A majority of Supreme Court justices on Monday signaled that they’re skeptical about the use of race in college admissions—and part of their reasoning was tied to squash and crew, two sports that Justice Neil Gorsuch opined “predominantly favor white children.” The topic was at issue in unusually long oral arguments for cases brought against Harvard and UNC for alleged violations of Title VI of the Civil Rights Act and the 14th Amendment’s equal protection clause.
Much of Monday’s discussion centered on whether colleges should be able to apply admissions policies that categorize applicants in favored ways. Those categories include applicants’ race and whether they are recruited to play a sport or are children of donors, alumni or faculty. Students for Fair Admissions, the nonprofit that has sued Harvard and UNC, contends that these and other categories should be eliminated or reduced in impact. The nonprofit recommends shifting to a “race neutral” formula that relies on socio-economic status and would maintain diversity goals in terms of overall numbers of diverse students, with Hispanic and Asian American students gaining larger shares. The schools disagree, and Harvard maintains its percentage of Black students could drop from 14% to 6%.
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“Harvard argues,” Justice Neil Gorsuch noted, “that we have a compelling interest in diversity writ large and that this court has deferred to that interest, and among the diverse things that we need to have in our class are children of large donors … children of legacies and the squash team. I’m not making it up. It’s in the record.” Gorsuch, a graduate of Harvard Law School, then asked “to what extent should this court be deferring to those interests as part of its compelling interest analysis?”
Cameron Norris, who argued for SFA, said “not at all,” adding that “Harvard is not diverse at all besides its racial statistics.” Norris claimed that only 9% of incoming freshmen at Harvard are conservative and that 82% are wealthy. “There are 23 rich students for every one low-income student on campus,” Norris charged.
Squash was referenced several times, because the sport is sometimes associated with wealth and a lack of diversity. Crew and fencing were also mentioned; both sports are seen as similar to squash in that high school students who participate in them sometimes come from predominantly white and affluent backgrounds. Harvard has men’s and women’s varsity squash, fencing and crew teams.
“Let’s assume that a very wealthy university could pay for everybody to go and still increase its endowment,” Gorsuch hypothesized. “It’s a perpetual motion machine, Malcolm Gladwell called it. Let’s say if it just gave up preferences for donors’ children, legacies, and squash athletes, or maybe those who rowed crew, all of which tend to favor predominantly white children, and it could achieve whatever it deemed ‘racial diversity.’ Would it then be permitted to engage in race consciousness, or in that circumstance would you agree that that would not be narrowly tailored?”
In response, Harvard’s attorney, Seth Waxman, found the hypothesis problematic, insisting that the case is not about squash or crew but instead about an admissions policy that meets Harvard’s interest in a diverse student body.
Later in the proceeding, Justice Amy Coney Barrett struck a similar chord as Gorsuch. She referenced Grutter v. Bollinger, where in 2003 the Court allowed Michigan to consider an applicant’s membership in an “underrepresented minority group.” In Grutter, now-retired Justice Sandra Day O’Connor wrote that while “racial preferences” could be used in 2003, she thought that in 25 years they would “no longer be necessary.”
“What if,” Barrett asked U.S. Solicitor General Elizabeth Prelogar, “the structural barriers just make it impossible 25 years from now to sit here and say that without race conscious admissions, you know, especially if Harvard wants to keep everything exactly the same with respect to its other metrics, like SAT scores not dropping at all, and the museum and the squash team and all of that stuff. What if it’s just impossible? What if Grutter was grossly optimistic in what it thought was achievable?”
Prelogar, who defended Harvard’s admissions policy, said, “I think it would be wrong to suggest that those barriers are going to exist in perpetuity at all places and with respect to all schools.”
The Court will issue decisions on the Harvard and UNC cases by next summer.
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