No. 21-707
Oral argument transcript · No. 21-707 · October Term 2022
Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Patrick Strawbridge, Boston, Massachusetts, for the petitioner
- Ryan Park, State Solicitor General, for the respondent
- David G. Hinojosa, Washington, D.C., for the respondent
- Elizabeth B. Prelogar, Solicitor General of the United States, amicus curiae supporting the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this morning in Case 21-707, Students for Fair Admissions versus the University of North Carolina. Mr. Strawbridge. ORAL ARGUMENT OF PATRICK STRAWBRIDGE ON BEHALF OF THE PETITIONER
Patrick Strawbridge: Mr. Chief Justice, and may it please the Court: Racial classifications are wrong. That principle was enshrined in our law at great cost following the Civil War. A century of resistance to race neutrality followed, but this Court's landmark decision in Brown finally and firmly rejected the view that racial classifications have any role to play in providing educational opportunities. Since then, the Court has broadly enforced the Constitution's prohibition on the use of racial classifications. Whatever factors the government may use in deciding which jurors to sit, who you may marry, or which primary schools our children can attend, skin color is Official 1 not one of them. Grutter is a glaring exception to this rule. This Court should overrule it. First, Grutter is grievously wrong. Its view that the educational benefits of diversity justify racial classifications contradicts the Fourteenth Amendment's guarantee of equal treatment. It relied upon stereotypical assumptions that race is necessarily a proxy for one's viewpoint, and its purported limits are empty and self-contradictory, which is why UNC simply ignores them. Grutter also creates many negative effects. Some applicants are incentivized to conceal their race. Others who were admitted on merit have their accomplishments diminished by assumptions that their race played a role in their admission. And there is no evidence that after two decades Grutter has somehow reduced the role of race on campus. Finally, no one is actually relying on Grutter. The opinion forecast its own demise and it made clear that race-based admissions must be diminishing over time. But that has not Official 1 happened. UNC officials testified that they cannot imagine any scenario that would actually lead them to end their racial preferences. UNC claims license to use race in perpetuity, and the district court held that Grutter allows this. Racial classifications are wrong, and this Court should overrule Grutter.
Justice Thomas: Mr. Strawbridge, the Respondents argue that if you don't consider race, you won't be able to consider the whole person in the admissions process. How do you respond to that?
Patrick Strawbridge: I -- I -- this Court has always said that racial classifications are necessarily invidious. And, certainly, it is possible that -- that an applicant, for example, could write something in which race provides a context for their experience. But just considering race and race alone is -- is not consistent with the Constitution. It's also not consistent with other holistic approaches that this Court takes. There's great freedom, for example, to -- to strike a juror, but one thing you can't strike a Official 1 juror for in part is their race. You can -- in awarding child custody, the most holistic process perhaps known to law is the best interests of the child. But this Court has held race cannot be one of the factors you analyze in deciding that.
Justice Thomas: Well, I understand that, but on -- we're talking about an application to a university. If you don't include race -- I assume that Respondents think that by including race, it tells you something about a person. If you don't include that, then what do you include on the application?
Patrick Strawbridge: Well, you include their experiences. You include, you know, where they grew up. You might include their -- include their socioeconomic status. You include all sorts of things that actually lead to broader diversity of viewpoints. The assumption that race necessarily informs something about anyone's qualifications is antithetical to this Court's precedents and to our Constitution.
Justice Sotomayor: Can we stop a Official 1 moment? And I want to break down what you're talking about. Sometimes race does correlate to some experiences and not others. If you're Black, you're more likely to be in an underresourced school. You're more likely to be taught by teachers who are not as qualified as others. You're more likely to be viewed as less academic -- as having less academic potential. Even in your own arguments in your brief, you correlate race to lots of other things that are not necessarily caushal -- causal but which do correlate. How do you tease that out?
Patrick Strawbridge: Well --
Justice Sotomayor: How do you -- you want an admissions officer to say, I'm not going to look at the race of a child to see if they had all of those socioeconomic barriers present and, despite that, that they got very high high-school scores, maybe a little lower or a lot lower SAT scores, but I'm going to think about that? You're asking them to just shunt it aside?
Patrick Strawbridge: Yeah, racial -- racial classifications have always been Official 1 disfavored for a number of reasons. They are necessarily divisive. They -- carry stigmatic harm, both --
Justice Sotomayor: So why is it that in the Reconstruction era, just when the Thirteenth, Fourteenth Amendments were being passed, Congress spent a lot of money in trying to get Black children, whether they were children of slaves or free slaves, to be educated in integrated schools? They had a belief, didn't they, that integration itself provided a value?
Patrick Strawbridge: That is true. Of course, all -- most of the Freedmen Bureau's activities are entirely consistent with this Court's existing strict scrutiny rationale, even in the educational context, that remediation is an acceptable compelling interest.
Justice Sotomayor: But that's only remediation for what, for slavery?
Patrick Strawbridge: Well --
Justice Sotomayor: And these programs were made available to Black free children.
Patrick Strawbridge: Well --
Justice Sotomayor: Many of them. Official
Patrick Strawbridge: Well, and that's true. And also the Freedmen Bureau --
Justice Sotomayor: And the Berea Kentucky school that was supported by federal funds required a 50/50, 50 Black percent children and 50 white percent children.
Patrick Strawbridge: I'm -- I'm not sure that the sources that are cited in the briefs support that view. They -- there -- there was a desire to make the education at Berea open to all, but as far as we can tell, the actual policy was they did not make distinction among applicants by race. The only requirement from what we could tell is a willingness to actually be educated in an integrated and coeducational environment at Berea College.
Justice Sotomayor: So I'm --
Patrick Strawbridge: Berea College, of course, was also a private school.
Justice Sotomayor: Now you're assuming in your argument that race is the only factor that gets someone in to a school. Could you point to any application? I thought, under the Grutter -- Grutter framework, you can't use Official 1 race exclusively, but you can use it as one among many factors.
Patrick Strawbridge: Yes, and, obviously, we have quarrels with the logic of that. In a zero sum game like college admissions, if race is going to be counted, that means some people are going to get in and some people are going to be excluded based on race.
Justice Jackson: But -- but not the logic, the fact. What are the facts here about whether or not race is being used singularly to let people in?
Patrick Strawbridge: The -- the -- the -- the expert that UNC presented argued that 1.2 percent of the decisions were -- were influenced by race. We obviously had disagreements with its -- with its characterization of that, but given the fact that they receive 40,000 applications a year, that's hundreds if not thousands of applicants who are being affected by race every year. Our expert's testimony was that race made the difference in basically 700 applications each admission cycle.
Justice Sotomayor: That -- was that Official 1 accepted --
Chief Justice Roberts: Counsel, I couldn't see from your briefs what your position was on race-neutral alternatives. Do you think those are appropriate, even if the intent of the state in adopting them is to reach a certain level of minority students?
Patrick Strawbridge: Our position is that this Court has an established framework that it applies to judge facially neutral governmental action that's alleged to be racially discriminatory. If the only reason to adopt a particular admissions policy, if the sole exclusive reason was for racial diversity alone, we think that would probably raise problems under that precedent, but, of course, it's a fact-intensive inquiry under Arlington Heights, but --
Chief Justice Roberts: And I suppose, given that they are race-neutral, most of them would not be defended as for race alone.
Patrick Strawbridge: Well, and --
Chief Justice Roberts: If, for Official 1 example, socioeconomic status, maybe attendance at a particular school that's known to be --
Patrick Strawbridge: Correct, all of the race-neutral alternatives and -- and specifically the socioeconomic benefits in the top percentage programs, those can be justified on race-neutral means. They -- they increase socioeconomic diversity, they -- they ensure that people at underresourced schools have an opportunity to attend the university, it create geographic diversity.
Justice Kagan: Why is the question race alone? I mean, usually, when we would look to permissible versus impermissible purposes, we would not say, well, it's only constitutionally impermissible if it's one thing alone. We would say, if it's one thing at all, it infects a governmental action. So suppose that, like, there's a 10 percent plan or something like that, and part of the justification is socioeconomic diversity and another part of the justification is we'll also get more racial diversity in this manner. And -- and -- and that's -- you know, that's part of the purpose of the law. Official 1 I think that that's pretty true to experience, that part of the reason that these kinds of plans have been developed is that people have understood that they will work to create more racially diverse campuses. Is that permissible?
Patrick Strawbridge: Well, like I said, it -- it's a different analysis when the -- when the mechanism that's chosen is not a racial classification itself, but I do think that this Court's precedents --
Justice Kagan: Well, I guess the question is why -- why is that true. A lot of our constitutional doctrine suggests that it's not a different analysis. In other words, one way you can offend the Constitution is by using an impermissible classification. Another way you can offend the Constitution is by devising a proxy mechanism with the purpose of using -- of -- of -- of achieving the same results that the impermissible classification would.
Patrick Strawbridge: Right.
Justice Kagan: So the question, I suppose, is why -- I mean, I -- I -- I took your Official 1 answer, which I welcome, to be yes, of course, the 10 percent plans are constitutional. But I guess I wonder why, given our -- most of our constitutional doctrine, that would be so.
Patrick Strawbridge: Well, I'm not so sure that's the current state of the law, especially with City of Arlington. I think, under Mt. Healthy and its precedent, if the government can demonstrate that it would have adopted the -- the -- the facially neutral program anyway, then I don't think that there's liability for intentional racial discrimination in that case.
Justice Kavanaugh: So, if they're -- if you prevail here, let's say, and a university develops three race-neutral alternatives to consider in the wake of a decision here and they choose the one that's going to lead to the highest number of African American students and they choose that race-neutral alternative for that reason, is that okay?
Patrick Strawbridge: If that was the only reason that they were choosing it, I think that that would -- that would require, you know, obviously, an analysis of what the evidence that Official 1 was brought to bear in an Arlington Heights analysis. There's burden-shifting that occurred there.
Justice Kavanaugh: What if it's one of the reasons?
Patrick Strawbridge: Well, I think, if -- if they can demonstrate they would have -- they would have pursued that policy anyway, I think it's sufficient for them to escape liability.
Justice Kagan: Well, that really means it's not the reason at all. So you are saying, if the -- if -- if -- if that contributes at all to the decision-making, then that's impermissible?
Patrick Strawbridge: No, I don't think that's what I'm saying. I'm saying that -- that -- that if the only reason to do it is through the narrow lens of race and there is no other race-neutral justification for it that the government can come forward and demonstrate that would have led it to adopt that policy anyway, I think -- I think that that -- I think that's the only scenario where it would create problems under the Court's precedent.
Justice Sotomayor: But isn't that Official 1 what this plan in UNC already does? Race is never the determinative factor. That was a finding by the district court. Race alone doesn't account for why someone's admitted or not admitted. There's always a confluence of reasons. There are any number of Hispanics, Blacks, Native Americans who are not chosen by schools. So I'm not sure I understand how you're differentiating your answer.
Patrick Strawbridge: Well, I'll --
Justice Sotomayor: If -- if race is only one among many factors, how can you ever prove, given that the district court found against you, that it's ever a determinative factor?
Patrick Strawbridge: Well, I don't think there was a finding from the district court that it was never a determinative factor in any case, and -- and --
Justice Sotomayor: Well, what it found is you hadn't proved it was.
Patrick Strawbridge: No, I think the court acknowledged that race has an influence on 1.2 -- 1.2 percent of in-state decisions and Official 1 5.2 percent of out-of-state decisions. Now I think the court went out of its way to not specify in greater detail just how many of those were decisive, but I would suggest that that is a flaw both in the district court's reasoning and in Grutter in general in that it encourages and basically nullifies strict scrutiny in some ways when you have this many-factor analysis that makes it more difficult to see what effect the racial classification has had --
Justice Jackson: Can -- can I just ask you about that effect? Because I think we really have to drill down on that from a threshold jurisdictional standpoint. I think we have to understand whether race is being used in this context to give rise to an actual concrete particularized injury that would give the members of your organization standing to challenge the use of race in this context. And so I've been struggling to understand exactly -- this is sort of where Justice Sotomayor was coming from. I've been struggling to understand how race is actually Official 1 factoring into the admissions process here and whether there's any actual redressable injury that arises. So can you help us with that, figuring out how exactly does UNC's system work in terms of the use of race --
Patrick Strawbridge: Well --
Justice Jackson: -- and how your members are being harmed by that?
Patrick Strawbridge: So let me start with the legal question, which is concrete injury. Gratz establishes that -- that -- that the denial of an opportunity to fairly compete for admission when one of the factors that's used is racial classifications is sufficient to create concrete injury. There's no dispute that --
Justice Jackson: Except Gratz was -- Gratz was like a set-aside. It was a specific set of circumstances. You could see there that the race factor was creating an unequal playing field because of the way in which the program was structured. Here, I don't really see that happening because no one is -- first of all, the university is not requiring anybody to give Official 1 their race at the beginning. When you give your race, you're not getting any special points. It's being treated just on par with other factors in the system. No one's automatically getting in because race is being used. There's no real work that it's doing, separate and apart from the other factors in any different way, like it was in Gratz. And when you look at that case, it says specifically, when there's a set-aside kind of program, then we have actual injury that -- that gives rise to standing. But I'm not sure you have that here. So --
Patrick Strawbridge: Well, but even --
Justice Jackson: -- can you help me?
Patrick Strawbridge: I'm sorry.
Justice Jackson: Yes, please.
Patrick Strawbridge: Even -- even -- even Grutter establishes that a holistic admissions process doesn't make the injury go away.
Justice Jackson: But you've said Grutter needs to be overruled. So we can't -- I don't think we can use that decision as the basis for -- Official
Patrick Strawbridge: Well -- well, no, one of the --
Justice Jackson: -- standing.
Patrick Strawbridge: -- one of the problems with Grutter that I think illustrates this specifically is Grutter's suggestion that race can only be used as a plus factor and never a minus factor. But, as many of the dissenting opinions in that case observed and -- and cases from --- or opinions from this Court have since observed, that makes no sense in a zero sum game. If we are going to consider race and we argue that a racial classification, which is, you know, highly disfavored at law because of its necessarily invidious nature, is going to be used --
Justice Jackson: But -- but wait. I don't --
Patrick Strawbridge: -- then, presumably, it must be doing some work.
