Did Today’s Oral Argument Foretell the Endpoint of Racial Discrimination in Campus Admissions?

The oral arguments in both of today’s Students for Fair Admissions cases highlighted the offensiveness to the Constitution inherent in the use of race in university admissions. Six of the justices expressed skepticism toward such policies and did not get satisfactory answers from the universities’ counsel as to how the consideration of race could be limited once the door is opened to it. The justices also made significant points about how the consideration of race qua race fails to take into consideration other important aspects of diversity, be it socioeconomic status, religion, or other factors. Discussion of original meaning, an issue raised by justices on both sides, failed to rebut the evidence that the Fourteenth Amendment’s goal was to eliminate racial classifications in the law.

Justices Sotomayor and Jackson seemed to have trouble acknowledging that race is even being considered as a decisive factor or that it hurts anyone despite the zero-sum nature of admissions. The attorneys representing the universities unconvincingly tried to argue that the racial classifications do not have a meaningful effect on admissions . . . yet somehow they also are the only thing standing between the present situation and resegregation. As for the question of when would be the endpoint for such policies—the Court in 2003 expected there would be such an endpoint, and several of the justices asked about it today—the universities could not identify one, which is telling. Hopefully the Court will therefore answer the question by bringing about that endpoint itself instead of indulging continuing and widespread discriminatory practices by college administrators.