At SFFA Oral Arguments, Justices Question How Long Race-Conscious Admissions Should Last

WASHINGTON — During oral arguments Monday morning, Supreme Court justices pressed lawyers arguing on behalf of Harvard and the University of North Carolina on how long the universities will continue to factor race into their admissions decisions.

Monday’s hearings marked the latest chapter in the eight-year saga of anti-affirmative action group Students for Fair Admissions’ crusade against the schools’ consideration of applicants’ race. Citing a clause in the 2003 landmark case Grutter v. Bollinger, the six conservative justices on the bench demanded to hear when the two schools expect to sunset their race-conscious admissions programs.

In her opinion for the Grutter case, Justice Sandra Day O’Connor affirmed the constitutionality of affirmative action in higher education, though not indefinitely.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” the Grutter ruling reads.

The conservative justices clung to O’Connor’s 25-year sentence throughout Monday’s oral arguments, repeatedly questioning the school’s lawyers on the timeline of affirmative action.

“When does Harvard anticipate this will end?” Justice Neil Gorsuch asked Harvard lawyer Seth P. Waxman ’73, echoing questions by Justices Brett M. Kavanaugh and Amy Coney Barrett.

Waxman said Harvard expects that by the 25th anniversary of the Grutter ruling in 2028, race-neutral admissions policies will still not be a viable path to achieving a diverse student body. But he added the school “takes to heart Justice O’Connor’s opinion.”

When asked about his dismissal of the 25-year clause as a hard deadline, North Carolina Solicitor General Ryan Y. Park, who argued on behalf of UNC, said the weight placed on race as a factor in admission acts as “a dial, not a switch” and has already diminished over the last two decades.

“We anticipate that we will be able to dial it down to zero,” he said.

Park described the Grutter case as “helpfully self-limiting” since it requires schools to actively search for alternative race-neutral admissions processes.

SFFA lawyers, who urged the court to overturn the precedent set by Grutter, offered differing interpretations of the clause in O’Connor’s opinion.

“I think what Justice O'Connor was saying is that in 25 years, if we still need race, it's not that you get another 25 years,” SFFA lawyer Cameron T. Norris told the court. “It's that we then declare racial preferences to be a failure and call it off and go with race neutrality and try that instead.”

But Norris’ colleague, Patrick Strawbridge — who earlier that day argued against UNC — said he does not believe O’Connor meant to provide a strict deadline.

Justice Kavanaugh asked Strawbridge how the court should think about “the importance of race-conscious decision-making being time-limited and temporary.”

“We do not understand the 25-year limit somehow to have been a hard and fast requirement,” Strawbridge replied. “I think that the language in Grutter had an aspirational element to it.”

While the lawyers were split on what the deadline means for the future of affirmative action, constitutional law experts are uncertain how O’Connor arrived at the 25-year limit.

“Nobody knows,” New York University School of Law professor Melissa Murray said. “Twenty-five years seemed like a good length of time.”

She added that even at the time of the Grutter ruling’s release, many were skeptical that such a deadline would be feasible.

“There were many people who were like, ‘Wait a minute, I don't think we're going to be done with racism in 25 years. It took a long time to get here. It'll probably take more than 25 years to unravel all of this,’” Murray said.

Richard Sander ’78, a professor at the University of California Los Angeles School of Law, said that because the Grutter opinion came out 25 years after the previous landmark affirmative action decision — the 1978 case Regents of the University of California v. Bakke — O’Connor may have simply used the same number as an example.

But David E. Bernstein, a professor of law at George Mason University who also filed a brief in support of SFFA, wrote in an email that he believes “O’Connor made it up.”

Regardless of the anticipated timeline or the reasoning behind it, the justices and the lawyers who argued on Monday agreed that reaching a race-neutral alternative is the end goal for college admissions.

“I think everybody has agreed — all our cases indicate — that race-neutral means are better,” Justice Elena Kagan said.

—Staff writer Rahem D. Hamid reported from Washington. He can be reached at rahem.hamid@thecrimson.com.

—Staff writer Nia L. Orakwue reported from Washington. She can be reached at nia.orakwue@thecrimson.com.