Justice Jackson: I -- I -- I actually don't think that that's the way standing ordinarily works, and I'm worried that you're asking us for a special standing rule.
Patrick Strawbridge: Well -- Official
Justice Jackson: That you're saying that we can challenge the use of race as a factor without explaining how it's factoring in and how that harms our members.
Patrick Strawbridge: Well, I --
Justice Jackson: So why is it that race is doing anything different to your members' ability to compete in this environment? They can still get extra points. You know, the points are not being tallied. There's no goal. There's no target. But, in any event, they can get points for diversity even in this environment. So why does having race as a factor harm your members in a redressable way?
Patrick Strawbridge: The record in this case is that UNC gives racial preferences to African Americans, to Hispanic Americans, and to American Indians. It does not give racial -- racial preferences to white applicants and to Asian applicants. Moreover --
Justice Jackson: Are you sure about that?
Patrick Strawbridge: Yes.
Justice Jackson: Because I thought Official 1 that was not a rule, that anyone could get a point for diversity, anyone could get a point for racial diversity, to the extent that the other factors in their application allow for it.
Patrick Strawbridge: No, the -- UNC -- and I think this is in the district court's findings -- specifically gives its racial preferences for what it defines as URMs, which are the three groups that I said. And, moreover, any effect of race in the process is going to give rise to injury because the injury that Gratz recognized and that -- and that Grutter did not hesitate in at least finding standing in that case and moving on to the merits decision is that you are being denied the opportunity to compete on a fair playing field, at least a constitutional playing field.
Justice Barrett: Mr. Strawbridge, can I take you back to Justice Sotomayor's question? She described an applicant who came from a -- an underprivileged school who maybe didn't have the best teaching, best opportunities to score well on the SAT. And I want to know whether in your view of the world, if an -- if a student wrote Official 1 an essay describing some of the experiences that Justice Sotomayor said, you know, I struggled with socioeconomic diversity, racial prejudice, things that shape who I am, in your view of the world, could a university take that into account without offending the Equal Protection Clause?
Patrick Strawbridge: Yes. I think this Court's precedents even note that the act of overcoming discrimination is -- is -- is -- is -- is separate and apart distinction from race, in part because any member of a race may be in a position -- or a member of any race might be put in a position where they feel somewhat isolated or somewhat different, but --
Justice Barrett: Okay. So I understood you telling Justice Sotomayor that you thought that would not be permissible. But that's not your --
Patrick Strawbridge: No, no. I think --
Justice Barrett: I misunderstood.
Patrick Strawbridge: -- I -- I meant -- I meant to say quite different. What we object to is a consideration of race and race by itself.
Justice Barrett: Race in a box-checking way as opposed to race in an Official 1 experiential --
Patrick Strawbridge: Which -- which -- which --
Justice Barrett: -- statement?
Patrick Strawbridge: -- which the record in this case is that they can give the preference based on the check of a box alone.
Justice Barrett: Thank you.
Justice Sotomayor: What -- where?
Patrick Strawbridge: Where?
Justice Sotomayor: Where?
Patrick Strawbridge: Well, they -- they use a whole -- they --
Justice Sotomayor: Show me -- show me one place the district court found that an applicant checking a box automatically gets a -- a greater point system.
Patrick Strawbridge: Well, I -- I did not say that automatically gets a point. They say that they can take race into account based on that information alone.
Justice Sotomayor: Right. But we still know that --
Patrick Strawbridge: The testimony is not necessary -- Official
Justice Sotomayor: But you're making assumptions with that, because I can look at something and say, okay, now let me read the rest of the application and see if that warrants that extra point. But where -- can you point into the record where merely checking the box, standing alone as one factor, got somebody in?
Patrick Strawbridge: Well, of course, there's an e-mail exchange in the record, some of which is sealed, but I think that the Court's familiar with its contents that --
Justice Sotomayor: That was one person and not the entire committee.
Patrick Strawbridge: It was a -- it was a -- I think it was a chat between three people --
Justice Sotomayor: Well --
Justice Jackson: Did that support each point --
Patrick Strawbridge: -- who were all admissions officers.
Justice Sotomayor: -- it's a 40-member committee.
Justice Jackson: -- as a result?
Justice Sotomayor: Or is that the Harvard case? I'm sorry. It might be the Official 1 Harvard case.
Justice Jackson: Did they --
Justice Kagan: May I go back to Justice Barrett's question and -- and -- and just make sure I understand your answer to it? You said not race in a box-checking way, but then Justice Barrett said race in an experiential way, and you said yes to that. And -- and you said, well, of course, you can always say that you've been subject to discrimination. And, certainly, being subject to discrimination is -- is one part of what it means to have race affect your experiences generally. I mean, what are you saying a college can look at and what are you saying a college can't look at when they're reading an essay about, you know, the experiences that -- that a person has had in their lives?
Patrick Strawbridge: Well, the -- well, the reason why race may -- may have some contextual relevance when you're evaluating an essay, right, a story about -- about being subjected to racial discrimination obviously indicates that the applicant has grit, that the applicant has overcome some hardship. It -- it Official 1 tells you something about the character and the experience of the applicant other than their skin color.
Justice Kagan: And --
Patrick Strawbridge: So that's what we object to.
Justice Kagan: -- so you said again being subject to discrimination. Are you conceding too that there are other aspects of racial identity that could form part of an essay that universities would want to look at? Or are you saying, no, this just has to be if you have complaints about racial discrimination?
Patrick Strawbridge: Well, no. For example, a -- a -- a student, you know, an Asian American student who took an active interest in perhaps, you know, traveling back to their grandmother's, you know, country of origin or somebody who, you know, was involved in some extracurricular activities with a particular, you know, interest in supporting, you know, Asian American students, for example, those kind of show dedication, they show extracurricular involvement, they show perhaps a global interest in the world. Official
Justice Kagan: Do we -- do we --
Patrick Strawbridge: There's all sorts of non-racial criteria --
Chief Justice Roberts: They -- They also --
Justice Kagan: -- vary a little bit --
Chief Justice Roberts: -- they also --
Patrick Strawbridge: -- those meet.
Chief Justice Roberts: -- they also show a pretty not very savvy applicant, right? Because the one thing his essay is going to show is that he's Asian American, and those are the people who are discriminated against.
Patrick Strawbridge: That's -- that --
Chief Justice Roberts: Because --
Patrick Strawbridge: Yes, that is true. And that's -- that's the record in both cases, is that racial preferences operate to the disadvantage of Asian American applicants.
Justice Kagan: Just --
Chief Justice Roberts: So it is the case that African American applicants can highlight that aspect of their background in Official 1 situations such as the one that you mentioned and that people reading that file in the admissions office can look at that and take that into account?
Patrick Strawbridge: Yes. What we object them taking into account is just race, independent of any of that kind of information.
Justice Jackson: But that -- but how are they taking in -- into account race independent of the rest of the information in a holistic review process? That's what -- so my other question was about this same thing, which is how is race being used in this process? You keep saying we object to the use of race standing alone. But, as I read the record and understand their process, it's never standing alone, that it's in the context of all of the other factors. There are 40 factors about all sorts of things that the admissions office is looking at. And you haven't demonstrated or shown one situation in which all they look at is race and take from that stereotypes and other things. They're looking at the full person with all of these characteristics. Official
Patrick Strawbridge: Yes. But -- but our point is that all those other characteristics are not barred by the Constitution, and the use of race as a classification is barred by the Constitution.
Justice Jackson: But it has to be used --
Patrick Strawbridge: That's what makes that difference.
Justice Jackson: -- doesn't it? I mean, just because somebody checks a box -- what -- what if they check the box and the university sees that but doesn't look at it, doesn't take it into account in any way in the application? Do we have a constitutional violation just because the student voluntarily -- voluntarily said, I'm an African American, but that never comes into play?
Patrick Strawbridge: If the university admissions process, you know, instructs readers not to take that into account or to not award, you know, any benefit toward admission on that basis, then that is not necessarily a problem.
Justice Jackson: No --
Justice Alito: Well, Mr. Strawbridge Official 1 --
Justice Jackson: -- no -- no -- no -- no instruction. It just never actually comes into play. Because, if you say that, what I think you're saying is that people have to mask their identities when they come into contact with the admissions office just on the basis of their difference --
Patrick Strawbridge: Well, I don't think --
Justice Jackson: -- if it never comes into play.
Patrick Strawbridge: -- I don't think this is a lot different than a couple of other criteria. For example, the -- the UNC's official position at trial was that gender is not a basis for admission, that -- that -- that admissions officers are not supposed to take gender into account. That doesn't mean that they're not aware that there are women applying, but the instructions are not to take gender into account. And -- and -- and, to my knowledge, we don't see a large effect at all suggesting that -- that gender is playing a role. But both experts in this case found Official 1 that race was, in fact, mattering to a number of applications. You can -- you can debate between our expert and their expert whether it's only 500 or it's 1700 or it's 2,000 applications a year, but it is having an effect. If it's not having an effect, they've spent an awful lot of time and money opposing the relief we're seeking in this case.
Justice Alito: Mr. Strawbridge, let me give you a hypothetical along the lines of some of what you've been questioned about already. Suppose that a student is an immigrant from Africa and moves to a rural area in western North Carolina where the population is overwhelmingly white. And the student in an essay doesn't say this, I was subjected to any kind of overt discrimination, but I did have to deal with huge cultural differences, I had to find a way of relating to my classmates who came from very different backgrounds. Would that be permissible?
Patrick Strawbridge: I think that that would generally be permissible because the -- the preference in that case is not being based upon the race but upon the cultural experiences Official 1 or the ability to adapt or the fact of encountering a new language in a new -- in a new environment.
Justice Kagan: The race is part of the culture and the culture is part of the race, isn't it? I mean, that's slicing the baloney awfully thin.
Patrick Strawbridge: Well, we could -- we could say the same in the jury selection cases. We could say the same in the child custody cases. There's still a -- a -- a -- a difference between using an express racial classification. When you use race, you are telling applicants that their race matters, that it means something. That is inherently divisive. It gets us further away from a world where the government treats race as irrelevant.
Justice Jackson: But they're offering it because they're saying the race -- that race matters to me. I mean, this is not a situation in which the university is asking or telling every applicant: Give us your race so that we can classify people, so that we can give certain people preferences. Official 1 The only reason why the university knows the race of any of these applicants is because they are voluntarily providing that.
Patrick Strawbridge: But it is making distinctions upon who it will admit at least in part on the race of the applicant. Some races get a benefit. Some races do not get a benefit.
Justice Gorsuch: Counsel --
Justice Sotomayor: Do --
Justice Gorsuch: Oh, I'm sorry, go ahead.
Justice Sotomayor: No, no, go ahead.
Justice Gorsuch: Our -- our -- our precedents, just turning to our precedents for a moment, distinguish on the one hand between racial quotas, which Justice Powell and Bakke said would be impermissible, with pursuing racial diversity and critical mass of different races on campus in Grutter, for example. How are we to think about distinguishing between those concepts?
Patrick Strawbridge: Well, so the racial diversity point is interesting because the Court's other precedents have rejected racial diversity as a compelling interest in the Official 1 employment context with -- in Wygant at least. It's rejected racial diversity as a relevant factor in K-through-12 education. So we think that -- that Grutter is an exception to that and those other cases are better reasoned in this point in terms of disfavoring the use of race by the government.
Justice Kagan: So, on your view, and I take this to be the purport of most of your briefs, not -- putting aside the last 10 pages or so -- but, in your view, it really wouldn't matter if there was a precipitous decline in minority admissions, African American, Hispanic, one or the other, you know, if -- I think there are some numbers in -- in this case, but, you know, suppose that it just fell through the floor. Would it -- it just -- you know, too bad?
Patrick Strawbridge: Well, I don't think that it's going to fall through the floor if the university is actually committed to the broader diversity it wants because it didn't --
Justice Kagan: Right. I know you think that. And there's been -- obviously, a Official 1 lot of the litigation has been about that, how much will it decline and your expert and their expert. But the logic of your position suggests that that really doesn't matter. I mean, the last 10 pages of your brief where you say is -- is -- is -- has there been narrow tailoring here, it matters in that 10 pages. But it doesn't matter if you're saying there's a categorical rule, no race shall be involved in admissions decisions, then it doesn't matter if minority enrollment or particular kinds of minority enrollment fall through the floor, does it?
Patrick Strawbridge: If the -- if the application process is open and that -- and that is a result of the criteria that the university has elected to choose and it's not discriminatory under this Court's other precedents, then -- then that is the -- that is the -- the educational decision the university has made. I doubt any university would ever make that decision. That has not been the experience, for example, in Florida, which is race-neutral, has very similar demographics to Official 1 UNC, and by UNC's own admission in this record, actually achieves better racial diversity, as well as 50 percent greater number of Pell Grants on campus.
Justice Kagan: Right. Well, that gets us back to this question of -- of -- of what universities can do with what purpose to achieve racial diversity, even without being explicit about racial classifications. But putting that aside, I mean, I -- I -- I -- I guess what I'm saying is your brief -- and this is very explicit in your brief -- is, like, it just doesn't matter if our institutions look like America. You say this on page 11 in your reply brief, and I guess what I'm asking you is, doesn't it? I mean, doesn't it? These are the pipelines to leadership in our society. It might be military leadership. It might be business leadership. It might be leadership in the law. It might be leadership in all kinds of different areas. Universities are the pipeline to that leadership. Now, if universities are not racially diverse and your rule suggests that it doesn't Official 1 matter, well, then all of those institutions are not going to be racially diverse either.
Patrick Strawbridge: I -- I don't --
Justice Kagan: And -- and I thought 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 -- as a people in all our variety.
Patrick Strawbridge: I -- I think that's right. And I think the reason that we think that and why that is a great American ideal is because we expect that the government is going to be open to everybody who wishes to apply and that because merit and your worth as a person and your value as a contributed -- contributory citizen is not correlated with your skin color. And so, naturally, a government that treats people fairly and that makes opportunity open to all will necessarily see racial diversity.
