FLASHBACK: Kavanaugh's SCOTUS Questions In Landmark Case That Ended Affirmative Action (2023)

Introduction

In October 2022, Justice Brett Kavanaugh questioned lawyers during oral arguments in Students for Fair Admissions, Inc. v. University Of North Carolina and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. On June 29, 2023, the six Supreme Court justices struck down affirmative action in college admissions.

READ MORE: www.forbes.com/sites/alisondurkee/2023/06/29/supreme-court-gets-rid-of-affirmative-action-in-college-admissions/

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Content

Justice, Kagan, Justice, Gorsuch, I'd like to ask, you just a hypothetical about narrow tailoring because we're in strict scrutiny land here.

And the university has to demonstrate it's narrowly tailored.

It race is nearly tailored.

And the diversity is the rationale.

You've asserted before us.

Universities also have all kinds of other plus factors.

They use like for legacies of alumni for donors.

Children for squash players.

We learned there are plus factors because those we need those two and I guess I'm, wondering, suppose a university a wealthy University could eliminate those preferences, which tend to favor the children of wealthy white parents and Achieve diversity without race Consciousness would strict scrutiny required to do.

So if I may I'd like to just make a threshold point that those are not well that doesn't matter I understand Council I understand the hypothetical is not your case and you don't like it I got it right? But okay, but if you can just take a shot at it, the absolutely critical point if I can just very quickly is that it's Undisputed that Legacy status is not uh I understand.

So yeah, I do understand and I appreciate that.

Okay, I've had to face many hypotheticals at electron I didn't like, but let's, just take the hypothetical we're in strict scrutiny.

Compelling interest has to be established wealthy University, okay.

And it still prefers all of these and give checks to these kinds of persons, not for their academic Merit.

But because they would bring diversity in the form of a squash team, or they might bring a new art museum.

We heard, for example, oh, we have to admit that kid because his parents is going to donate an art museum.

Okay, suppose the university could achieve race neutrally, just just suppose race neutrally all of its diversity objectives.

If it just eliminated those preferences, wood strict scrutiny required to do so I would say, yes, if three things are true, all right first that alternative would have to also match the compelling interest.

Because as I mentioned, this court has never recognized a compelling interest in compelling interest in a squash team composed of really good players or a new art museum is that what you're suggesting no you're on that's, not what I'm saying, okay.

So there's, no compelling interest in those things you're telling us right? And so if the alternative didn't have an effect on broad-based diversity, not solely racial diversity, which is our main objection to the RNA.

We'd have a great socio-economic diversity.

We'd have great religious diversity.

We just would have a crummy squash team and no Art Museum.

Then what right right and I think the other condition I would try to sneak in is that there wouldn't be a material negative impact on the academic environment.

And and third is that so the gpas are good.

So these kids that are being abandoned same GPA, same sat let's, then what right and I guess, the third would be that that the specific goal of racial diversity is not significantly undermined.

And so yeah, with those three conditions.

I, I, agree.

Okay.

Thank you.

How are uh applicants from Middle Eastern countries classified from Jordan, Iraq, Iran, uh, Egypt.

And the like my understanding is that just like other situations where they might not fit within the particular boxes on the common application that we rely on self-reporting.

And we would ask, you know, they can volunteer.

They put their particular country of origin.

But if they honestly check one of the boxes, which one are they supposed to check I, I, don't do not know the answer to that question.

What I can say is that if a person from Middle Eastern country, self-decloses stealth to close, it discloses their country of origin.

It would be considered in the same way that we consider any box that matches, uh, you know, one of the boxes that's available in the common application, which is, it would be an individualized holistic analysis and I can't genuinely say that there would be a similar positive analysis in terms of the contribution that a student like that would contribute.

And we do track in particular again, after the admissions process, religion and country of origin.

And that sort of thing.

Thank you.

This is Eric just have one more question about endpoint, um.

So you know, Alan Bakke would have been born into a pre-brown world.

You know, and then we have 25 years.

We get to gretter gretter says, you know, we cannot imagine as I read that language before this is dangerous.

