Conservative Supreme Court justices cast doubt on affirmative action in college admissions

WASHINGTON — The U.S. Supreme Court’s conservative majority on Monday questioned the legality of race-conscious policies in college admissions, as the justices weighed two cases that could upend the admissions process many colleges use to try to boost diversity on campus.

At issue are two cases that challenge the lawfulness of affirmative action at Harvard University, the nation’s oldest private university, and the University of North Carolina, one of its oldest public universities.

Depending on the scope of the court’s ruling, the outcome of these lawsuits could affect admissions at hundreds of colleges and universities across the country and even potentially affect broader efforts like workplace diversity programs.

The oral arguments, scheduled to last just over two-and-a-half hours, stretched for nearly six hours in one of the most controversial cases before the court this year

Members of the court’s conservative wing, who now make up a 6-3 majority of the bench, questioned if it is legal for universities to consider race and for how long such policies should endure.

Justice Clarence Thomas, a conservative justice and the only Black man on the Supreme Court, asked each of the lawyers who argued in favor of UNC’s admissions process to explain how racial diversity benefits the educational experience of students.

“I didn’t go to racially diverse schools but there were educational benefits. And I’d like you to tell me expressly when a parent sends a kid to college that they don’t necessarily send them there to have fun or feel good or anything like that. They send them there to learn physics or chemistry or whatever they’re studying,” Thomas said to Ryan Park, the attorney representing UNC. “So tell me what the educational benefits are to that?”

Park referenced studies that found diverse groups of people perform at a higher levels, have less group-think, more sustained disagreement and more efficient decision-making outcomes.

Thomas sounded unmoved: ”Well, I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation too.”

Justice Brett Kavanaugh asked how religious diversity is considered in the admissions process and why it has “disparate treatment” from racial consideration.

Liberals defend ‘pipelines to leadership’

The more liberal justices, who are in the minority, defended the use of race in admissions and argued it would be difficult to achieve diversity without any consideration of race.

Justice Elena Kagan, the former dean of Harvard Law School, noted the importance of racial diversity on college campuses because they are “pipelines to leadership in our society.”

Justice Ketanji Brown Jackson questioned if a college could consider the breadth of a student’s experience without consideration of race.

She presented an example of a Black student, descended from slaves who were not allowed to attend UNC, who would not be allowed to write about that in his application. But a white student, descended from generations of UNC graduates, would be able to reference the importance of that family connection.

“What I am worried about is … the context of a holistic review process of a university that can take into account and value all of the other background and personal characteristics of applicants, but they can’t value race,” Jackson said in arguments with the lawyer challenging UNC’s policies.

“What I’m worried about is that it seems to me to have the potential of causing more of an equal protection problem than it is solving,” Jackson added.

Jackson participated in the debate of the UNC case but not the Harvard case. Jackson, the first Black woman to serve as a Supreme Court justice, is a graduate of Harvard College and Harvard Law School and sat on the Harvard Board of Overseers until last spring.

‘How do you know when you are done?’

Since 1978, the Supreme Court has maintained that colleges and universities may consider race or ethnicity as a “plus factor” in admissions to try to create more diversity on campuses.

Schools cannot have racial quotas or use race as a sole determining factor. It is one factor among many they may consider in acceptance.

But the victories for affirmative action have been narrow in the last three different Supreme Court decisions, where the justices split 5-4, 5-4 and 4-3 to uphold its constitutionality.

The Supreme Court last ruled on an affirmative action case in 2016, recent history in the timeline of case law.

Chief Justice John Roberts, Thomas and Justice Samuel Alito were the dissenters in the 2016 decision. Now they have three more conservatives on the bench with them: Kavanaugh, Amy Coney Barrett and Neil Gorsuch.

Several of those more conservative justices questioned if the policy should endure. They noted that one of the precedent-setting cases itself warned that such policies should not go on forever. The 2003 Grutter vs. Bollinger case that allowed the limited use of race in college admissions also forecast that affirmative action would no longer be needed 25 years after the ruling.

The court’s conservative justices asked if colleges are reaching the end of that timeline, 19 years later.

“When do you read or do you calculate, to the extent you consider it at all, the 25-year limit?” Kavanaugh asked.