Justice Kagan: But, Mr. Strawbridge --
Patrick Strawbridge: And, indeed, that's been the experience of -- Official
Justice Kagan: -- you -- you -- you said, and I think you're right to say this, you said to one of my colleagues' questions, you know, if this didn't matter, they're spending an awful lot of time and money and -- and anxiety doing something that doesn't matter. So let's presume it does matter. Let's presume it does matter that these -- these programs have been understood to be necessary to ensure that these institutions have a certain level of racial diversity, and I concede what Justice Gorsuch says, that racial diversity and quotas, it's a -- it's a little bit mysterious, but have a certain level of racial diversity that will enable them to get the benefits of all our many different peoples and that enables American society generally to do the same.
Patrick Strawbridge: Well, because I think one of the problems with Grutter is that it suggests that this is somehow costless, that if it's one factor among many and we can't identify, you know, exactly how many points race is getting, although, obviously, statistical analysis does allow that -- us to do that at some point, Grutter says it's not that big of a Official 1 deal, it's always a plus factor and never a negative. But this is a zero sum game. That is one of the problems with Grutter, is that it suggests that the harm of racial classifications, which this Court have always recognized are inherent and invidious of themselves, can be -- can be -- can be, you know, hidden or pushed down as long as race is just one of many factors.
Justice Jackson: But that doesn't --
Chief Justice Roberts: Counsel, if you have -- I -- I thought your objection is also that the race-neutral alternatives -- you have to try race-neutral alternatives first. You don't think the university has, right?
Patrick Strawbridge: We do not think that the university has made a commitment to race-neutral alternatives. And we presented a lot of evidence on this case. And we do not think the district court's analysis is consistent with strict scrutiny even as Grutter requires it and certainly not --
Chief Justice Roberts: So, if -- if Official 1 they do -- if they cannot take the box being checked into account or -- or can't do that and do try race-neutral alternatives, is there any evidence in the record about what the results of those would be? In -- in other words, to take an example, if all of a sudden the number of essays that talk about the experience of being an African American in society rises dramatically, will the consequences of that be the same as if they're not being mentioned, but instead race is taken into account automatically?
Patrick Strawbridge: I want to make sure I understand Your Honor's question. Is -- is -- is --
Chief Justice Roberts: It might have been a little awkwardly phrased.
Patrick Strawbridge: I would -- I would, never suggest that. Is -- is -- is -- is the question as to whether or not there's some sort of cheating going on, or is the question whether the race-neutral --
Chief Justice Roberts: No, not -- not a bit. The question is -- the -- the -- the discussion has been about the dramatic Official 1 plummeting of the number of African American students that would take place if the practice of checking the box with -- with race is taken away. And my suggestion is, if that's not, then maybe there will be an incentive for the university to, in fact, truly pursue race-neutral alternatives, such as, you know, allowing, which I think would be allowed, students, applicants to indicate experiences they have had because of their race.
Patrick Strawbridge: I think that is -- is correct. And just so we're clear, there's a lot of -- there's a lot of room for UNC in particular to improve its socioeconomic diversity commitment. It claims to value this, but the preference at least according to our expert's testimony that it gives for socioeconomic status is lesser than it gives to race. Something like -- like the average median income in North Carolina is about $53,000 a year, but the average UNC student comes from a family making $153,000 a year, and at least at trial there was testimony from the Director of Official 1 Admissions that the percentage of first-generation college students and the students who were receiving scholarships under the Carolina Covenant, which is a socioeconomic benefit, had declined in recent years.
Justice Kavanaugh: Your position will put a lot of pressure going forward, if it's accepted, on what qualifies as race-neutral in the first place. You said socioeconomic is race-neutral. Top 10 percent plan, race-neutral. Is -- you want to respond to that?
Patrick Strawbridge: Well, I'm sorry, I -- I did not mean to interrupt. I just wanted to say that I actually don't think that's been the experience. There are nine states that have -- that have barred the use of race in their college admissions program. We're not aware of anyone who has challenged a race-neutral alternative on the ground that it somehow --
Justice Kavanaugh: Right. I'm just making sure what qualifies as race-neutral in the first place. What if a college says we're going to give a plus to descendants of slaves? Is that race-neutral or not? Official
Patrick Strawbridge: I think descendants of slaves is a very difficult question because it's so -- it's so highly correlated with race in the history of our country. I'm not sure that any college has proposed that kind of a preference. It would have to --
Justice Kavanaugh: Well, I know we have to think forward about what will happen if you prevail in this case, and that seems a potential, so I'm curious about your answer to that question.
Patrick Strawbridge: My -- my -- my instinct standing here is, if that were the only basis, then -- then that -- that -- that very quickly starts to look like just a pure proxy for race. It would obviously depend on the actual program as it -- as it was implemented.
Justice Kavanaugh: Could you give a plus to applicants whose parents were immigrants to this country?
Patrick Strawbridge: I think that you --
Justice Kavanaugh: Is that race-neutral?
Patrick Strawbridge: I think that if it -- if it -- if it is immigrants regardless of Official 1 country --
Justice Kavanaugh: Yes.
Patrick Strawbridge: -- and regardless of their racial descendant, I think that that is probably closer to being okay.
Justice Gorsuch: Counsel, what -- what did the evidence show in terms of race-neutral alternatives from your perspective?
Patrick Strawbridge: There were --
Justice Gorsuch: -- in terms -- would -- would numbers plummet?
Patrick Strawbridge: No. Following the analysis -- following the analysis that was used in the other case, we -- we presented a number of circumstances, some of which -- which assumed a holistic process, just a holistic process that was no longer putting a thumb on the scale for students of particular races. And it showed that you could get to the current academic credentials of UNC, average SAT and -- and GPA within, you know, 15 points, you could get very similar, you know, less than a 1 percentage difference in -- in -- in the individual racial breakdowns to the extent those are relevant, so equal or greater than overall Official 1 underrepresented minority representation, and, of course, socioeconomic diversity would increase significantly. I think it is telling in the district court's analysis that it gave absolutely little weight to the possibility of a socioeconomic preference. It suggested that that would create a kind of diversity that's different than what UNC prefers. And, of course, we think that's part of the problem.
Justice Barrett: Mr. Strawbridge --
Justice Sotomayor: So I looked at all of your simulations, every one of them. So did the district court. And in every one of them, white representation stayed the same or went up. And some minority groups increased, but others did not. Blacks decreased in every one of your stimulations. The district court also looked at your simulations and found that each and every one of them had fatal statistical flaws, not the least of which that you relied on unrealistic assumptions about the applicant pool. In one of them, the modified Hoxby simulation, which you seem to be relying on Official 1 here, assumes UNC could admit the state's 70 -- 750 highest-scoring, most socioeconomically disadvantaged public high school students. That all of them would apply, that all of them would accept is as unrealistic as you can get. So there isn't one stimulation that you put forth that achieved the numbers that are being achieved today. They are imperfect. We haven`t -- we have no racial quotas. We don't have proportionate representation. But show me a simulation in any of your two cases that reached the numbers for every ethnic group in the bottom.
Patrick Strawbridge: Well, of course, that suggests that the standard is a particular percentage of representation of the student body, which even Grutter purports --
Justice Sotomayor: No.
Patrick Strawbridge: -- to disclaim.
Justice Sotomayor: No. I'm just saying we know that representation for Asian Americans, for example, has grown dramatically over time. As their numbers in the population have increased, so have their admissions numbers. Official 1 But I'm just saying, if we don't have proportionality, and no one's seeking that because that would be a racial classification, if we have improvement, all I see in your models is that we step backwards, we don't step forward.
Patrick Strawbridge: I think I disagree with that for a couple reasons. First of all --
Justice Sotomayor: Well, the district court --
Chief Justice Roberts: Why don't you tell us what the reasons are.
Patrick Strawbridge: Well, first of all, the district court basically conflated the educational benefits of diversity, which is actually the interest that -- that Grutter recognizes, with raw representation on campus. And I don't think those two things can be tied, and I don't think there's any evidence in the record by UNC, which is supposed to bear the burden of proof under strict scrutiny, that -- that having, you know, a Black population on campus of 8.6 percent versus 8.4 percent results in fewer benefits of educational --
Chief Justice Roberts: Thank you, Official 1 counsel. You'll be able to return to Justice Sotomayor in just a moment. Justice Thomas, anything further?
Justice Thomas: No, Chief.
Chief Justice Roberts: Justice Alito? Justice Sotomayor?
Justice Sotomayor: Yes, just to finish that point.
Patrick Strawbridge: Yes.
Justice Sotomayor: We do know that when numbers decreased in schools like the University of California, University of Michigan, in the upper-tier schools in the -- in the Oklahoma system, that Blacks have reported feeling isolated and having their voices stifled there.
Patrick Strawbridge: Yes, although -- although the correlation that's offered in some of the amicus briefs breaks down if you actually look at the underlying information. Just to take California, for example, at UC Davis, which has African American representation, you know, several points lower than at -- at UC Merced, there -- there's less reports of isolation. And you can see that even at the UNC Official 1 campus. There are some students even under their policies today who are support -- who -- who report feelings of racial isolation. But Native Americans, who, of course, have a small percentage of representation on campus prepared to African Americans, report feeling less racially isolated. So I think the suggestion that that can be the standard by which we judge a race-neutral alternative is insufficient.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: This is a little bit off the track here, but you made a reference earlier in your remarks about gender differences. And there's a lot of statistical evidence that suggests that colleges now, when they apply gender-neutral criteria, get many more women than men. And assume that that continues to be true, so that using gender-neutral criteria, you know, men are 30 percent of a class or 35 percent. And a university said, you know, that's neither healthy for our university life, nor is it healthy for society, that men are so undereducated as compared to women. Could a university put a thumb on the Official 1 scales and say, you know, it's important that we ensure that men continue to be -- receive college educations at not perfect equality or -- you know, but, like, roughly in the same ballpark?
Patrick Strawbridge: Well, of course, you know, under -- under this Court's precedent with respect to the Equal Protection Clause, that is -- that is subject to a somewhat lesser level of scrutiny than racial classifications are. So even if they could justify them under this Court's equal protection jurisprudence, I don't think it follows that they can justify racial classifications where --
Justice Kagan: Yeah. I mean -- I mean, you're right about the levels of scrutiny, but that would be peculiar, wouldn't it? Like white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not?
Patrick Strawbridge: Well, of course, our position is that white men could not get a thumb on the scale. That sounds like a racial classification. Men could perhaps.
Justice Kagan: Men could? Official
Patrick Strawbridge: But not white men.
Justice Kagan: Oh. Uh-huh.
Patrick Strawbridge: Yeah. But the answer is, could you survive intermediate -- intermediate scrutiny in that case? I don't know, but we've never said that -- that -- that -- that gender differences -- at least the Court has never suggested that sex discrimination under the Equal Protection Clause rises to the inherent invidious level that racial classifications do. And this case, it's about racial classifications.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: Well, this Court in the Virginia Military Institute case said that gender would be an impermissible basis for discriminating against applicants there.
Patrick Strawbridge: Yes, and I -- I -- and -- and, obviously, the situation was somewhat different in that it was a total exclusion if I recall correctly in that case. But I -- I -- I -- I -- I do not want to concede that -- that there would ever be an appropriate Official 1 place to have a sex-based characteristic. I'm just noting it's different under the precedent than race.
Justice Gorsuch: And how about religion, for example? There's some evidence, for example, that Harvard adopted its holistic admissions approach in part because it was concerned by the burgeoning number of Jewish persons who were attending, and they were looking for a way to reduce the number of Jewish persons without resorting to a quota. At least that's what some of the amici tell us.
Patrick Strawbridge: Yes. I -- I mean, that -- that is the history, and I think it's -- it's an illustration why putting something in a holistic admissions process doesn't -- doesn't prevent the very invidious effects that this Court has always recognized with racial characteristics.
Justice Gorsuch: Then I want to ask you about Title VI -- Title VI in isolation. Put aside our precedent for the moment. Title VI says that no person shall be excluded from participation or be subjected to discrimination under any program or activity that receives Official 1 federal financial assistance. In Bakke, Justice Stevens argued that, whatever the Fourteenth Amendment may allow, Title VI does not permit the use of race. You didn't make much of that point in your briefs, and I -- I just wanted to understand why.
Patrick Strawbridge: I don't think it's necessary to make that much point in the brief because, in our view, at least within the educational context, there's really not a difference between how the Fourteenth Amendment should read and Title VI's prohibition should read. We understand that some people view the Title VI language as even more clear. We would obviously win under that view. But it hasn't -- it hasn't been briefed. And I don't think it can be justified as a route to decision here as some form -- some sort of constitutional avoidance because the constitutional question has been decided in Grutter. We submit it has been decided incorrectly. And so you wouldn't be avoiding a constitutional decision; you'd just be leaving, in our view, a bad decision on the books.
Justice Gorsuch: Thank you. Official
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: You're asking us to overrule Grutter, but first want to understand what you think Grutter itself means. It -- it had language in there about a 25-year limit. The decision was in 2003. The current admissions cycle is for the class of '27. It's going to be too late to do anything about that cycle. The next is the class of '28. When do you read or do you calculate, to the extent you consider it at all, the 25-year limit? How do -- and, more broadly, just how should we think about that sentence which was part of four important paragraphs in Grutter about the importance of race-conscious decision-making being time-limited and temporary?
Patrick Strawbridge: So -- so we do not understand the 25-year limit somehow to have been a -- a -- a -- a -- a hard-and-fast requirement. Certainly, different Justices of the Court in Grutter took differing positions as to -- as to whether it should be --
Justice Kavanaugh: So, do you think Official 1 it could go for 35 or 50 years then?