We can't imagine it's going to go on more than another 25 years, I've been pressed a little bit about.

What is the end point for you? Um this.

This distance of time is 50 years since Baki suggests accurately I think that achieving diversity and diverse student populations and universities has been difficult.

What if it continues to be difficult and another 25 years? Um, I, take it that you because you've repeatedly said that the 25 years is aspirational, and you told Justice, Kavanaugh wasn't, a holding that you don't think that University of North Carolina has to stop in 25 years in the 2028 Mark.

So what are you saying when you're up here in 2040? Are you still defending it like this is just indefinite it's going to keep going on I think that gruder is helpfully self-limiting in that.

It requires aggressive and enthusiastic adoption of race neutral, Alternatives and I think it's it's a dial, not a switch.

And the progress that we've made since gruder has shown that at the University of North Carolina.

We have dialed it down substantially the the expert evidence in in that case, obviously there are different institutions was at around 70 percent of the underrepresented minorities in the institution at issue and gruder.

It was determinative that they had a certain racial background.

And here the number is far smaller.

And we are anticipate that we would be able to dial it down to zero and I think the reason why I feel confident in that is because of gruder's requirement that we continue exploring doggedly, race neutral, Alternatives.

And and even as since the record has closed, the University of North Carolina has done.

So and is continually attempting to monitor it.

Thank you.

John colty, you're, having answering some of these questions about endpoint, we're, probably, uh in the mind of Justice O'connor.

She wrote the opinion in grudder for the majority.

And as Justice Barrett said, indicated that these racial classifications are potentially dangerous and and must have a logical endpoint.

And instead of leaving it, vague the opinion, didn't say, until you reach a point where you're satisfied that diversity has been achieved or something vague like that.

It said, 25 years in there and so I want to hear how you address that part of the grudder president because as I understand your answer, you would extend it far beyond 25 years indefinitely.

And that would be an extension I think, or you can tell me how you read the 25-year language, but I think the reason it's, there I think it's real important, because there are four paragraphs leading up to that it's because the difficulty you're having answering the question when without that time limit when it would otherwise be achieved.

So of course, we don't read the 25 year as some sort of strict expiration and I don't think on its face.

It was structured as such even chief justice, rehnquist.

And his descent said, this is not a fixed deadline, Justice, Thomas and His separate opinion referred to it as a holding Justice Kennedy referred to it as a pronouncement.

So anyway, just to make sure the full picture is presented there.

Yeah, yeah.

So Justice, Kavanaugh I think that every institution and every state will differ I mean, we have States coming to the court and saying we have reached our diversity, educational benefits of diversity goals.

We don't need to engage in any race conscious admissions process at our state, flagships and uh ever.

And we are at the point where I think the expert evidence here pretty definitively shows that we are able to meet what we feel is an inclusive, diverse environment through minimal consideration of race and and I think that we will get there based on this qualitative process.

But there is no stricken Miracle bench.

One of the things.

The other side has emphasized is that in the period since crudder in the uh, two decades since grunter that we have more experience with states that don't allow race-based admissions California, Florida, Washington, Michigan and others.

And that those examples now show with greater confidence than might have had in 2003 that some of the questions we were asking before of some of the race neutral Alternatives can not have the risk of treating people differently on the basis of race on the file.

But at the same time, produce significant numbers of minority students on campus campuses.

So in some ways, the experience they say is relevant I'd be interested in your response of how to think about that.

Yes, I think that the experience of the University of Michigan system and University of California system, hopefully illustrates the point I'm trying to make, which is they say that in their experience it's really a campus by campus analysis.

And in particular, the most selective public universities are continuing to have major struggles, particularly enrolling, a sufficient number of African-American, American students for them to reach their educational goals and I would direct the court to page 26-28 of the University of California's brief.

Because what they say they're experiencing is that there is actually an inverse relationship between a in African-American students and their their sense of belonging and their sense of tokenism and isolation with how selective the university is.

And so I think that's.

