The survival of affirmative action in higher education appeared to be in serious trouble Monday at a conservative-dominated Supreme Court after hours of debate over difficult questions of race.
The court is weighing challenges to admissions programs at the University of North Carolina and Harvard that use race among many factors in seeking a diverse student body.
The court's six conservative justices all expressed doubts about the practice, while the three liberals defended the programs, which are similar to those used by many other private and public universities.
Arguments in the North Carolina case topped 2 hours and 45 minutes, having been scheduled for 90 minutes.
Following the overturning of the half-century abortion precedent of Roe v. Wade in June, the cases offer a big new test of whether the court now dominated 6-3 by conservatives will jolt the law to the right on another of the nation's most contentious cultural issues.
Justice Clarence Thomas, the court's second Black justice who has a long record of opposition to affirmative action programs, noted he didn't go to racially diverse schools. "I've heard the word 'diversity' quite a few times, and I don't have a clue what it means," the conservative justice said at one point. At another, he challenged defenders: "Tell me what the educational benefits are."
Justice Amy Coney Barrett, another conservative, pointed to one of the court's previous affirmative action cases and said it anticipated a halt to its use in declaring that it was "dangerous" and had to have an end point. When, she asked, is that end point?
Justice Samuel Alito likened affirmative action to a race in which a minority applicant gets to "start five yards closer to the finish line." But liberal Justice Sonia Sotomayor, the court's first Hispanic justice, rejected that comparison saying what universities are doing is looking at students as a whole.
Likewise, Justice Ketanji Brown Jackson, the court's newest justice and its first Black woman, also said that race was being used at the University of North Carolina as part of a broad review of applicants along 40 different factors.
"They're looking at the full person with all of these characteristics," she said.
Justice Elena Kagan called universities the "pipelines to leadership in our society" and suggested that without affirmative action minority enrollment will drop.
"I thought 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," she said.
The Supreme Court has twice upheld race-conscious college admissions programs in the past 19 years, including just six years ago.
Affirmative action in jeopardy after justices raise doubts
Members of the Supreme Court’s conservative majority are questioning the continued use of affirmative action in higher education.
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Roe v Wade was just the beginning.