Patrick Strawbridge: Well, I think that the -- I think that the language in Grutter at least had an aspirational element to it, but it was aspirational for a reason. And Grutter definitely in those paragraphs that precede that -- that -- that clause make very clear that they want the use of race to be diminishing over time and they want colleges to be seriously looking at how to get away from race. The record in this case indicates that that's not actually happening. Indeed, the head of -- of UNC's race-neutral alternatives committee testified that if the -- if the -- if the racial distribution on campus was 20 percent African American, 20 percent Asian American, 20 percent Hispanic, and 20 percent Native American, that was still not sufficient to convince her that they would stop using race. The chancellor at the university said, if UNC had the highest level of minority representation in the country, that would not be sufficient to convince them that they should stop using race. Official
Justice Kavanaugh: Second question, again, a little off track here, but we're thinking about what would happen if you prevail in this case. There's an amicus brief from Catholic universities that say private religious colleges would have a RFRA or free exercise right to continue to engage in affirmative action because it's part of their religious mission. Do you have any views on that?
Patrick Strawbridge: I don't know that our -- that -- that -- that I have any specific views on that brief. I mean, there are some times at least historically there has been sometimes a conflation of race and religion. I think that some people would have thought that Harvard's policy back in the 1920s was a racial policy as opposed to a religious policy. There may be difficult questions there, but I think that in this case, there's no -- there's no suggestion that -- that -- that RFRA has any role to play, and we think the Equal Protection Clause dominates.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Official 1 Barrett?
Justice Barrett: Mr. Strawbridge, do you agree that universities have a compelling interest in the educational benefits of diversity writ large, not just racial diversity but having, you know, difference of genders, different religions, different viewpoints in the classroom because of the educational benefit of bringing different perspectives to bear on a question?
Patrick Strawbridge: I -- I don't think the compelling interest question can be answered apart from what the -- what the policy that's being considered is. In this case, we don't think it's an interest that is compelling enough to justify a racial classification.
Justice Barrett: I understand that. But do they have -- do you agree -- let's take the compelling away from it. Do you agree that they have an interest in?
Patrick Strawbridge: Sure, I'm -- I -- I -- I have no doubt, and I agree that universities have an interest in the broadly defined -- in achieving the kind of broadly defined diversity that is talked about sometimes Official 1 in Grutter and sometimes in the brief.
Justice Barrett: And how would you suggest that they go about achieving that? Like let's -- let's say that you prevail, but universities still have this interest in -- in assembling diverse classes, you know, full of students that bring different experiences and perspectives to bear, and they decide not to adopt a 10 percent plan. So I assume it's all done then in holistic review.
Patrick Strawbridge: Yes. And there's nothing wrong with holistic -- I mean, holistic review takes place today at colleges that do not use race as a factor in admissions. And there's no reason to assume and there's no evidence in the record that the students at those colleges are not receiving the educational benefits of diversity.
Justice Barrett: I guess -- I mean, I guess what I'm concerned about is if it puts a lot of pressure on the essay writing and the holistic review process. You could have viewpoint discrimination issues, I would think, depending on how admissions officers treat essays. Official 1 You could have free exercise claims, not by religious mission -- religiously affiliated universities who want to give bumps to, say, you know, LDS students, but, you know, if you have Harvard say -- saying, well, we want this many Jews, but we also want this many Christians, you know, and -- and, you know, this many Muslims in a classroom.
Patrick Strawbridge: Well, I -- I -- I -- I guess -- I guess we don't even understand Grutter in part to be suggesting that the interest in this broad benefit of diversity actually justifies kind of micromanaging the populations on campus in the way that you're suggesting. And I don't think that the universities are doing that with respect to socioeconomic diversity. At least if UNC has a cap on the number of -- of socioeconomically challenged students that they're willing to admit, they haven't -- they haven't said that. So I'm not sure that it follows that -- you know, under the scenario where -- where we prevail, that it's going to affect one way or another the holistic admissions process. Official 1 Florida is holistic. I believe the California system is holistic. I think Michigan is still holistic.
Justice Barrett: Thanks.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yes, so, two -- two questions. Is there any indication from this record that UNC is doing the kind of micromanaging you're talking about with respect to racial classifications? I -- I didn't see that they were shooting for a particular target or that there was a goal or that -- I -- I thought, in fact, that as the reviewers went through the process, they didn't even know how many other students of color had been admitted and, if they did know, they had to be recused. So they're not operating this system, I thought --
Patrick Strawbridge: That was --
Justice Jackson: -- to reach toward some sort of racial goal. Am I wrong about that?
Patrick Strawbridge: Well, that policy Official 1 was instituted after our lawsuit was filed. Before our lawsuit was filed, at least senior admissions officers who were reading files were allowed to see those --
Justice Jackson: So the policy is that they're not reaching toward some sort of goal?
Patrick Strawbridge: As a post-litigation, they -- no, I -- I -- I would not go -- go so far as to say that. And, in particular, I would -- I would look at the -- the race-neutral alternatives analysis that UNC's own expert proffered, and -- and this is actually throughout the record even in the admissions process --
Justice Jackson: All right. I have little time. I'm sorry. So --
Patrick Strawbridge: No, I'm sorry. I don't --
Justice Jackson: Yeah. Do you -- so -- but you say they've changed the process. But now at least they're not looking toward a goal of -- they're not race balancing in that same sentence?
Patrick Strawbridge: No. I think they Official 1 measure their standard as to what they could achieve by race-neutral alternatives by whether they can replicate the precise level of diversity today. So I think that is a form of --
Justice Jackson: All right. So let me ask you another question, because I take it that your position is that UNC is allowed to consider other non-race-based personal characteristics of individual applicants, like someone's status as a parent or a military veteran or a disabled person, and give pluses in the current holistic environment for those characteristics without running afoul of the Fourteenth Amendment. Is that right?
Patrick Strawbridge: I -- I -- that -- I I think that is generally correct as long as they're the criteria that is not walled off by the Fourteenth Amendment, it's appropriate.
Justice Jackson: They can -- they can get -- they can give pluses. And so what I'm worried about is that the rule that you're advocating, that in the context of a holistic review process, a university can take into Official 1 account and value all of the other background and personal characteristics of other applicants, but they can't value race, what I'm worried about is that that seems to me to have the potential of causing more of an equal protection problem than it's actually solving. And the reason why I get to that possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process, and I'm hoping to get your reaction to this hypothetical. The first applicant says: I'm from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to -- to do that, and given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school. The second applicant says, I'm from North Carolina, my family's been in this area for generations, since before the Civil War, but Official 1 they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family -- family background, it's important to me to attend this university. I want to honor my family legacy by going to this school. Now, as I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn't be able to because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, Official 1 just like the other person has their personal background family story honored, why is telling him no not an equal protection violation?
Patrick Strawbridge: Well, I think -- I think -- I think because, if -- if it is the racial aspect of the application, then that's -- equal protection requires that -- that people of all races be treated equally.
Justice Jackson: And -- and --
Patrick Strawbridge: Now, certainly, UNC shouldn't give a -- a legacy benefit if they don't want to give a legacy benefit. There's no obligation they do that.
Justice Jackson: No, but you --
Patrick Strawbridge: And, of course, a first-generation college --
Justice Jackson: I'm sorry, but you said -- you said it was okay if they give him a legacy benefit. And what I'm saying is that in almost exactly the same set of circumstances, a student or an applicant who is African American and who would like to have the fact that he's been in North Carolina for generations through his family and that they've never had a chance to go to this school honored and considered, and Official 1 it's bound up with his race, you say, I think, that he's not allowed to say that and that the university is not allowed to take that into account. And because it relates to race, precisely because it relates to race, I think you might have an equal protection problem in saying that he can't get credit for that when someone else can.
Patrick Strawbridge: Well, for purposes of the hypothetical, I am assuming that the only significant factor in that story happens to be the fact that -- that -- of the race of the applicant and that the race was previously barred from attending UNC. Obviously, nothing stops UNC from honoring those who have overcome slavery or recognizing its -- its -- its -- its past contribution to racial segregation. But the question is, does -- is that a basis to make decisions about admission of students who are born in 2003? And I don't think that it necessarily is. I don't think that the Equal Protection Clause suggests that it is. There are -- there are -- there are Official 1 many -- there are many factors in an application like that that might be appropriate to consider, including if they are first-generation college or including if they are socioeconomically depressed, but if the only difference is between a white student and a Black student, I don't think the Equal Protection Clause permits the admissions decision to hinge on that.
Chief Justice Roberts: Thank you, counsel. Mr. Park. ORAL ARGUMENT OF RYAN Y. PARK ON BEHALF OF THE UNIVERSITY RESPONDENTS
Ryan Park: Mr. Chief Justice, and may it please the Court: Diversity is our nation's greatest source of strength, but as our Reconstruction founders understood and our nation's history confirms, it also poses unique challenges to the American experiment. We live in a large and sometimes unwieldy democracy, and for that democracy to flourish, people of all different backgrounds and perspectives have to learn to live together and unite in common purpose. It was Brown's vision that education Official 1 could be the engine of our democracy, a place where students could prepare for the rights and obligations of citizenship in a diverse and inclusive setting. The University of North Carolina at Chapel Hill seeks to fulfill Brown's vision by assembling a student body that is diverse along the many dimensions that matter in American life, including race, but also social class, geography, military status, intellectual views, and much more. 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. The university pursues these interests in scrupulous compliance with this Court's precedents, which have consistently held for decades that seeking the educational benefits of diversity is a compelling interest of the highest order and that universities may consider all aspects of a applicant's background to build a thriving campus community. Official 1 The correctness of these precedents is confirmed by the historical record, which shows beyond doubt that our Reconstruction founders believed that race-conscious measures designed to promote an integrated learning environment were consistent with the original public meaning of the Equal Protection Clause. To be clear, UNC would like nothing more than to achieve its educational aims through race-neutral means. It has taken extensive efforts to do so and has seen steady and continuing progress toward this goal. But this progress has been halting, and the university retains a powerful interest in preventing the backsliding that would occur if this Court took away the power to decide this important social policy issue from the people of North Carolina. I welcome the Court's questions.
Justice Thomas: Mr. Park, I've heard the word "diversity" quite a few times, and I don't have a clue what it means. It seems to mean everything for everyone. The -- and I'd like you first -- you did give some examples in your opening remarks, Official 1 but I'd like you to give us a specific definition of diversity in the context of the University of North Carolina. And I'd also like you to give us a clear idea of exactly what the educational benefits of diversity at the University of North Carolina would be.
Ryan Park: Yes, Your Honor. So, first, we define diversity the way this Court has in this Court's precedents, which means a broadly diverse set of criteria that extends to all different backgrounds and perspectives and not solely limited to race. And there's a factual finding in this record Pet. App. 113 that there are many different diversity factors that are considered as a greater factor in our admissions process than race. We have a particular interest in recruiting and enrolling rural North Carolinians. In the last incoming class, four out of every 10 students who entered the campus doors were from rural North Carolina. One out of every 12 students is -- has a military affiliation, including the most veterans on campus since World War II. And so we value diversity of all different kinds in all the ways Official 1 that people differ in our society. On -- on -- on the educational benefits question, Your Honor, I don't think it's actually disputed here that there are real and meaningful educational benefits that come with diversity of all kinds. SFFA's own expert -- and this is on JA 546 -- conceded and agreed enthusiastically, in fact, on the stand that a racially diverse and a diverse -- diversity of all kinds leads to "a deeper and richer learning environment," leads to more creative thinking and exchange of ideas, and, critically, reduced bias between people of different backgrounds and not solely for racial backgrounds.
Justice Thomas: But you still haven't given me the educational benefits, the -- I didn't go to racially diverse schools, but there were educational benefits. And I'd like you to tell me expressly, when a parent sends a kid to college, that they don't necessarily send them there to have fun or feel good or anything like that; they send them there to learn physics or chemistry or whatever they're studying. So tell me what the Official 1 educational benefits are.
Ryan Park: So there's -- there's three main buckets, Your Honor, and the first and I think most pertinent to the question that you asked is the actual truth-seeking function of learning in a diverse environment. I would direct the Court to the Major American Businesses brief, which discusses a whole extensive, rigorous peer-reviewed literature that diverse groups of people actually perform at a higher level. So the most concrete possible scenario is -- is stock trading, and there are studies that find that racially diverse groups of people making trading decisions perform at a higher level, make more efficient trading decisions. And the mechanism there is that it reduces group think and people have longer and more sustained disagreement, and that leads to a more efficient outcome.
Justice Thomas: Well, I guess I don't put much stock in that because I've heard similar arguments in favor of segregation too. I'd like to go to something different, to deference in the area as of a compelling interest. This Court in Grutter did not Official 1 specifically put the test to Michigan as far as diversity being a compelling interest. I'd like you to explain why, in this area of strict scrutiny, we have a lower standard, we defer to the accused discriminator, but in the instance of sex discrimination at VMI, the accused discriminator was put to the test, and the Court did not defer to VMI, but it deferred to Michigan. Why that difference? And why should you not be treated the way we would treat someone in a Title VII case or a Title VI case and shift the burden to the discriminator to explain the conduct?
Ryan Park: Our understanding of the deference that this Court provides and the deference that we request is quite limited, Your Honor. We ask for deference in terms of our educational objectives and not the -- the legal question of whether those objectives constitute a compelling interest. And I -- I think that it's pretty clear to see why. I think that is similar to the VMI context. So, like I mentioned, we have made it a system-wide priority to -- Official
Justice Thomas: Did we -- did we -- the Court did not defer in VMI.
Ryan Park: So I think it did to the extent that it -- it held that the -- the interest in a rigorous military education is an interest that the -- that the institution had. And so, if UNC decided as a -- at a system-wide level to say we're going to completely change our educational mission and make it into an institution like VMI, I think the compelling interest analysis would proceed with that educational objective in mind. But -- but we do not take the position that the compelling interest standard is somehow subject to deference. That's a legal question.
Justice Gorsuch: Just to follow up on Justice Thomas's questions about diversity, again, these holistic admissions approaches seem to stem from the 1920s at Harvard, and they were used as cover for quotas for Jewish persons, who the university apparently felt had too many students attending. And I -- I guess I'm struggling still to understand how you distinguish between what this Court has said is impermissible, a quota, Official 1 with what you argue should be permissible going forward, which is diversity. How can you do diversity without taking account of numbers?
Ryan Park: So I think there's -- there's two separate points I'd like to make on that, Your Honor. So, on the -- the sordid history of the early holistic process, I don't think anyone has ever accused the University of North Carolina as having --
Justice Gorsuch: I'm not suggesting that.
