A Diverse Supreme Court Questions the Value of Diversity

WASHINGTON — Over five hours of Supreme Court arguments Monday on the fate of affirmative action in higher education, the justices and the lawyers arguing before them mentioned diversity more than 200 times.

That was in one sense unsurprising, as educational diversity has for decades been the sole justification accepted by the Supreme Court for allowing what it has said the Constitution and a federal law would otherwise forbid: taking account of race in admissions decisions.

The court has rejected a second possible justification for racial preferences, that of providing a remedy for past discrimination.

“There’s not a remedial justification on the table here,” Justice Amy Coney Barrett said Monday. “Our precedents rule that out.”

Diversity is the last man standing. But it is a murky and contested concept, opaque by design and an anodyne way to confront the combustible topic of race. Monday’s arguments suggested that the court’s conservative majority was prepared to rule that the pursuit of diversity is no longer reason enough to allow racial preferences at the nation’s colleges and universities.

There was a note of irony in this, as the court — with four women, two African Americans and a Latina — is the most diverse in history, at least as measured by those demographic characteristics.

Taking account of such characteristics in admissions decisions is said to make it more likely that students will learn from one another in the classroom. There was little evidence on Monday that this phenomenon applies to justices on the bench.

Ryan Y. Park, North Carolina’s solicitor general, gave the standard account of the benefits of student-body diversity in his defense of the admissions program at the University of North Carolina.

“This learning environment helps us seek truth, build bridges across students of different backgrounds, and, critically here, equip students with the tools needed to function effectively as citizens and leaders in our complex and increasingly diverse society,” he said.

Justice Clarence Thomas was unpersuaded.

“I’ve heard the word diversity quite a few times,” he said, “and I don’t have a clue what it means.”

Parents send their children to college to learn things, he said. “They don’t necessarily send them there to have fun or feel good or anything like that,” he said. “They send them there to learn physics or chemistry or whatever they’re studying.”

Other conservative members of the court, including Justices Samuel Alito and Neil Gorsuch, seemed troubled by the difficulty of nailing down when adequate levels of diversity had been achieved. Racial classifications must ordinarily meet the most demanding form of judicial scrutiny, they said, while assessing whether diversity is meeting its goals is very hard to measure.

The lawyers defending the challenged programs, at UNC and Harvard, did not provide the court with criteria capable of empirical testing.

But they said that doing away with affirmative action would have profound consequences. “A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions,” said Elizabeth B. Prelogar, the U.S. solicitor general, who argued in support of both universities.

The diversity rationale has sometimes been criticized for assuming that students of a similar background hold similar views. Along those lines, Chief Justice John Roberts questioned whether all students of a given race necessarily contributed distinctive perspectives.

He imagined a Black applicant. “Let’s say his viewpoints tend to be very close to, you know, the white applicants,” Roberts said, “and he grew up in Grosse Pointe, you know, had a great upbringing, comfortable, his parents went to Harvard, he’s a legacy, and yet, under your system, when he checks African American, he gets a tip.”

Seth P. Waxman, a lawyer for Harvard, responded that not all Black applicants get a tip — an admissions advantage — and he pointed to a chart in the court record that he said indicated that racial preferences are very small.

“Well,” Roberts responded, “so there’s only a little racial discrimination in the case.”

Justice Elena Kagan acknowledged that the role of diversity is “a little bit mysterious.” But she added that “part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as a people in all our variety.”

Justice Brett Kavanaugh wondered whether Harvard was truly committed to all sorts of diversity.

“Why the disparate treatment of religion and race?” he asked. “Evangelical Christians, Catholics, Muslims add to the educational diversity at Harvard and other religious groups add to the diversity. Why not ask about that?”

Kagan wondered whether it was lawful for members of the court to try to hire diverse law clerks.

“You know, I want clerks who would be great on any number of criteria, but I also want a diverse set of clerks,” she said, suggesting a thought experiment. “So, over the years, people will look at that and they’ll say: There are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that?”

Cameron T. Norris, another lawyer for the challengers, said “that is an admirable goal.”

But he added: “I don’t think a judge could implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to Black and Hispanic applicants.”

Educational diversity as a justification for race-conscious admissions was introduced by Justice Lewis Powell, in a solo opinion in 1978 in Regents of the University of California v. Bakke. The decision struck down the admissions system at the medical school of the University of California, Davis, which had specifically reserved seats for minority applicants. Making race the determining factor, Powell wrote, violated the Constitution.

But taking account of “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element” was permissible, he wrote, to foster educational diversity in which all students learn from each other through “speculation, experiment and creation.”

The approach dodged questions of historical guilt and of remedies for past discrimination, and it made it hard to identify students who would have been admitted but for racial preferences. It has had a long run. But, judging by the justices’ questions on Monday, the diversity rationale’s days may be numbered. This article originally appeared in The New York Times.