They also questioned how to determine if the goals of affirmative action are ever reached.

“How do you know when you are done? When would you have the endpoint?” Barrett asked.

“I don’t see how you can say that the program will ever end,” Roberts told UNC lawyer Ryan Park.

DOJ predicts broad effects of potential ruling

Gen. Elizabeth Prelogar, solicitor general for the Department of Justice, joined the defendants to argue in favor of current policies. She noted racial diversity is particularly important at the nation’s military schools and academies to help ensure a more diverse officer corps that reflects the diversity of enlisted soldiers.

But she said the effects of a ruling could be much more broad.

“The petitioner seeks a sweeping ruling that would harm students at schools and colleges throughout the nation. A blanket ban on race conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions,” Prelogar said.

“Race-neutral alternatives right now can’t make up the difference, so all students at those schools would be denied the benefits of learning in a diverse educational environment. And 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.”

Nonprofit pursued challenge

The nonprofit Students for Fair Admissions filed the lawsuits to argue that consideration of race is discriminatory and violates civil rights laws.

In the North Carolina case, it argues the university discriminates against white and Asian American applicants by giving preference to Black, Native American or Hispanic applicants.

The group accuses Harvard in particular of discriminating against Asian American applicants in order to boost representation from other groups. According to the group, Asian American applicants are significantly less likely to be admitted to Harvard than similarly qualified white, Black or Hispanic applicants.

“What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful, But it’s a predictable result of letting universities use race in highly subjective processes,” Cameron Norris, the lawyer arguing against the Harvard policy, told the court. Harvard limited the number of Jewish students it accepted in the 1920s.

The cases are the pinnacle of decades of legal challenges from Students for Fair Admissions, a group started by Edward Blum, a retired financier and conservative legal activist who has launched other lawsuits over what he sees as racial preferences in school admissions.

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Senate Republicans again block debate on voting rights legislation

U.S. Senate Republicans blocked the advance of voting rights legislation Wednesday, the second time this year—thwarting again Democrats' attempts to pass federal protections for voters amid a slew of new state elections laws.

“When we are faced with a coordinated effort across our country to limit the freedom to vote, we must stand up and do what is right," Sen. Amy Klobuchar, D-Minn., who sponsored the bill, said on the Senate floor just before the party-line vote.

The Freedom to Vote Act would make Election Day a national holiday and set minimum standards each state must have for elections, including two weeks of early voting and an option for same-day voter registration.

Supporters of the legislation say it is necessary to protect American democracy from a recent push to restrict voting access.

Nineteen states have approved more stringent voting requirements this year. Republican state legislators pushed for the restrictions, partly in response to former President Donald Trump's unsubstantiated claims of fraud in the 2020 election.

“If there is anything worthy of the Senate's attention, it is unquestionably this," said Senate Majority Leader Chuck Schumer, D-N.Y., who vowed to bring up the issue again. “If there is anything that merits debate on this floor, it's protecting our democracy from the forces that are trying to unravel it from the inside out"

But the 49-51 vote along party lines—with Schumer voting in opposition for procedural reasons—demonstrates the challenge Democrats face to advance their agenda in the evenly divided Senate. They need 60 votes and support from Republicans to get past a filibuster and move to debate and a vote on a bill.

Even after moderate Democrats made concessions, no Republicans were willing to let the bill advance and for now it is stalled.

The failure likely will encourage those who want to change the Senate's filibuster rule.

“Protecting the fundamental right to vote is not a partisan issue, and the Senate filibuster should not be used to block debate of this critical legislation," said William Roberts, managing director for Democracy and Government Reform at the liberal-leaning Center for American Progress.

“Lawmakers should take immediate action to reform the arcane filibuster rules so the Senate can debate and pass this measure. The future of our democracy is at stake," Roberts said.

The Manchin effect

House Democrats passed a more expansive voting rights proposal, called the For the People Act, last March.

But Republicans blocked debate on it in the Senate last summer.

In response, a group of Senate Democrats drafted a scaled-back proposal.They added a requirement for voter identification at the behest of West Virginia Sen. Joe Manchin III, who had voted to advance the earlier bill but still had problems with it.

The new proposal also scaled back controversial provisions affecting the Federal Elections Commission and threw out some revisions to the ethics laws.