Ryan Park: Yeah. And -- and -- we -- we took our cues from this Court from the Bakke decision and -- and from the Grutter decision and --
Justice Gorsuch: Oh, I understand that too. But I guess my question, again, just to get to the core of it rather than circling around it, is how can you do diversity, which that's what you're arguing for, without taking account of numbers?
Ryan Park: Our interest in what we believe that Grutter requires of us is individualized holistic review. And I think there's actually been a lot of misconception Official 1 that I heard in --
Justice Gorsuch: But, if you don't achieve -- you have to achieve diversity, though. That's the goal. So how do you do that -- again, last time I'll ask it -- without looking at numbers?
Ryan Park: We do so by looking at the individual applicant. We do not have some sort of racial target or a target for other diversity metrics, for example. We don't say we want to have 10 percent of our class be military veterans. We say we value this diversity interest and we're going to look at each individual applicant on -- on that basis.
Justice Alito: What is your goal and how will a court ever be able to determine whether your goal has been reached?
Ryan Park: Our -- our goal is to achieve the educational benefits of diversity. And I understand that that is a -- a qualitative standard that is difficult to measure, but I do not believe that a standard merely being qualitative means that it's -- it's not susceptible to -- to rigorous review. And if I could give an example. So we Official 1 are subject to a statutory mandate that we create a -- an open and -- and tolerant speech environment for all sorts of views, even views that many find disagreeable. And we engage in the same kind of analysis to measure whether we are meeting this standard. It's -- it's principally survey-based, as well as examination of objective criteria.
Justice Alito: Your brief repeatedly refers to certain students as members of underrepresented minorities, right? What does that mean? Why is that significant?
Ryan Park: So I think this is -- I think this is helpful because this pierces the main, I think, misunderstanding about how our process works. We do define certain groups based on their overall representation in the state of North Carolina. That's -- that stems from a consent decree that the University of North Carolina entered with the Reagan Administration.
Justice Alito: Well, I mean, this is really pretty simple. Suppose you assembled a student body in which the various racial groups coincide almost exactly to the percentage of Official 1 those racial groups in the general population. Would you say, okay, now we've done it, we've achieved diversity?
Ryan Park: No, Your Honor, and I don't think that we would say that we need to -- to reach those level -- levels either. I think the student intervenors will stand up and say that -- that we should be doing far more. But we are trying to comply with this Court's precedents, which require the -- the minimal consideration of race on a holistic basis.
Justice Barrett: This Court's precedents, I mean, Grutter also says -- sorry, let me put my readers on here -- you know, using racial classifications are so potentially dangerous, however compelling their goals, they can be employed no more broadly. Going down a little bit further, all governmental use of race must have a logical end point, reasonable durational limits, sunset provisions, and race-conscious admissions policies. And I gather, you know, Justice Alito's saying, when does it end? When is your Official 1 sunset? When will you know? Because Grutter very clearly says this is so dangerous. Grutter doesn't say this is great, we embrace this. Grutter says this is dangerous and it has to have an end point. And I hear you telling Justice Alito there is no end point.
Ryan Park: No, Your Honor, and I apologize if I gave that impression. So -- so three points on the end point. We enthusiastically embrace the durational requirement, and we have tried to do everything possible to adopt race-neutral alternatives from the time of Grutter to today to minimize our consideration of race. In a university where our endowment during the -- our endowment during the record was around $3 billion, we spent well north of a billion dollars on financial aid programs to try to recruit low-income students across the board. And I think that kind of that's the first-generation race-neutral alternative. Then the second are, to try to expand the pool, we have an incredibly extensive program where around half of our transfer students are -- come from community colleges -- Official
Justice Barrett: But, if I could just interrupt for one second, how do you know when you're done? You know, Justice Alito said, if you have exact correlations to the member -- to the -- the number -- the percentage in the population of a particular group, and you said you're not done then. So when would the race-conscious -- when would you have the end point? I -- I -- I --
Ryan Park: Well -- I see.
Justice Barrett: -- I appreciate that you're undertaking all those efforts, but when is the end point?
Ryan Park: I meant to respond to Justice Alito meaning that we do not need to reach that point for us to feel that we have met our diversity goals. I -- I mean, we are -- what we're doing today is we feel that we are achieving the educational benefits of diversity and we have --
Justice Alito: So it's not necessary, but is it sufficient?
Ryan Park: I think that in that scenario, it might be likely that our Official 1 qualitative process in terms of constant examination of our campus climate would -- would reach a point where we would feel that we had reached the educational benefits of diversity --
Chief Justice Roberts: But that's -- I'm sorry. Finish.
Ryan Park: Oh. So I just want to be -- be very clear on -- on the end point if I may. We think that the history shows that these programs can and do end. The early programs, as Justice Ginsburg has mentioned, principally -- many of them principally benefitted white women. The program in Bakke and the program -- federal contractor program this Court upheld in Fullilove explicitly included Asian Americans as among their beneficiaries. And we have reached a point now where we feel that we are able to minimally consider race and still --
Chief Justice Roberts: I don't see how -- I don't see how you can say that the program will ever end. Your position is that race matters because it's necessary for diversity, which is necessary for the sort of education you want. It's not going to stop mattering at Official 1 some particular point. You're always going to have to look at race because you say race matters to give us the necessary diversity.
Ryan Park: So I think there's two different questions there. We don't think that the compelling interest in diversity will ever expire. I think the question is whether race-conscious measures need to be taken in the admissions process to reach our diversity goals.
Chief Justice Roberts: You're going to have to check, right? You're not going to know whether you have a sufficient number of African Americans to give you the diversity you say is necessary if you don't look and check.
Ryan Park: I think there will be some attention to numbers and -- but the feedback loop between our assessment of our campus environment and the admissions process, we will celebrate the day when we get to the point where we have reached the point where we do now with our minimal consideration of race, which we say --
Justice Kavanaugh: Well, I think that --
Justice Sotomayor: Mr. Park -- Official
Justice Kavanaugh: -- the difficulty you're having answering some of these questions about end point were probably in the mind of Justice O'Connor when she wrote the opinion in Grutter for the majority and, as Justice Barrett said, indicated that these racial classifications are potentially dangerous and -- and must have a logical end point. 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 Grutter precedent because, as I understand your answer, you would extend it far beyond 25 years indefinitely, and that would be an extension, I think, but you can tell me how you read the 25-year language. But I think the reason it's there, and I think it's real important because there are four paragraphs leading up to that, is because of the difficulty you're having answering the question when -- without that time limit, when it would otherwise be achieved. Official
Ryan Park: So, of -- of course, we don't read the 25-year as some sort of strict expiration. And I -- I don't think on its face it was structured as such. Even Chief Justice Rehnquist in his dissent said this is not a -- a fixed deadline.
Justice Kavanaugh: Well, Justice Thomas --
Ryan Park: But the --
Justice Kavanaugh: -- Justice Thomas in 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.
Ryan Park: Yeah. So, Justice Kavanaugh, I think that every institution in 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 -- and we are at the point where I think the expert evidence here pretty definitively shows that we are able to meet what Official 1 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 strict numerical benchmark.
Justice Kavanaugh: One of the things the other side has emphasized is that in the period since Grutter, in the two decades since Grutter, 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 cannot 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 campuses. So, in some ways, the experience, they say, is relevant. I'd be interested in your response of how to think about that.
Ryan Park: Yes, I think that the experience of the University of Michigan system and University of California system helpfully Official 1 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 students, for them to reach their educational goals. And -- and I would direct the Court to page 26 to 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 -- an -- African American students and their -- 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 -- you're seeing this wide spectrum of progress towards the day that we all are looking for where we do -- do no longer have to consider race in admissions.
Justice Kavanaugh: Can I -- 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? Official
Ryan Park: We consider it as -- as part of our holistic process, yes. And so it's --
Justice Kavanaugh: Could you explain how that works?
Ryan Park: 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 in assessment of an individual application -- applicant, their religious background or their religious experiences suggest that they might contribute something to our campus community, then that can be considered a positive attribute that is considered in our holistic process, and --
Justice Kavanaugh: You have them check a box, though, as to what religion they are?
Ryan Park: We do not have them check a box.
Justice Jackson: But --
Justice Kavanaugh: How -- how do you know then what religion the majority of applicants are?
Ryan Park: So our analysis on our Official 1 religious tolerance climate is not pegged to the admissions process, but we do have an entire process set up and a whole range of programs to try to ensure a -- an open and tolerant religious environment. And so we do -- do engage in the same kinds of surveys and qualitative analysis of our campus community. And we're fine that -- we're finding that, on the whole, we feel we're meeting our goals, and we still have some struggles particularly with Jewish and Muslim students feeling like they belong on campus.
Justice Jackson: Is the checking of the box with respect to race voluntary? Is it something that students are required to do or something that they do on their own as a part of the process?
Ryan Park: It is entirely voluntary, Your Honor.
Justice Jackson: So you don't know what the race is of all of the applicants who are coming into your community from the admissions standpoint?
Ryan Park: That's correct.
Justice Jackson: And can you answer a Official 1 question about UNC's history of exclusion? You mention it several times in your brief, and I'd like to understand whether and to what extent that matters with respect to the diversity interests that you are asserting.
Ryan Park: Thank you, Your Honor. So we don't think -- we're not pursuing any sort of remedial justification for our policy, but we do think that our university's history is relevant to the diversity analysis in two distinct ways. So, first, we think it helps explain why the progress that we have been pursuing is perhaps behind the University of Oklahoma, for example. We have a unique racial history in our state. And all these programs take society as they find it.
Justice Jackson: I see. So that might account for why the sort of 25-year expiration deadline can't really be blanketly applied, because we start in different places with respect to how race has been considered to exclude people in -- in our various communities.
Ryan Park: Yes, I agree very much with that statement.
Chief Justice Roberts: Thank you, Official 1 counsel. Justice Thomas, anything further?
Justice Thomas: What's the difference between -- what is the percentage difference between a non-racial approach and the approach that you're taking?
Ryan Park: So the expert evidence in our case suggests that around 1.2 percent of the applicant pool as -- as a whole is affected by our race-conscious admissions program. And how that works out in terms of the relevant denominator is the number of underrepresented minorities on -- on campus, which is still fairly small. It's -- it's far lower, for example, than the number of rural students that we have or -- and it's -- it's even less than the number of first-generation college students that we have.
Justice Thomas: So --
Ryan Park: So it's around maybe 10, 15 percent that --
Justice Thomas: -- so do you think that 1.2 percent marginal difference is enough of a compelling interest to continue a race-based program? Official
Ryan Park: What we have tried to do is follow this Court's guidance, particularly in -- in Fisher II, but in other cases where the Court has said that it is a hallmark of narrow tailoring and, therefore, a test of constitutionality that we consider race only minimally. And, of course, seeking the educational benefits of diversity is also a continuum. We think that we would not face some of the struggles that we do in terms of admitting and enrolling underrepresented minorities if we considered it to a larger extent, but we have chosen to, in -- under this Court's precedents, be guided by this Court's precedents to -- to consider it only minimally.
Justice Thomas: So, if someone was bringing a discrimination case against the University of North Carolina and the racial difference composition was 1.2 percent, would they have stated a claim?
Ryan Park: I -- I see. Let me just make sure I'm understanding the -- if the -- well, so I think that there are -- I mean, it goes to the -- the issue of standing generally Official 1 and -- and what you need to show to --
Justice Thomas: No, just someone is bringing -- it's statistical and they say the difference between the admission of group A, racial group A, is 1.2 percent more than racial group B. Would that be enough for discrimination?
Ryan Park: I think it would be enough to state a claim that someone's candidacy has -- has been affected by a policy. I think one other thing to -- to point out, I think, is that there are other aspects of our policy, as I think Justice Jackson was -- was getting at, that have a reverse impact as well. And we haven't modeled this, but any diversity factor could have a disproportionate impact on the racial composition of the class in some other direction. And so I -- I do think this is one of the -- the major concerns that would arise if -- if Grutter is overruled.
Chief Justice Roberts: Justice Alito?
Justice Alito: I'd like your response to the argument that these racial categories are so broad that any use of them is arbitrary and, therefore, unconstitutional. Official 1 So what would you say to, for example, a student whose family came from Afghanistan and doesn't get in because the student doesn't get the plus factor that the student would get if the student's family had come from someplace else? So you would say to the student: Well, we don't -- we don't need you to contribute to a diversity of views at our school because we already have enough Asians. We have a lot of students whose families came from China or other Asian countries. And the student says: Well, you don't have anybody like me, I'm from Afghanistan. What -- what similarity does a family background to the person from Afghanistan have with somebody whose family's background is in, let's say, Japan?
Ryan Park: So, respectfully, what you're describing is the exact opposite of how our process actually works on -- on an individualized basis. This is -- we discuss this on page 11 of our brief. There was a Vietnamese student. The admissions office -- the admissions officer testified about a Official 1 Vietnamese student who immigrated to a remote part of North Carolina and thrived in that setting, and she testified, undisputed, that that was a favorable aspect of her application.
Justice Alito: Well, that's -- that's -- that's an individual aspect of the application and something that has to do with her experience. But what is the justification for lumping together students whose families came from China with someone -- with students whose families came from Afghanistan? What do they have in common?
Ryan Park: So I agree that that would be a strange rule. And that is not the rule that this Court has established. It would require --
Justice Alito: Well, then why do you have them check a box that I'm Asian? What do you learn from the mere checking of the box?
Ryan Park: So we think that it -- it depends on the individual circumstances of that person, but I am telling --
Justice Alito: So you don't need the -- you don't need the boxes at all?
Ryan Park: So I think that that is not Official 1 necessarily true on an individualized basis. So another example, so we -- again, as I discussed, we attempt very vigorously to recruit and enroll rural students, and we don't ask them to write their essay about how being from a rural background affects their, you know, sense of self and their experiences, but what we say is that person comes with something that we value, and --
Justice Alito: Well, they may choose to write about it, but what's the answer to my question? Why do you have these boxes? Why -- why do you give a student the opportunity to say this one thing about me, I'm Hispanic, I'm African American, I'm Asian? What does that in itself tell you?
