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BREAKING: 'I've heard similar arguments in favor of segregation too': Justice Thomas takes aim at affirmative action

"Well, I guess I don't put much stock in that because I've heard similar arguments in favor of segregation too," Thomas said.

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Libby Emmons Brooklyn NY
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The Supreme Court on Monday heard oral arguments in two cases that challenge the recent standard of university admissions officers using affirmative action to determine which students will be given entry into their schools. The cases, brought by Students for Fair Admissions (SFFA), are against Harvard University and the University of North Carolina, respectively, and were filed in federal court in 2014.

At issue in these cases was the definition of the word "diversity," whether or not said diversity is useful or preferable on campus, and whether or not it is discriminatory to use race as a determining factor in university admissions. During the question period, Justice Clarence Thomas asked the attorney for UNC two key questions. These questions, on what diversity is and why it is believed to be beneficial to education, was asked by Thomas to all attorneys arguing for affirmative action.

"I've heard the word diversity quite a few times, and I don't have a clue what it means," Thomas said. "It seems to mean everything for everyone."

"I'd like you to give us a specific definition of diversity in the context of the University of North Carolina. I'd also like you to give us a clear idea of exactly what the educational benefits of diversity at the University of North Carolina would be."

"So first," the attorney, Ryan Park, said, "we define diversity the way this Court has and its core precedence, which means a broadly diverse set of criteria that extends to all different backgrounds and perspectives and not solely limited to race. And there's a factual finding in this record... that there are many different diversity factors that are considered as a greater factor in our admissions process than race.

"We have a particular interest in recruiting and enrolling rural North Carolinians. In the last incoming class, four out of every 10 students who entered the campus stores were from rural North Carolina, one of the 2012 students has a military affiliation, including the most veterans on campus since World War Two. And so we value diversity of all different kinds and all the ways that people differ in our society. On the educational benefits question, Your Honor, I don't think it was actually disputed here that there are real and meaningful educational benefits that come with diversity of all kinds."

He contended that SFFA "conceded, and agreed enthusiastically in fact, on the stand that racially diverse and diversity of all kinds leads to quote, a deeper and richer learning environment, leads to more creative thinking and exchange of ideas, and critically reduced bias between people of different backgrounds and not solely for racial backgrounds."

"Still haven't given me the educational benefits," Thomas said. He then recounted his own experience, saying, "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 their study.

"So tell me what the educational benefits are," Thomas said.

"There's three main buckets, Your Honor, and the first and I think most pertinent to the question that you asked is the actual truth-seeking function of learning in a diverse environment. I would direct the court to the major American businesses brief which discusses a whole extensive, rigorous, peer-reviewed literature that diverse groups of people actually perform at a higher level. So the most concrete possible scenario is stock trading. And there are studies that find that racially diverse groups of people making trading decisions, perform at a higher level make more efficient trading decisions, and the mechanism there is it reduces groupthink, and people have longer and more sustained disagreement, and that leads to a more efficient outcome," Park said.

"Well, I guess I don't put much stock in that because I've heard similar arguments in favor of segregation too," Thomas said.

Later, Thomas asked UNC's other attorney what the actual educational benefits to diversity on campus are.

"Fostering innovation," the attorney said, going on to list, "to broaden perspectives," and that "racial interactions and dialogue between students... helps better prepare them for the world that they're going to work and live in. There is the reducing stereotypes, you know, for our own students who testified in this case it's played an incredibly important role in their education."

Park stated that religion was not a factor that was considered in diversity admissions.

Park was asked "why do you have students check the box? What do you learn from the mere checking of the box?" He danced around the question, leading to the follow-up "Why do you have these boxes? why? Why do you give a student the opportunity to say, this one thing about me, I'm Hispanic, I'm African American, I'm Asian. What does that tell you in itself?"

Thomas also asked attorney Elizabeth Prelogar,, arguing on behalf of the Biden administration, what the benefits in education are. Her answer had to do with the results of graduating more diverse students into a professional or military society that then has more diversity.

For Park, race is so integral to who a person is that it must be part of a holistic admissions approach. For Jackson, it was key that the reporting of an applicant's race was entirely voluntary, meaning that a student can choose to have race considered or not.