Klobuchar introduced the Freedom to Vote Act. Democratic Sens. Jon Tester of Montana, Tim Kaine of Virginia, Jeff Merkley of Oregon, Raphael Warnock of Georgia and Manchin were among the original cosponsors.

“Now, crafting this bill, as you know, was no easy feat," Schumer said on the Senate floor Wednesday. “It took months of hard work, compromise, and gathering feedback from experts on sensible policies that have been proven to work."

Manchin was key in trying to gain GOP support for the bill, according to Schumer, and met with Republican senators over the past few weeks.

But in the end, Democrats were far from the 60 votes needed to defeat a filibuster.

Senate Republican Leader Mitch McConnell of Kentucky remained staunchly opposed to the bill, which he described as a federal “election takeover."

“This latest umpteenth iteration is only a compromise in the sense that the left and the far left argued among themselves about exactly how much power to grab in which areas," McConnell said on the Senate floor Wednesday.

The Republican leader urged his colleagues to vote against the proposal and “continue to do the job the framers assigned it, and stop terrible ideas in their tracks."

Schumer asked Republicans to support the cloture vote and said he would allow a “full-fledged debate" with amendments.

“What we can't accept is a situation where one side is calling for bipartisan debate and bipartisan cooperation while the other refuses to even engage in a dialogue. If our Republican colleagues don't like our ideas, they have a responsibility to present their own," Schumer said.

There is a growing push from progressives to weaken or eliminate the filibuster.

More than 80 progressive groups have formed a coalition, Fix Our Senate, to call for filibuster reform. Eli Zupnick, a former Senate Democratic leadership aide who now works as spokesman for the group, called Wednesday's vote a “moment of truth" for Democrats to overhaul the filibuster.

Democrats do not yet have enough votes to kill the filibuster altogether. At least two Democrats, Manchin and Sen. Kyrsten Sinema of Arizona, oppose eliminating it.

But some lawmakers have suggested changing Senate rules to exempt voting rights from the filibuster or altering the rules on debate and amendments so more members of the minority might be willing to proceed.

State voting restrictions

The federal effort comes amid a wave of new restrictions enacted this year in state legislatures across the country, most of them from Republicans.

The number of restrictive voting laws approved in states in 2021 was unprecedented: Nineteen states enacted 33 laws with provisions that will make it harder for some constituents to vote, according to a report from the Brennan Center for Justice at New York University's School of Law.

State lawmakers in 49 states introduced more than 425 bills with provisions to restrict voting in the 2021 legislative sessions, according to the center.

Some new state laws include provisions to impose more stringent voter identification requirements, ban snacks or water to voters waiting in line, reduce polling place availability, shorten the time-frame for mail ballots or limit the number of mail ballot drop boxes.

Kaine said in a call with reporters Wednesday that his motivation to work on the bill was driven in part by the attack on the Capitol on Jan. 6, from rioters who wanted to overturn the presidential election.

“Those same lies are being used in states across the country to make it harder for people to vote," Kaine said.

Likewise, Sen. Michael Bennet, a Colorado Democrat, urged his colleagues to protect voting rights.

“Most countries that have a January sixth never survive to a January 20th," Bennet said.

Some advocacy groups pushing for federal protections for voting rights—including the NAACP—have said the Biden administration and Democrats should be working with more urgency.

Small groups of protestors stood outside the White House and the vice president's residence this week with signs about voting rights.

Just before the voting rights vote, Vice President Kamala Harris came to the Senate floor to break the tie on a vote to confirm a nominee, and she stayed throughout the vote on the voting rights bill.

Biden and Harris this week called the Democratic senators who have been leading the effort, according to the White House.

In a press briefing earlier this week, White House Press Secretary Jen Psaki pushed back against the notion that Biden has not done enough to support the bill, placing the blame on Republicans who will not allow it to move forward.

Biden called the party-line Republican opposition “unconscionable" in a statement released today asking for support of the bill.

“The right to vote—to vote freely, to vote fairly, and to have your vote counted—is fundamental. It should be simple and straightforward. Let there be a debate and let there be a vote," Biden said.

Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor John Micek for questions: Follow Pennsylvania Capital-Star on Facebook and Twitter.