Ryan Park: We think that it -- it can in context, on a individualized basis, perhaps not in every case but in some cases, give important information about where that person is coming from and what their experiences have been. And -- and really, this goes to the heart of the dispute that we have between the parties. So they say on page 53 of their brief Official 1 that race says nothing about who you are. And we just don't think that is true when you look at American society as it exists. We think that in the context of everything else that we know about an applicant, it can matter, not always, and it's not -- there's no automatic plus factor that's given, but it can matter what an applicant's racial background is.
Justice Alito: Let me just ask one more related question, and that is the circumstance -- and this is a real problem, and I've heard it described to me by people who face it. When can a student honestly claim to fall within one of these groups that is awarded a plus factor? So let's say the student has one grandparent who falls within that class. Can the student claim to be a member of an underrepresented minority?
Ryan Park: Yes, we rely on -- on self-reporting. And -- and we don't give any --
Justice Alito: One great-grandparent.
Ryan Park: If that person believes that that is the accurate expression of their Official 1 identity, I don't think there would be any --
Justice Alito: One --
Ryan Park: -- problem.
Justice Alito: -- great-great grandparent?
Ryan Park: I think --
Justice Alito: Are you going to make me continue to go on?
Ryan Park: Right, right, right. I think that as we go on, I agree that it would seem less plausible that that person would feel that this is actually capturing my true racial identity, but the same is true for any of the other diversity factors that we rely on.
Justice Alito: It's family lore that we have an ancestor who was an American Indian.
Ryan Park: So I -- I think, in that particular circumstance, it would be not accurate for them to say based on family lore --
Justice Alito: Well, I -- I identify as an American Indian because I've always been told that some ancestor back in the old days was an American -- was an American Indian.
Ryan Park: Yes. So I think, in that circumstance, it would be very unlikely that Official 100 that person was telling the truth. And the same is true for -- you know, we rely on self-reporting for all the -- the demographic and other characteristics that we ask for. And there's nothing special about the racial identification on -- on that score, Your Honor.
Justice Sotomayor: Do you get an automatic plus for checking a box?
Ryan Park: No.
Justice Sotomayor: That's the whole point, isn't it, that checking the box is not what gets you a point?
Ryan Park: Right. Right. And I think -- I mean, one helpful illustration of this point, Your Honor, is so SFFA's own expert, their own desk-style analysis finds that among the most academically qualified students, Asian Americans and white applicants actually have a higher acceptance rate than Black students. This is their own expert evidence. And this is discussed at Pet. App. 78. As the district court commented, that is a particularly strange result if their characterizations of our admissions process are accurate. Official
Justice Sotomayor: Mr. Park, on this issue of when this will end, nine states have chosen to rely just on race-neutral -- completely race-neutral, with race being not even a small factor anywhere. Not if all of them have been as a result of the people voting. It's been the systems themselves choosing this. Isn't that the case in Florida?
Ryan Park: That's my understanding. In Florida, it's an executive order. And -- and there are many states where it's institution by institution. So Georgia, for example, is --
Justice Sotomayor: Now even your adversary said he didn't see the 25 years as a set deadline. It was an expectation. What we know, we have nine states who have tried it, and in each of them, as I mentioned earlier, whites have either -- white admissions have either remained the same or increased, and, clearly, in some institutions, the numbers for underrepresented groups has fallen dramatically, correct?
Ryan Park: That's my understanding, yes. Official
Justice Sotomayor: All right. What we also know in those 20-odd years is that -- that racial disparities has grown dramatically as well. Segregation has grown. The disparity between incomes has grown. And so has the effects of these things in terms of the resources that underrepresented groups receive, correct?
Ryan Park: I -- I believe that that matches much of my understanding, yes.
Justice Sotomayor: And I understood that the district court found that UNC on a continuing basis reassesses its race-neutral factors and is constantly monitoring whether they've reached some form of -- of representation adequate for their system regularly, correct?
Ryan Park: Yes, yes. And --
Justice Sotomayor: And that was your point, which is we can't tell you it's going to end in 2029 or 2030, but we're not just assuming it will continue, we're looking at it regularly to see what the -- when it ends, correct?
Ryan Park: Exactly, Your Honor. And there really is a quite extensive infrastructure Official 103 that the university has established to continually monitor our progress on this score. I mean, a whole range of committees, but the -- the committees actually include some of the world's leading experts on doing these kinds of qualitative assessments. And so it's something that we are continually pursuing, and right now there are -- there are many other projects ongoing for us to try to reach the day where we can find a -- a viable race-neutral alternative.
Justice Sotomayor: Thank you, counsel.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch?
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, race is narrowly tailored. And 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 Official 104 players, we learned there are plus factors because those -- we need those too. 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 require it to do so?
Ryan Park: If I may, I'd like to just make a threshold point that those are not -- that doesn't match our facts --
Justice Gorsuch: Well, let's, I -- I understand, counsel. I understand the hypothetical is not your case and you don't like it.
Ryan Park: Right.
Justice Gorsuch: I got it.
Ryan Park: Right, but -- but --
Justice Gorsuch: Okay? But if you could --
Ryan Park: Yeah.
Justice Gorsuch: -- just take a shot at it.
Ryan Park: The -- the absolutely critical point if I could just very quickly is Official 105 that it's undisputed that legacy status is not a -- did not affect --
Justice Gorsuch: I understand, counsel.
Ryan Park: Yeah.
Justice Gorsuch: I do understand and I appreciate that. Okay? I've -- I've had to face many hypotheticals at a lectern I didn't like.
Ryan Park: Yeah.
Justice Gorsuch: 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 -- give checks to these kinds of persons not for their academic merit but because it 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 are going to donate an art museum, okay? Suppose the university could achieve race neutrally, just -- just suppose --
Ryan Park: Yeah.
Justice Gorsuch: -- race neutrally, Official 106 all of its diversity objectives, if it just eliminated those preferences, would strict scrutiny require it to do so?
Ryan Park: I would say yes if three things are true.
Justice Gorsuch: All right.
Ryan Park: First, that alternative would have to also match the compelling interest because, as I mentioned, this Court has never recognized a compelling interest in --
Justice Gorsuch: Is there compelling interest in a squash team composed of really good players or a new art museum? Is that what you're suggesting?
Ryan Park: No -- no, Your Honor, that's not what I'm suggesting.
Justice Gorsuch: Okay. So there's no compelling interest in those things you're telling us?
Ryan Park: 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 RNAs here and --
Justice Gorsuch: We'd have a great socioeconomic diversity, we'd have great Official 107 religious diversity, we just would have a crummy squash team and no art museum. Then what?
Ryan Park: Right. Right. And I think the other condition I would try to sneak in is that there wouldn't be a -- a material negative impact on the academic environment. And -- and -- and third is that --
Justice Gorsuch: So the GPAs are good.
Ryan Park: Right.
Justice Gorsuch: So these kids that are being admitted, same GPA, same SAT. Let's -- then what?
Ryan Park: 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.
Justice Gorsuch: Okay, thank you.
Chief Justice Roberts: Justice --
Justice Kavanaugh: How --
Chief Justice Roberts: -- Kavanaugh?
Justice Kavanaugh: -- how are applicants from Middle Eastern countries classified, from Jordan, Iraq, Iran, Egypt and Official 108 the like?
Ryan Park: 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 their particular country of origin.
Justice Kavanaugh: But, if they honestly check one of the boxes, which one are they supposed to check?
Ryan Park: 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-discloses -- self-discloses their country of origin, it would be considered in the same way that we consider any box that matches, 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 genuinely say that there would be a similar positive analysis in terms of the contribution that a student like that would contribute. And -- and we do track in particular, again, after the admissions process, religion and -- and country of origin and that Official 109 sort of thing.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: I just have one more question about end point. 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 Grutter. Grutter 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. And you've been pressed a little bit about what is the end point for you. This -- this distance of time, this 50 years since Bakke, suggests accurately, I think, that achieving diversity and diverse student populations in universities has been difficult. What if it continues to be difficult in another 25 years? I take it that you, because you've repeatedly said that the 25 years is aspirational and you told Justice Kavanaugh it wasn't a holding, that you don't think that University of North Carolina has to stop in 25 years, and at that 2028 mark. Official 110 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?
Ryan Park: I think that Grutter is helpfully self-limiting in that it requires aggressive and enthusiastic adoption of race-neutral alternatives. And -- and I think it's -- it's a dial, not a switch. And the progress that we've made since Grutter has shown that at -- at the University of North Carolina, we have dialed it down substantially. The -- the expert evidence in -- in that case, obviously, they're different institutions, was that around 70 percent of the underrepresented minorities in the institution at issue in Grutter, it was determinative that they had a certain racial background. And, here, the number is -- is far smaller, and we're -- we anticipate that we will be able to dial it down to -- to zero. And I think the reason why I -- I feel confident in that is because of Grutter's requirement that we continue exploring doggedly race-neutral alternatives. And even as -- since Official 111 the record has closed, the University of North Carolina has done so and is continually attempting to monitor it.
Justice Barrett: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yes. So we've heard a lot about checking the box in the context of the claims that are being made in this case. And I'm -- I'm just -- I'm concerned that at -- that I -- that I might be confused about the implications for that -- of that. So, first of all, this box is on the Common Application, right? It's not on North Carolina's form of any sort? Every student who fills out the Common Application form has the ability --
Ryan Park: Correct.
Justice Jackson: -- to -- okay. And so -- I -- have you seen one of these forms? Because I don't know if they're in the record in this case. Is the Common Application in the record somewhere?
Ryan Park: Yes. Yes, it is. I believe it might be completed applications, so Official 112 it might be the -- the sealed appendix, Your Honor.
Justice Jackson: All right. So we have this form that all students who are applying to any college can -- can use. And I understood the form was basically, you know, reduced to tell us about yourself, that you put all sorts of things. It's not a separate piece of paper that says this is about race. It's just: Who are you? And in the context of that, students check and write in all kinds of things. Am I wrong about that?
Ryan Park: Yes, the form has evolved over time --
Justice Jackson: Okay.
Ryan Park: -- and the -- the current form -- I can't say for certain the forms that are in the record, but the current form does allow for more self-description, so the student with the background that Justice Kavanaugh mentioned would be able to fully describe --
Justice Jackson: And so any -- any -- any form of race, it's not like we have to care so carefully about what are the categories in there and how -- anybody, a Caucasian student Official 113 could check Caucasian? We're just telling who we are as a general matter, right?
Ryan Park: Yes, Your Honor.
Justice Jackson: Okay. So everybody who wants to. Does North Carolina require anybody to fill out the box that has to do with race --
Ryan Park: No.
Justice Jackson: -- on this form? All right. So there may be some people who don't put anything for race.
Ryan Park: There certainly are, yes.
Justice Jackson: All right. Isn't the question then what North Carolina is doing with that information? Because, presumably, just knowing that you have people from different races applying to your school is not working an equal protection violation, is it?
Ryan Park: I -- I -- I agree with the sentiment behind that question. I think the language of racial classification has been used. And -- and it sincerely does not reflect how our admissions process worked -- works. It's race-consciousness. And so --
Justice Jackson: Right. So -- so Official 114 you're not, like, doing something different with the people who check the box -- box and put certain categories. Everybody then goes into the holistic process of looking at all kinds of other things so that race is never the only criteria that a person is evaluated with respect to, is that right?
Ryan Park: Absolutely. And -- and we think the district court made findings on this, in this regard.
Justice Jackson: And even if you check the box, I'm an African American, I'm a Latino, and all the other things, I live in this place, et cetera, et cetera, even if you check that box, in North Carolina's system, do you get a point automatically for having checked that box?
Ryan Park: Absolutely not. Absolutely not.
Justice Jackson: And is anybody who did check the box -- are they automatically entered or admitted into the university as a result?
Ryan Park: No, no. And, you know, our -- Official
Justice Jackson: All right. So final question, final question. Given a holistic review process like that, is there a risk of treating people differently by not allowing some applicants to talk about that aspect of their identity? I hear a process in which there's a form that says tell us about yourself, and people can put all sorts of things. I'm Catholic. I'm from, you know, Los Angeles. I'm a Latina, whatever. But now we're -- we're entertaining a rule in which some people can say the things they want about who they are and have that valued in the system, but other people are not going to be able to because they won't be able to reveal that they are Latino or African American or whatever. And I'm worried that that creates an inequity in the system with respect to being able to express your identity and, importantly, have it valued by the university when it is considering the goal of bringing in different people. Is that a -- is that -- is that a crazy worry, or is that something that -- that I should be thinking about and concerned about? Official
Ryan Park: Not at all, Your Honor, not crazy at all. We are very concerned with that issue, Your Honor, that if race is the one thing or if there are other factors that are subject to heightened scrutiny, if -- if only those factors cannot be considered in the admissions process, then anyone with a background or perspective that doesn't fit into one of these categories will have an advantage in our admissions process. We think, just as Mr. Strawbridge said, that it's a mathematical exercise. And if you artificially say that only certain people can't tell the university about some of their -- important aspect of their background, but underrepresented minorities are -- are barred from doing so or -- or, you know, all people can't discuss their racial background, then certain applicants will be subject to a disadvantage.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Hinojosa. Official 117 ORAL ARGUMENT OF DAVID G. HINOJOSA ON BEHALF OF THE STUDENT RESPONDENTS
David G. Hinojosa: Mr. Chief Justice, and may it please the Court: This Court must stand firm in its commitment to ensuring racial equality and equal opportunity by affirming the Bakke/Grutter framework. From the Sweatt and Brown cases through Bakke and Grutter, this Court has recognized the paramount roles that integrated education and cross-racial interactions play in building a true democracy, where pathways to leadership are visibly open to all qualified candidates. Brown attempted to shut down this nation's terrible caste system, but stark racial inequalities persisted and stunted this nation's growth. Enter Bakke and Grutter, which have helped universities open the doors of opportunities to highly qualified students of color, who are often overlooked in a process that typically undervalues their talents and perspectives. Racial diversity and its attending social and academic benefits help all students Official 118 to be better prepared to work and live together and make this nation better as a whole. We have made progress, but many colleges are not there yet, including UNC, which grapples with over 160 years of exclusion and its present-day effects. I welcome the Court's questions.
