Supreme Court doubts Harvard’s claim of ‘little discrimination’
Students for Fair Admissions (SFFA) pointed out that Grutter had assumed that 'race would only be a plus' but has instead turned into a 'minus for Asians.'
'Your Honor, there's a finding... that Harvard can award a racial preference based on the checkbox alone,' SFFA's lawyer argued.
Oral arguments for STUDENTS FOR FAIR ADMISSIONS, INC. V. PRESIDENT & FELLOWS OF HARVARD COLLEGE began at 1 p.m. on Monday after the earlier affirmative action case against the University of North Carolina (UNC) ran long.
Cameron Norris of Consovoy McCarthy Law opened for Students for Fair Admissions (SFFA) by requesting that the justices reconsider how Grutter v. Bollinger established race-based admissions as constitutional in 2003.
“Grutter assumed that universities could use race in a narrowly tailored way if they just did it like Harvard, but this court never had any evidence about Harvard,” Norris stated. “Now you do and that evidence proves that none of Grutter’s core assumptions were ever true.”
Norris pointed out that Grutter had assumed that “race would only be a plus” but has instead turned into a “minus for Asians.”
“Asians should be getting into Harvard more than whites, but they don’t because Harvard gives them significantly lower personal ratings. Harvard ranks Asians less likable, confident, and kind, even though the alumni who actually meet them disagree,” Norris explained.
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Another problem with Grutter’s decision, according to Norris, was that the case had assumed that over time race-neutral policies would be considered, but Harvard made no such effort until three years after SFFA filed suit.
Norris closed his opening statement by calling on the court to reverse its previous ruling.
“This court should admit that it was wrong about Harvard, wrong about Grutter, and wrong about letting the poison of racial classifications seep back into education,” Norris said. “Grutter should be overruled both for public schools and for private schools that accept federal funds.”
Chief Justice John Roberts questioned Norris on whether the plaintiffs would object to allowing race to be used in part of an essay about a student’s experience “confronting discrimination.” Norris denied this assumption, however.
“Absolutely not, Mr. Chief Justice…we discovered that Harvard had amended its reading procedures for applications…that said you only should take into account race if someone talks about it on their essay, or in their in their recommendation letters,” Norris pointed out. “Harvard deleted that instruction and said that is not how we use race, and that should have never been put in there. So we really are in this case, talking about the checkbox.”
Justice Sonia Sotomayer expressed her confusion regarding how checking a box harmed Asian students.
“It was very clear that the district court found, for example, that being Asian or not being Asian wasn’t involved statistically, in any amount in any of the admissions,” Sotomayer stated.
Norris argued that the report Sotomayer referred to did in fact show a disparity that would affect Asian applicants.
“Your Honor, there’s a finding from the district court in our favor at page 116 of the petition appendix, that Harvard can award a racial preference based on the checkbox alone,” Norris said. “Whether or not an applicant writes about it or otherwise indicates that it’s important to them, and that is important. That’s racist.”
Seth P. Waxman, a former solicitor general during the Clinton administration, argued on behalf of Harvard, touting the benefits of Affirmative Action while also claiming that SFFA’s characterization of the application process was widely unfounded.
“SFFA attempts to use Harvard’s admissions program as some sort of proof that settled constitutional precedent is egregiously wrong, but while SFFA is fully entitled to its own legal arguments, it is not entitled to its own facts,” he said.
Waxman also denied that the ivy league university’s admission policies discriminated against Asian applications and claimed Harvard simply did not have a “current workable, race-neutral alternative.”
Justice Neil Gorsuch asked Waxman repeatedly why there were no racial quotas for elite, and often predominately white, sports such as squash at Harvard.
“Let’s assume that a very wealthy university could pay for everybody to go and still increase its endowment…let’s say if it just gave up preferences for donors’ children, legacies, and squash athletes,” Gorsuch asked. “Okay, or maybe those who row crew all of which tend to favor predominantly white children and it could achieve whatever it deemed racial diversity. Would it then be permitted to engage in race consciousness in that circumstance?”
In response, Waxman told Gorsuch that he would not “[claim] to accept [Goruch’s] hypothetical.” Waxman further argued that in previous court decisions the question had always been “how…does [a] race-neutral alternative, actually, substantially, impact the character of the institution and the education that’s being provided?”
Gorsuch pushed Waxman to admit that if racial quotas for Affirmative Action were used for sports teams it would “substantially impact the university but you’re saying they are not a compelling interest for constitutional purposes.”
Waxman simply referred back to the admissions process, stating if the court reversed its previous decisions on Affirmative Action the result would require “sacrifices on almost every dimension important to Harvard’s admissions process.”
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The Chief Justice raised concerns about whether or not black applicants would truly create a “diversity of viewpoints” when most of the applicants regardless of race had a “great upbringing, comfortable, [their] parents went to Harvard, [they’re] legacy.”
Waxman pointed to a chart that he argued modeled the significant importance race had on admissions.
Roberts’ remarked that the chart was too small for him to look at, causing the courtroom to erupt in laughter, but Waxman stated the chart showed that race’s impact on admissions was “very close to zero.”
Roberts did not appear convinced, stating, “[w]ell, so there’s only a little racial discrimination.”
Edward Blum of SFFA told Campus Reform in a prepared statement that “Harvard and UNC are diminishing…American individualism. As individual Americans, we are all minorities.”
Blum concluded the statement by saying, “It is the hope of a significant majority of Americans of all races that the justices of the Supreme Court will restore the original principles of our nation’s civil rights laws by forbidding race to be a factor in college admissions.”
Campus Reform contacted Harvard University, the Supreme Court, SFFA, Norris, and Waxman. This article will be updated accordingly.
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