the students who testified in the case described the critical benefits of interacting with students from diverse racial backgrounds.

The oral arguments, in short, highlighted the lengths to which this Court must go in order to determine that the policies of Harvard and UNC are discriminatory. They will need to strike down precedent and jettison not only the weight of evidence in the record but also the conclusions and findings of the district courts. To do so would violate the basic rules of review in appellate practice. They will also need to second-guess the US armed services, which, as Solicitor General Elizabeth Prelogar noted, have in modern times deemed race-conscious admissions critical to building a diverse leadership corps in service academies and ROTC programs. For the Court to dismiss this interest would be extraordinary.

What the oral arguments showed was not the existence of admissions programs that harm white or Asian American students but the resistance of a majority of the justices to the very concept of diversity as an imperative with tangible value. Declaring himself perhaps “tone deaf when it comes to all these other things that happen on campus, about feeling good and all that sort of thing,” Justice Thomas repeatedly asked counsel to define the actual educational benefits of diversity. Perhaps the most effective answers to that question came from Prelogar, arguing for the United States, and David Hinojosa, representing students and alumni of color. Hinojosa cited testimony from professors and students at UNC about the work diversity does to foster innovation, broaden perspectives, and reduce stereotypes. Preserving racial diversity in service academies and ROTC programs, Prelogar argued, is “critically important” for the military to ensure that the enlisted officer corps reflects “the diversity in enlisted service members.” When in the past the corps failed to reflect that diversity, she noted, “it caused tremendous racial tension and strife.” She warned that “when we do not have a diverse officer corps that is broadly reflective of a diverse fighting force, our strength and cohesion and military readiness suffer.” Her answer presented a distinct challenge for the conservative justices, who routinely endorse deference to the military’s judgment about its own needs.

Taken together, Justices Kagan’s, Sotomayor’s, and Jackson’s interventions at oral argument also constituted a powerful answer to Justice Thomas’s question and to the conservative justices’ clear skepticism about the value of diversity. Kagan challenged the uncompromising position, taken by the counsel for SFFA, that race consciousness should be eliminated in admissions even if it results in the near exclusion of Black and Latino applicants. “I thought,” she said, “that part of what it meant to be an American, and to believe in American pluralism, is that actually our institutions…are reflective of…who we are as a people in all our variety.”

Justice Jackson, for her part, went to the heart of why race consciousness matters. Following a colloquy with Justice Brett Kavanaugh in which the counsel for SFFA seemed to suggest that identifying oneself as a “descendant of slaves” might not be sufficiently race-neutral to pass constitutional muster, Justice Jackson used her next opportunity to ask counsel to imagine two students applying to UNC. One comes from a family that has been in the state “since before the Civil War” and gone to UNC for four generations. In his application he says he seeks to “honor my family’s legacy” by attending the university. The other also comes from a family that has been in the state since before the Civil War. But because his family was enslaved, its members were unable to attend UNC. He wishes to honor his family’s legacy by being the first to attend the state’s flagship institution. Only the Black student, Jackson suggested, would be prevented from describing his personal story in his application essay. Her inquiry demonstrated how powerfully race aligns with an array of factors that might bear on an applicant’s description of their personal journey and their interest in admission to UNC.

Jackson went a step further. Because the “race neutrality” that SFFA’s counsel imagined would, in this case, prevent a Black student but not a white one from sharing facts that support his full motivation for applying to UNC, she suggested that a Black applicant might himself have a potential equal protection claim against the university if it adopted such a policy. For the Court’s first Black woman justice, a child of the South, to imagine how so-called race neutrality might arm Black students with a claim under the equal protection clause was surprising and provocative.

This oral argument mattered, in tone and substance. Its importance may have been underestimated by a benumbed Supreme Court press, understandably focused on what is likely to be the Court’s decision. Something was different here, whether it was Justice Jackson’s stunningly clear interventions, Prelogar’s pointing out to the justices that only two women are arguing before the Court this term (would it be reasonable, she wondered, for women to see that disparity and ask, “Is that a path that’s open to me?”), or Justice Kagan’s asking whether judges can consider race in hiring clerks—a question surely targeted at Justice Kavanaugh, who has spoken in the past about, and even earned praise for, hiring diverse law clerks. These moments seemed to pull the Court itself into the charged national debate about racial equality, closing the distance between the justices and our country’s ongoing struggle to build a fair and equitable democracy.

I was reminded during the argument of Justice Sotomayor’s words from almost a decade ago. In her masterful dissent in Schuette v. Coalition to Defend Affirmative Action, she argued that

the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

The argument in the Harvard and UNC cases came closer to meeting Justice Sotomayor’s challenge than we have seen in our nation’s highest Court in a very long time. It will be cold comfort if, in early summer, the decision pushes us even further from fulfilling the unmet promise of our multiracial democracy. Should the Court’s conservatives vote lockstep to supplant the record in this case—and tarnish stare decisis—for the sake of imposing a conception of race neutrality that defies the historical and contemporary reality of access and opportunity in our country, we will know that they are doing so fully aware of the catastrophic implications of their course.