Justice Thomas: Mr. Hinojosa, if this were a Title VI case and there was an allegation of discrimination against the University of North Carolina, who would bear the burden of coming forward?
David G. Hinojosa: Is it within the strict scrutiny --
Justice Thomas: No, just Title VI, a claim of discrimination.
David G. Hinojosa: A normal claim of intentional discrimination, Your Honor?
Justice Thomas: Exactly.
David G. Hinojosa: I would understand that the plaintiff would have that burden to demonstrate.
Justice Thomas: To come forward initially. But then, when the plaintiff makes his or her showing, then what? What's the duty of the -- what's the burden on the administrator Official 119 -- on the accused?
David G. Hinojosa: It's not entirely clear from the case law that I'm aware of, Your Honor. Ordinarily --
Justice Thomas: Is there any case where the court has deferred to the university or to the alleged discriminator's policies?
David G. Hinojosa: So, in -- for example, you know, I don't know whether or not this has been answered directly in Title VI case law. Title VII case law --
Justice Thomas: Yeah.
David G. Hinojosa: -- Your Honor, yes, you know, then the burden would shift to -- in that case, it might be the employer.
Justice Thomas: What I'm -- what's interesting here is this is -- I cannot think of another area or another case where the Court deferred to the alleged discriminator on something as important as compelling interest. We don't do it in Title VI. We don't do it in Title VII. You have McDonnell Douglas. You have Arlington Heights. And this is a first. And what I'm asking you is, isn't it odd that you Official 120 have a framework in Grutter that defers on the critical issue in a case of compelling interest?
David G. Hinojosa: No, Your Honor. I think it's entirely consistent, you know, with this case -- with this Court's framework in judging strict scrutiny. The -- let -- let me make a couple of points first. One is on the discrimination point. This is not discrimination per se. The limited consideration of race in a holistic fashion as this Court has approved is a limited classification that is subject to strict scrutiny, but that whole strict scrutiny process is trying to filter out whether or not that we have a legitimate purpose for this or not and whether or not there's a compelling interest that may be sought and achieved, you know, through narrowly tailored means.
Justice Thomas: Let me -- let me ask more specifically: If this was a -- this case involved a school district in Virginia in 1960 that is alleged to be discriminating, would this Court defer to its assertion that the races do better if they're segregated?
David G. Hinojosa: Absolutely not, Your Official 121 Honor, but that's not this case. This case is about a limited classification involving a compelling interest --
Justice Thomas: I'm not -- I'm not --
David G. Hinojosa: -- that the Court itself has recognized.
Justice Thomas: -- that's not what I'm talking about. I'm talking about the Court's deference in that case, the Court would put Virginia to the test. In this case, it does not, and I'm asking you why the difference?
David G. Hinojosa: In this case, Your Honor, it actually is -- the -- the burden is that the university has a high burden of demonstrating its compliance with this Court's standard under strict scrutiny. The only narrow area that this Court's framework, as I understand it, has deferred to the university is establishing its objectives, but the whole framework still requires a well-reasoned explanation for seeking the -- for -- for its own compelling interest. It requires the university to demonstrate that there are no race-neutral alternatives that will work about as well. Official 122 And so that burden is still heavy on the university to demonstrate compliance with a strict scrutiny framework.
Justice Sotomayor: Mr. Hinojosa, in this case, the Petitioner never challenged that diversity was a compelling interest, correct?
David G. Hinojosa: That's correct.
Justice Sotomayor: Their own expert said that racial diversity was an important compelling interest, didn't it?
David G. Hinojosa: That's -- that's correct, Your Honor, in the trial below.
Justice Sotomayor: But it doesn't -- that deference, whatever it's defined at, didn't stop you or the state from meeting its burden of showing why that was a compelling interest, correct?
David G. Hinojosa: That's correct. And there's a 155-page opinion in this case based on the facts and based on significant analysis and testimony from the university administration --
Justice Sotomayor: The court below carefully examined whether the university -- university's articulated interest was clearly identifiable, measurable, and precise, didn't Official 123 it?
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: So it's not much deference. If -- I don't even know why that word is being used, correct?
David G. Hinojosa: That's correct, Your Honor.
Justice Sotomayor: Now, in terms of that information, you put on extensive evidence about the history of racism in UNC, correct?
David G. Hinojosa: That's correct, Your Honor, including a history of its own founding to help educate the owner -- the -- the children of slave owners.
Justice Sotomayor: And it went through de jure segregation way after Brown, correct?
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: Until the 1980s. But you didn't stop there, did you? You presented evidence about the continuing Confederate relics that exist on campus?
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: The continuing white supremacy marches that still go on? Official
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: The racial epithets that minority -- that underrepresented groups are experiencing to this -- to this day?
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: So, given that your adversary says that race can be used to correct past discrimination, why isn't it in this particular university appropriate to use race as one factor among many --
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: -- to address its history of racial discrimination --
David G. Hinojosa: And if --
Justice Sotomayor: -- and its continuing effects on campus?
David G. Hinojosa: Yes, Your Honor. If I understand correctly, we -- I -- I -- I do want to clarify one point, is that we are not suggesting, as I understand the university is not either, is that the limited consideration of race in this case is being used as a remedial order to address that. The reason for the importance of those present-day effects of that past discrimination Official 125 is articulated through the compelling testimony of the Respondent students in this case about how those present-day effects affect their own value on campus looking at these Confederate relics and the like and seeing these white supremacists come on to campus marching, which is certainly a First Amendment right, but it doesn't ignore the fact of how those students feel during those moments. But it also -- so -- and that in turn impacts their own education within the classroom. So it's not just standing alone that you have hypersensitive students, you know, reacting to these marches and -- and these other activities on campus, but it's also making sure that -- about the impacts in the classroom that it, you know, carries forward to and also how it impacts recruitment. When students of color, and they see less than a hundred Black males accepted and enrolled at UNC in the 21st Century, when they see that and they hear about all of these present-day effects going on, that impacts their own decision on whether or not they might apply, whether or not they might actually end up going Official 126 to the great university of the University of North Carolina.
Justice Alito: Counsel --
David G. Hinojosa: That, again, is --
Justice Alito: -- if all of the individual incidents and artifacts that you mentioned were not in this case and if the university were a state university that never practiced segregation, would you say that the case would come out differently?
David G. Hinojosa: It may, Your Honor. And that's how and why we should not have an across-the-board policy that all of a sudden jettisons the important limited consideration of race that this Court has approved.
Justice Alito: So you would perhaps endorse, say, a system in which a state university in a state that never had de jure segregation would be -- would -- would be prohibited from doing what North Carolina is doing?
David G. Hinojosa: Yes, because the -- the important point here is whether or not the educational benefits of diversity have been established by that particular university. And Official 127 so, here, at the University of North Carolina, of course, it matters a lot because it affects recruitment and retention and the like. But, at another university where it may not have been, you know, a part of its history, it's still -- the -- the important piece here is whether or not the university itself can establish its own educational benefits of diversity and satisfy that through narrowly tailored means. The University of Michigan in -- in the Grutter case, you know, is a good example of that. I -- I won't pretend to know the history of the state of Michigan, but -- and I know that they were fraught with, you know, desegregation problems themselves, you know, within districts, but whether or not that was a remnant of the state's own de jure segregation, I don't know, but that would be a good example.
Justice Alito: Thank you.
Chief Justice Roberts: Thank you, counsel. You've mentioned the benefits, of course, of diversity, but amici on the other side have argued that one consequence of the school's consideration of race is that it sends Official 128 the message that race is something you should consider down the line, in other ways, in student activities, other sorts of areas, that they get the message from the beginning that race counts, and they carry that forward into other areas where there may not have been a history of discrimination that would, in your terms, justify it. Do you have a response to that?
David G. Hinojosa: Yes, Your Honor. The research -- and there's some of the research that is shown in -- and I apologize if the Court isn't quite getting here, but what I understand the Court is inquiring about is, you know, some of the particular stigma that might be attached to --
Chief Justice Roberts: No, it was the fact that the school is telling students race matters in admissions and that the students may learn from that lesson that race should matter in other areas, where perhaps it doesn't have the same justification as it would have under your view on admissions.
David G. Hinojosa: Yeah. So two points, Your Honor. One is that there's no evidence in Official 129 this case of the University of North Carolina's own decision to enact race-conscious admissions had led to any negative consequences, much less the negative consequences that you've shared here. But there's also --
Chief Justice Roberts: Do you know -- this may be an unfair question -- is race a consideration in the formation of other types of activities that students are engaged in? I get the sense from the briefs anyway that race permeates a lot of what happens at the university. And --
David G. Hinojosa: Yeah.
Chief Justice Roberts: -- you -- you -- you're shaking your head in a way that you don't agree with it.
David G. Hinojosa: Well, Your Honor, you know, it is a bit of the -- reminds me of a storybook when I was a child, Henny Penny and the sky is falling argument, because they're blaming that just about everything is caused by race-conscious admissions. But, in fact, if you look at the research, for example, on the issue of stigma, both internal and external stigma -- and this is Official 130 referenced in the AERA brief -- it actually shows that race-conscious admissions programs at -- well, universities that have race-conscious admissions programs actually have lesser degree of stigma attached, you know, both internal for the student and external, what they're hearing from other students --
Chief Justice Roberts: Well, I -- I -- I --
David G. Hinojosa: -- than states with bans on --
Chief Justice Roberts: Counsel --
David G. Hinojosa: I'm sorry.
Chief Justice Roberts: -- I'm not talking about stigma. I'm talking about student groups taking its cue from the university and saying we ought to take race into account when we're -- whatever we're doing.
David G. Hinojosa: And -- and -- and, again, Your Honor, there's no evidence in this case of how that correlates to any consideration of race at UNC or any other university.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Official
Justice Thomas: Mr. Hinojosa, I may be tone deaf when it comes to all these other things that happens on campus, about feeling good and all that sort of thing. I'm really interested in a simple thing. How -- what benefits academically are there to your definition or your -- the -- the diversity that you're asserting specifically? I know kids feel -- you've -- you've got studies that show that people feel better and they don't feel isolated, on and on. I'm focusing on what you went to college to do, to learn something. Do you have anything that demonstrates that?
David G. Hinojosa: Yes, Your Honor. And -- and you're asking for the specific educational benefits of diversity?
Justice Thomas: Yes.
David G. Hinojosa: Those would include, for example, fostering innovation. And there's plenty of testimony in this case from chemists, professors at UNC, and from students themselves who have understood the importance of diversity in helping to foster -- to foster innovation. Official 132 To broaden perspectives, you know, engaging in students, and this is all the way -- harkens back to the Sweatt v. Painter case and the McLaurin cases, where they acknowledge that racial interactions and dialogue, you know, between students, you know, helps better prepare them for the world that they're going to work and live in. There is the reducing stereotypes. You know, for our own students that -- who testified in this case, it's played an incredibly important role in their education. And when you help reduce stereotypes in isolation, you end up impacting the educational environment for all students because they are sharing their perspectives. They're not necessarily feeling isolated as the spokespeople. And so those are among the several educational benefits of diversity that have been recognized and that we as the Respondent students support.
Chief Justice Roberts: Justice Alito?
Justice Alito: You make some very good points in your brief, but reading it, I was Official 133 struck by the fact that the word "Asian" does not appear one time in your brief. Yet, Asian Americans have been subjected to de jure segregation. They have been subjected to many forms of mistreatment and discrimination, including internment. So do you have anything to say this morning about the interests of students of Asian background and how your arguments impact them?
David G. Hinojosa: Yes, Your Honor. So two points. One is that discrimination against -- against Asian Americans is wrong. It's bad. We do not condone it at all. But, two, our brief actually reflects the record in this case. There were no claims developed by Petitioner involving the mistreatment or maltreatment of Asian American students. And I think that was one of the problems that happened with the first brief, is that they conflated their arguments against Harvard, which Mr. Waxman will, you know, adequately defend shortly, but those arguments conflated the issues. There's no racial balancing claim against UNC. There's no allegation of quota. Official 134 There's been a lot of talk about quota in this case. There's no claim about that. There's no claim against UNC involving the intentional discrimination against Asian American students vis-à-vis white students or other students. So that record actually doesn't exist.
Justice Alito: So what is your response to the simple argument that college admissions are a zero sum game? And if you give a plus to a person who is an under -- falls within the category of underrepresented minority but not to somebody else, you're disadvantaging the latter student?
David G. Hinojosa: And -- and, Your Honor, you know, that's a -- that's an excellent point, but the record actually bears out about how -- in this case, how the holistic admissions plans does end up operating. And it is where an individualized consideration is being made on a student's own talents, on a student's own achievements --
Justice Alito: So you're -- you're saying --
David G. Hinojosa: -- and their own challenges. Official
Justice Alito: -- you're saying that the -- that race in and of itself has no effect in -- at the University of North Carolina?
David G. Hinojosa: Absolutely not, Your Honor. I'm -- I'm saying --
Justice Alito: Okay. Then you would have no objection to an opinion from this Court saying you may not consider race; you may consider other things, but you may not consider the mere fact of race, period? You would have no objection to that?
David G. Hinojosa: Your Honor, I -- I don't know if I'm answering your question with a negative and a double negative here, but I do want to make clear that we fully support the limited consideration of race as it has been authorized by this Court.
Justice Alito: Well, then I -- I just don't --
David G. Hinojosa: Again, it is only on an individual --
Justice Alito: -- I don't understand your answer. Either -- if it's irrelevant, then you shouldn't care whether it's -- it's ruled out. Official
David G. Hinojosa: And we're not arguing -- if I'm articulating that, Your Honor, I'm not meaning to. We certainly believe that race within the context of an applicant may be considered as a plus factor. That's not only in this --
Justice Alito: Race in itself may be considered a plus factor?
David G. Hinojosa: Yes, Your Honor.
Justice Alito: And, therefore, those who don't get the plus factor have what is essentially a negative factor. They're not the --
David G. Hinojosa: No, Your Honor.
Justice Alito: -- it's not the same thing?
