Initial throughs on the oral arguments in the Harvard and UNC racial-preference cases
I was hoping for better
I listened to almost all of the two oral arguments today in the race-preferences in admissions cases — the one against UNC and the one against Harvard. Here are some preliminary observations.
First, I was somewhat disappointed by how the arguments went. The questions from Justices Kavanaugh and Barrett left me with little confidence that they will sign an opinion that rules strongly and decisively against race-based preferences in college admissions. More on that below.
Second, the several counsel defending the racial preferences seemed to distort the facts of the case without being called very much on it. So, for that matter, did Justice Sotomayor.
The Court is asked to believe that the universities in question are using race only slightly, as one of dozens of factors in admissions and that if they stopped using race, black admissions would plummet and society — the military, corporations, the health care system, you name it — would suffer grievously. Logically, it’s hard to see how these two propositions can both be true.
The Court is also asked to believe that the dinging of Asian-American applicants by Harvard for their personal qualities doesn’t help establish discrimination because, if I understood Seth Waxman’s bobbing and weaving correctly, the record doesn’t show what sub-components of the personality score are responsible for the dinging. This argument would have been laughed out of court had it been made back when blacks were being denied employment opportunities based on assessments of their personal qualities.
Third, the Asian-American students who brought these two cases were nearly missing in action during the questioning. Some of the Justices, Sotomayor in particular, seemed more concerned about whether black students who prefer to hang out with other blacks will have good social lives on campus than about whether Asian-American students who work tirelessly and to great effect in high school for the opportunity to attend a top college will be denied that opportunity because of their race.
Fourth, I thought Justice Thomas did a great job of teeing up the issue at the heart of the two cases. Taking his questions as a whole, he wanted to know (1) what benefit in terms of substantive learning is conferred by diversity at the current levels of black admissions, (2) how much less benefit would be conferred at the lower levels of such admissions expected to result from an end to preferences, and (3) why does that difference form the basis for a compelling governmental interest in preferring people on the basis of race.
Justice Thomas also wondered why, in assessing that last question, deference should be accorded to the universities being accused of discrimination. Good question.
Thomas’ emphasis on substantive learning is important because some of the case for racial preferences grounded in diversity arguments has come to rest on the emotions (or alleged emotions) of black students on campuses of top colleges. But warding off feelings of isolation and loneliness surely isn’t a compelling government interest under the Fourteenth Amendment for classifying people on the basis of race.
In my view, and in Thomas’ from what I could tell, none of the lawyers he questioned about this, made much of a case that if blacks are represented at the lower levels that would result from an end to racial preferences, learning would be stunted to a degree that satisfies the compelling interest test.
Fifth, for me, a highlight of the arguments was what I’ll call Justice Alito’s “Pocahontas” question. Alito was concerned about preferences for people who self-identify as belonging to favored minority groups with only a tenuous basis, or none at all, for doing so.
He started by asking about an applicant with one black grandparent. Then, one black great-grandparent. Then, one black great-great-grandparent.
Then, he asked about an applicant who identifies as an American Indian “because I've always been told that some ancestor back in the old days was an American Indian." Sound familiar?
Counsel for North Carolina responded that if this applicant claimed American Indian status, it’s unlikely that he or she would be telling the truth. Indeed.
Sixth, it’s always risky to predict the outcome of appeals based on the questioning at oral argument. That’s especially true here, where two potential swing voters, Justices Kavanaugh and Barrett, played it close-to-the-vest, asking questions that at times seemed intended more to satisfy curiosity than to decide the cases.
But for what it’s worth, I wouldn’t be at all surprised if the Court divides three ways. Justices Sotomayor and Jackson (in the UNC case, she didn’t participate in Harvard’s) will surely vote to affirm the decisions in favor of the two universities.
At least two Justices — Kavanaugh and Barrett — might well decline to affirm the decisions below, but say that race-neutral ways of achieving diversity — e.g, substituting economic status for race, or admitting the top students in high school classes (including those in schools that are almost exclusively minority), or just awarding points to those who claim to have overcome “adversity” — are lawful. This result would, I suspect, leave universities free to finagle roughly the same levels of black and Hispanic representation among students that they’re achieving now.
Justice Kagan, though she probably would prefer to affirm the decisions below, might go along with the view that Harvard and UNC violated the law but can use race-neutral means to maintain a high level of black representation in the student body.
Chief Justice Roberts, though he probably would prefer to put an end to racial preferences and close the door on race-neutral policies whose real goal is to prefer members of certain races, might go along with allowing such policies in order to promote what he sees as the institutional interests of the Court.
Justices Thomas, Alito, and Gorsuch seem inclined to vote in favor of a strong ban on race-based preferences in admissions and to close the door, as best they can, on means of evading the prohibition, including through race-neutral policies designed to favor certain groups.
I would be disappointed with the kind of split Court I’ve just described. Maybe other observers with a better sense of the Court than I possess foresee a better result.
Carrie Campbell Severino seems to do so here.