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The Supreme Court hears affirmative action case


At the U.S. Supreme Court today, affirmative action in higher education was clearly on life support. All six conservative justices indicated great skepticism about allowing race to be considered at all in college admissions. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: If the court's supermajority does what it sounded like it will do, it will end the ability of colleges and universities, public and private, to do what most say they still need to do - consider race as one of many factors in deciding which of the qualified applicants is to be admitted. At issue were affirmative action programs in two elite institutions - the University of North Carolina, which until the 1950s did not admit Black students, and Harvard University, which was the model for the Supreme Court's 1978 decision declaring that colleges and universities may consider race as one of many factors. The court's liberals tried their best to suss out arguments supportive of affirmative action. Here, for instance, is Justice Sotomayor suggesting that the meaning of the post-Civil War constitutional amendments fits in with affirmative action today.


SONIA SOTOMAYOR: So why is it that in the Reconstruction era - just when the 13th, 14th Amendments were being passed - Congress spent a lot of money in trying to get Black children, whether they were children of slaves or free slaves, to be educated in integrated schools? They had a belief - didn't they? - that integration itself provided a value.

TOTENBERG: Justice Jackson piled on, adding that the affirmative action programs before the court contain no automatic preference for Black and Hispanic applicants. But lawyer Patrick Strawbridge, representing the conservative group Students for Fair Admission, countered that race is a determinative factor. That prompted Justice Barrett to ask whether it would be a consideration of race if a Black applicant was admitted partially on the basis of an essay talking about his or her struggle in dealing with racial discrimination. Lawyer Strawbridge initially said no but later said yes, such an essay or one about culture would be an appropriate factor for consideration because, he said, having overcoming discrimination would say something about the applicant's character. Justice Kagan.


ELENA KAGAN: That's slicing the bologna awfully thin.

TOTENBERG: The court's three liberals made very clear in the UNC case that, in their view, carefully tailored affirmative action plans are justified in order to ensure that there's a diverse student body, which in turn produces better scientists, businessmen and women, teachers, etc. - people who work better with others and are better able to be leaders. The court's conservatives weren't buying it. Even the chief justice, who normally likes to ask hard questions of both sides, made clear from the get-go, as he has in the past, that in his view, the Equal Protection Clause enacted after the Civil War was aimed at a colorblind society.

Indeed, though three lower courts found in the UNC and Harvard cases that there was no evidence of discrimination against Asian Americans to limit their numbers on campus, as the Students for Fair Action claims, Roberts said flat out and without qualification that Asian Americans had been the victims of discrimination at both schools. Justice Alito followed up - what do you say to the simple argument that college admissions are a zero-sum game?


SAMUEL ALITO: Suppose you have a race - two people are in a race - and you give a plus factor to one of the runners. So that runner gets to start 5 yards closer to the finish line. The one who doesn't get that plus factor is disadvantaged, right?

TOTENBERG: Lawyer David Hinojosa, who represents the Lawyers' Committee for Civil Rights Under Law, replied, that's not the case at UNC because no bonus points are given to any applicant. North Carolina Solicitor General Ryan Park underlined that answer, noting that the university does not award points to anyone who self-identifies of any race. None of this seemed to make any headway with the court's conservatives, though. Perhaps the only advocate for affirmative action who did make any headway was Elizabeth Prelogar, representing the federal government and in particular the military's need for a racially diverse officer corps. She pointed to racial tensions and violence during the Vietnam War between the largely white officer corps and the mainly minority enlisted force.


ELIZABETH PRELOGAR: So it is a critical national security imperative to attain diversity within the officer corps. And at present, it's not possible to achieve that diversity without race-conscious admissions, including at the nation's service academies.

TOTENBERG: That led several of the court's conservatives to turn their attention to a different question - one raised in 2003 in the court's last decision - upholding the so-called holistic evaluations of applicants, as in the UNC and Harvard cases. In the 2003 decision, Justice O'Connor, writing for the court majority, suggested that there should be an end to such programs, perhaps 25 years hence. That, of course, would mean that the nation is quite close to the time to end these policies, though none of the advocates for affirmative action really thought that they should be abandoned yet. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.