Why you're seeing this wide spectrum of progress towards the day that we all are looking for where we do no longer have to consider uh can I ask a question following up on Justice Thomas, too about what diversity means does the University of North Carolina.

Consider one's religion.

We consider it as part of our holistic process, yes.

And so can you explain how that works? Yes.

And and this is helpful because this is the exact same thing that we do for all of our other diversity goals is if in context and an assessment of an individual application, applicant, uh, their religious background, or their religious experiences, uh, suggests that they might contribute something to our campus Community.

Then that can be considered a positive attribute that is considered in a holistic process.

Let them check a box though as to what religion they are.

We do not have them check a box.

How do you know then what religion the majority of applicants are so our analysis on our religious tolerance, climate is not pegged to the admissions process.

But we do have an entire process set up in a whole range of programs to try to ensure a an open intolerant religious environment.

And so we do do engage in the same kinds of surveys and qualitative analysis of our Campus Community.

And we find that we're finding that on the whole.

We feel we're meeting our goals.

We still have some struggles, particularly with Jewish and Muslim Students feeling like they belong on campus.

I do have two or three questions.

First, you're seeking educational diversity as I understand it at Harvard.

But my understanding correct me if I'm wrong is that you don't ask about, uh, religion and why the disparate treatment of religion and race.

One is what Evangelical Christians Catholics Muslims, add to the educational diversity at Harvard and other religious groups, added the diversity and why why not ask about that so Harvard greatly values religious diversity.

It is extraordinarily proud of the religious diver I'm, not going to track it.

If it doesn't ask, oh, how can it track it? How can it track it in the admissions process may happen by happenstance I'll? Let you finish okay.

Harvard is not tracking it in the admissions process other than to the extent that and many many students indicate what their religion is.

Harvard Harvard has not provided a thought it necessary.

And so far, as I know, nobody has suggested that Harvard has any need to provide a tip for religious diversity because the Harvard undergraduate population is so religiously diverse.

There are currently 47 I just want to say that our ministry Minister ministers to 27 different religious denominations.

Right? It was a factual question.

Uh, second, uh, I.

Think, you agree that the Baseline in our precedence operating within the confines of our precedence.

As you want us to do, uh is race neutrality and uh, We've allowed though limited consideration of race and educational and higher educational admissions as you've heard, uh, two limits on that as I understand it.

One, the adequate race neutral alternatives to the durational limits, the 25 years or whatever durational limit.

You think, uh works.

There, I just want to make make sure you agree with how I set that up in other words, race neutralities, the Baseline, there are two limits on the consideration of race, conscious educational admissions at colleges and universities.

Adequate, race neutral, Alternatives would be one a durational limit 25 or something else would be the other is that how you read our precedence I read your precedent in that I think you have other requirements too, which is it has to be flexible.

It has to be one factor among many.

You know, Etc et cetera.

But with the only I agree with your two categorizations, except that with respect to the durational requirements.

We understand it to be this.

The the inconsistent with the language from Justice O'connor's opinion that I quoted the court, which is that the narrow tailoring requirement.

And the race neutral, alternative requirement, strictly scrupulously and skeptically applied will tell us when race neutral, Ultra.

Okay.

And one last one, this picks up on Justice kagan's and Justice gorsuch's questions, I believe.

But on the adequate race neutral, Alternatives question, seems that Harvard would have to sacrifice, potentially something else to achieve what you think would be meaningful sufficient, racial diversity and I think the questions Justice, Gorsuch were well.

Why don't you have to then sacrifice those something else's to achieve the uh, if you're going to eat, um, otherwise use race.

Conscious means and there's.

No question that in other words, we I think that's a legal question, we're, gonna have to ultimately figure out does the University have to sacrifice those other things or not.

And so what this Court's precedents say, you know, Bocce, Rudder and Fisher are of course, race, you know, there are race neutral Alternatives that may require some sacrifices a university is not required to sacrifice.

You know so much that it changes the essential character, I, I.

Wish I had this Court's own words, but I think that's the test.

And that was certainly the test the district court, applied, that's, that's, suffices.

And you answered it.

Thank you.

Thank you.