"Given a holistic review process like that, is there a risk of treating people differently by not allowing some applicants to talk about that aspect of their identity?" Jackson asked. Her concern, she said, was that "that creates an inequity in the system with respect to being able to express your identity, and importantly, have that valued by the university, when it is considering the goal of bringing in different people. Is that a crazy worry or is that something that I should be concisely thinking about and concerned about?"

Park said that this was not a crazy concern.

SFFA stands on the precedential case Brown v. Board of Education to say that there should be no racial segregation in schools. These cases would overturn the 2003 Supreme Court ruling in Grutter v. Bollinger that explicitly allowed universities to use race as a factor in admissions for the purpose of achieving a racially diverse student body.

The SFFA argues that the ruling in Grutter allowing racial considerations in university admissions was "egregiously wrong," that it has led to "significant negative consequences," and that the previous ruling is essentially outmoded, nearly 20 years later.

At the time of the Grutter ruling, Supreme Court Justice Sandra Day O'Connor said that "25 years from now, the use of racial preferences will no longer be necessary to further" a school's desire for a diverse student body.

When asked about that 25-year indicator, Park said that "we don't think the compelling interest in diversity will ever expire."

Justices Sonia Sotomayor and Ketanji Brown Jackson both questioned Strawbridge, the lawyer for SFFA who was first in the morning, on the "actual actionable injuries" that result from the affirmative action admissions standards, saying that since race was not necessarily a determining factor, and since schools do not require applicants to state their race, SFFA may not even have standing. 

"Why does having race as a factor harm your members in a redressable way?" Jackson asked. 

"The record in this case is that UNC gives racial preferences to African Americans, to Hispanic Americans, and to American Indians. It does not give racial preferences to white applicants and to Asian applicants," Strawbridge said before Jackson interrupted him.

"Are you sure about that? I thought that was not a rule that anyone could get a point for diversity. Anyone could get a point for racial diversity to the extent that the other factors in their application allow for it," she said. Jackson has recused herself from the decision-making because she served on Harvard's Board, but was very present in the question period.

A distinction was made between using race as a factor in admissions in a "stand-alone," "box-checking" sort of way, and the use of race as part of an applicant's experience, as may be recounted in an admissions essay. Strawbridge said that the latter is perfectly acceptable, while the previous method should not be allowed under the law.

Sotomayor asked explicitly why it should not be necessary to have a university student body look like "the rest of America." In her view, the university-to-leadership pipeline must ensure diversity. 

Justice Kavanaugh asked about a potential program that could result from a ruling in favor of SFFA in which descendants of those who were enslaved in America were given preference. Harvard has undertaken a program to specifically offer a kind of reparations to the descendants of those who were enslaved at the university itself.

SFFA states as their purpose to be "dedicated to defending the right to racial equality in college admissions," per SCOTUS blog.

Harvard, which has defended their admissions practice, receives some 35,000 applications for only 1,600 available spaces. SFFA alleges that those who suffer most from Harvard's affirmative action admissions standards are Asian American students. Asian American students of equal qualification to white, black, or Hispanic students, SFFA argues, are less likely to be admitted.

The case against the University of North Carolina alleges that the school used affirmative action to create a diverse student body even though it didn't need to use that method. UNC admissions use race as a "plus" factor, and this distinction was enough for federal district judge Loretta Biggs to allow the policy to stand. 

Lower courts have ruled in Harvard's favor, saying that the school was not in violation of the Title VI of the Civil Rights Act, which prohibits racial discrimination from institutions that received federal funding. The ruling of Judge Allison Burroughs in 2015 was that the discrimination against Asian American students was not intentional, and that race was used as a factor in service to the goal of creating a diverse student body.

This ruling was again upheld by the US Court of Appeals, which said that Harvard was trying to seek to increase enrollment of black and Hispanic students, even attempting to award them more financial aid, but that preferential admissions worked better than other methods.

These courts looked at Harvard's intended outcome and used that to justify their methods. The SFFA brought both cases to the Supreme Court in 2021.

For their part, Harvard sees their mission as not only creating a diverse student body, but a diverse society and workforce at large. This, they contend, is a viable reason for discriminating on the basis of race during admissions.

The Biden administration backs the universities in their use of race as a factor in the admissions process.

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