David G. Hinojosa: No, Your Honor, it's not because it's looking at the whole applicant as they apply within their whole application and their resume, et cetera.
Justice Alito: Suppose you have a race, two people are in a race, and you give a plus factor to one of the runners, so that runner gets to start -- well, if it's 100 yards -- a 100-yard dash, let's say he gets to start Official 137 five yards closer to the finish line. The one who doesn't get that plus factor is disadvantaged, right?
David G. Hinojosa: That would be in that case, but that case is not here. There are no bonus points that are provided to any applicant at the University of North Carolina. That is fully prohibited by this Court's decision in Gratz, and we're not suggesting that it should be reinstituted.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Counsel, a race is sort of an artificial creation, right? It measures how fast you can go from point A to point B, correct?
David G. Hinojosa: In some respects, yes, Your Honor.
Justice Sotomayor: All right. But what colleges are doing is not saying -- they're not looking at the runners when putting them in this race; they're looking at the applicant, at the student as a whole measure, correct?
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: And if we said Official 138 that applicants from white schools can start here, if applicants from socioeconomic schools don't start at the same place, you're going to push them back, right?
David G. Hinojosa: Yes, Your Honor.
Justice Sotomayor: So what the schools are doing is looking at all the factors to try to put the students at the start as equals, correct?
David G. Hinojosa: That's correct, Your Honor.
Justice Sotomayor: And race is not defining in that it's not the one factor in any application that makes a difference?
David G. Hinojosa: There is zero evidence of race playing a decisive factor for any applicant. There is zero evidence of any -- of any student who was accepted under the race-conscious admissions plan regardless of race. There is zero evidence of any -- of -- of any student being penalized for their race or that that student, if they were admitted, that they were not qualified. They all qualified on their individual merit.
Justice Sotomayor: Thank you, Official 139 counsel.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch? Justice Kavanaugh? Justice Barrett?
Justice Barrett: One question. One -- one difference between your brief and your position and University of North Carolina's is that from the student's perspective -- and you were getting at this in some of your answers to Justice Sotomayor early on about Confederate statues and the presence of white supremacist groups -- is that from the student perspective, you know, students -- the educational benefit to the students might be in the form of counteracting feelings of isolation, sticking out, not being supported. In light of that, I'm wondering if you have anything to say about affinity groups and affinity housing? I think one thing at least insofar as I'm aware at the time Grutter was decided and certainly Bakke, that kind of a phenomenon where you have groups, say, where, you know, Black students and allies can live or, you know, Black Official 140 student groups, same for, you know, Hispanic groups, et cetera, was not a phenomenon that was around then. And -- and I think one of the benefits is that it allows minority students to band together to reduce some of the feelings of isolation that you've been talking about. Do your clients have a position on that and whether that would be -- because whatever we say or however broadly we wrote this opinion, that rationale about the educational benefits of diversity presumably might have some bearing on those questions that are post-admission questions?
David G. Hinojosa: Yes, Your Honor. So, you know, those -- those do invite, you know, very difficult questions. And I think that's how and why a potential color-blind ruling from this Court, you know, may disrupt things even further, but also about how, you know, certain conditions may apply on a case-by-case basis. So I may not be making too much sense with what I just said there, but, you know, in terms of affinity groups, for example, research shows that affinity groups have incredible Official 141 benefits not just, you know, for its own members but in helping the broader community understand, for example, you know, racial and cultural issues, you know, that they may -- might raise. It's not my understanding that there are any affinity groups, especially, for example, you know, Black student associations that --
Justice Barrett: I'm really thinking --
David G. Hinojosa: -- exclude any students.
Justice Barrett: -- mostly about affinity housing. And I -- I understand Chapel Hill does not have it, but UNC Wilmington does. Would your clients have a position on affinity housing?
David G. Hinojosa: I -- I -- I do not know, Your Honor.
Justice Barrett: Okay. Thank you.
David G. Hinojosa: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Can I just quickly return to Justice Alito's hypothetical, which I Official 142 think is a little bit helpful in trying to pinpoint a problem that I've been having. It seems from the race hypothetical that if there was only one basis for giving someone a boost and that basis was race, then I see disadvantage, absolutely, to anyone else who's not an underrepresented minority who can get that boost. But I understood that we have here a program in which there are at least -- at least 40 different bases for being able to get a boost and not everybody who is an underrepresented minority gets a boost. So it's really hard to figure out if anyone is being disadvantaged in a system like that, and -- and that's where I was worried about standing, because I'm trying to understand how the system is operating to actually advantage minorities in a way that is harmful to anyone else in this system.
David G. Hinojosa: Yeah. And I think that attributes to the careful cue that UNC has taken to this Court's decisions in Fisher II, making sure, you know, universities find themselves in this Goldilocks problem about, you know, Official 143 considering it too much or too little. The university --
Justice Jackson: But there are other considerations is the point. Everyone --
David G. Hinojosa: Yes.
Justice Jackson: -- everyone can get a boost for all sorts of reasons. Minorities don't automatically get a boost under this system, so it's hard to know whether anyone's being disadvantaged from the mere fact that a minority could get a boost in this environment, right?
David G. Hinojosa: That's right. And the evidence also bears it out at Petition Appendix 78, where the evidence showed that hundreds of white students with lower combined GPAs and SAT scores were admitted ahead of higher-performing Black students, Latinx students, who went to UNC. And I think that bears the hallmark of this -- the type of individualized consideration that this Court wanted.
Chief Justice Roberts: Thank you, counsel.
David G. Hinojosa: Thank you.
Chief Justice Roberts: General Official 144 Prelogar. ORAL ARGUMENT OF GEN. ELIZABETH B. PRELOGAR FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
Elizabeth B. Prelogar: Mr. Chief Justice, and may it please the Court: For decades, this Court has rightly recognized that student body diversity is a compelling interest that can justify limited consideration of race in university admissions. That holding recognizes a simple but profound truth: When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens, and better leaders. That truth is vitally important to our nation's military. Our armed forces know from hard experience that when we do not have a diverse officer corps that is broadly reflective of a diverse fighting force, our strength and cohesion and military readiness suffer. So it is a critical national security imperative to attain diversity within the officer corps. And, at present, it's not possible to achieve that diversity without race-conscious Official 145 admissions, including at the nation's service academies. The military experience confirms what this Court recognized in Grutter, that in a society where race unfortunately still matters in countless ways, achieving diversity can sometimes require conscious acts by our leading educational institutions. The Court's precedents strike a careful balance. Race can be considered if truly necessary but only as one factor in a holistic admissions process that prioritizes and values diversity in all of its dimensions. The Court should adhere to that balance today.
Justice Thomas: Once again, would you tell me specifically what is included in diversity for the purposes of education, achieving educational benefits?
Elizabeth B. Prelogar: Yes, Justice Thomas. And if I could, I'd like to use the service academies as an example here and explain to you the concrete educational benefits the service academies are seeking to obtain through their use of race-conscious admissions, and it really falls into two separate categories. Official 146 One is the suite of benefits that the Court's precedents have already recognized, things like increasing cross-racial understanding, which can have direct impacts on challenging stereotypes and assumptions and leading to positive developments with cognitive development that can be perceived as early as a student's second year in college. It can include things like reducing a sense of racial isolation and alienation, and that has proven educational benefits as well in terms of encouraging greater participation by minority students in a classroom environment. And then the second category that I would point to, and this traces directly from Grutter as well, is the Court's recognition that in order to train a set of leaders with legitimacy in the eyes of the public, it is necessary to have our leadership broadly reflect the diversity of our country. And that is a critically important interest in the military because we have had experiences in our past where the officer corps and its racial composition did not reflect the diversity in enlisted service members and that Official 147 it caused tremendous racial tension and strife. So that is the -- the set of benefits that the service academies are seeking to obtain.
Justice Kagan: And -- and why can't you do it through race-neutral means? Because I think everybody has agreed, all our cases indicate that race-neutral means are better if one can achieve those kinds of objects that you were talking about that way. So why -- why can't you after 20 years?
Elizabeth B. Prelogar: It's absolutely correct that it's incumbent on universities and on the service academies to take account of race-neutral alternatives and to put those into practice where they can achieve diversity. And that's what the service academies are doing. They have done things like trying to bolster outreach efforts to underserved communities, to try to solicit additional nominations from congressional districts that have traditionally sent fewer cadets to the academy. They've looked into other alternatives, like socioeconomic preferences, Official 148 but West Point discovered that that would actually increase the number of white men at the academy. And other race-neutral alternatives just don't work in this context for the service academies. For example, a top 10 percent plan wouldn't work because the service academies have to draw from a nationwide applicant pool, and they also have to prioritize and value other characteristics, like physical fitness and leadership potential. So I can't say that we are able to get there all the way right now with race-neutral alternatives. That's what the service academies have seriously studied, but we are trying to make progress toward that goal.
Chief Justice Roberts: General, you have emphasized the service academies today and you did in your brief, and government counsel in Grutter did as well. Are you linking yourself to Harvard and UNC? In other words, you rise or fall with their case?
Elizabeth B. Prelogar: Well, Mr. Chief Justice, we certainly think that it's critically Official 149 important for universities throughout the nation to be able to prioritize the educational benefits of diversity, and the ROTC programs are also a compelling interest for us here that exist at those civilian institutions, but I guess, if what you're asking me is whether we think the military has distinctive interests in this context, I would say yes. And I think it's critically important for the Court in its decision in these cases to make clear that those interests are -- are, I think, truly compelling with respect to the military.
Chief Justice Roberts: So, in that situation, I suppose it depends how significant you think those distinctions are, it might make sense for us not to decide the service academy issue in this case?
Elizabeth B. Prelogar: Well, I -- I would certainly ask the Court to take account of those distinctive interests and -- and I think to recognize the compelling interest and the critical national security interests that I think --
Chief Justice Roberts: I guess I'm Official 150 saying I would have thought that you might want to distinguish yourself in order to preserve arguments that are particularly applicable, if there are such arguments, to the service academies, rather than take the position here, which is you're going to be bound by whatever we say with respect to the other universities.
Elizabeth B. Prelogar: Well, it is critically important to the military to be able to achieve diverse student bodies in the service academies, but it's also critically important, because, actually, more officers come from ROTC programs, to try to protect and preserve space for universities to also achieve the educational benefits of diversity and provide the paths to leadership that inhere in those programs as well.
Justice Alito: What about a college that doesn't have an ROTC program?
Elizabeth B. Prelogar: I'm sorry, Justice Alito, I didn't hear that.
Justice Alito: I'm -- yeah. What about a college that does not have an ROTC program? Would a -- would a plan that would be permissible in a -- in -- at a college that has Official 151 a program be impermissible at the latter, at the one that doesn't have the ROTC program?
Elizabeth B. Prelogar: We're not asking the Court to draw that distinction. And our interest here, I think, does extend more broadly to other federal agencies, to the federal government's employment practices itself, and to having a set of leaders in our country who are trained to succeed in diverse environments.
Justice Alito: Well, then I don't understand the relevance of what you're saying about the link between college education either at a service academy or a school with an ROTC program and the needs of the military if -- if it doesn't matter whether the school has no ROTC program and therefore trains no officers.
Elizabeth B. Prelogar: Well, Justice Alito, I was trying to focus on the specific question I understood the Chief Justice to be asking about the military's critical interest in this context and just trying to make the point that it's not just confined to the service academies. But we believe deeply in the value of diversity and in universities being able to obtain the educational benefits that correlate Official 152 with diversity.
Justice Alito: Well, what you say about the military is something that we have to take very seriously. You represent the entire executive branch, including the military, and we have to presume that you are reflecting the views of the military. But what do we do with the fact that the United States was on the opposite side in the Harvard case when the case was in the lower court? And what do we make of -- of the arguments that were made by your predecessor in Grutter? Were they not -- were they insensitive to the needs of the military? Only -- only you have accurately represented the interests of the military?
Elizabeth B. Prelogar: Well, let me take each of those questions in turn. With respect to the Harvard case, it's true that the United States participated below on the side of Petitioners but only with respect to the factual record and what we thought, my predecessor thought, the evidence showed in the case on the factual issues. We did not take a different position on the legal interests here Official 153 or assert a different interest on behalf of the military. With respect to the Grutter case, there too the United States did not take a position to call into question whether diversity could qualify as a compelling interest in this context. Instead, the participation of the United States was confined to the narrow tailoring prong of the analysis and whether race-neutral alternatives were permitted. And my predecessor was asked specifically in that argument whether he thought that the military's and the academies' race-conscious admissions programs were unconstitutional, and he declined to say that they were. So I do not think that there is a distinction that's been drawn. And it has, in fact, been the consistent judgment of our senior military leaders across the decades and across administrations, including in the last administration, that it is critically important to our national security to have a diverse officer corps. So that has been a constant and a through-line here.
Justice Sotomayor: General, what was Official 154 the factual basis of the prior administration's support of Petitioner here? It was on what factual issue?
Elizabeth B. Prelogar: It was on the factual issues with respect to what the evidence showed concerning the intentional discrimination claim. And I should be clear that this was only in the Harvard case. It wasn't in participation in this case involving UNC.
Justice Sotomayor: And it did participate here. Didn't it put a brief in?
Elizabeth B. Prelogar: Not in the UNC case, I don't believe.
Justice Sotomayor: So it was only on Harvard --
Elizabeth B. Prelogar: Only on the Harvard case.
Justice Sotomayor: All right.
Elizabeth B. Prelogar: And I guess what I would say about that, Justice Sotomayor, is it's true my predecessor took a different view of the facts. The district court rejected that view. And the First Circuit affirmed the district court's factual findings. So, as the case comes to this Court, it falls within the Court's Official 155 two-court rule about usually deferring to the current -- concurrent findings of two lower courts.
Justice Sotomayor: Now virtually all of the states that have banned consideration of race in any respect experienced a dramatic drop in enrollment of unrepresented minority students, particularly Black students and Native American students, but particularly Black students. And even that drop lasted in most of those institutions, if they're not continuing now, at their most prestigious colleges and universities, correct?
Elizabeth B. Prelogar: That's correct.
Justice Sotomayor: So there is --
Elizabeth B. Prelogar: With respect to Michigan and --
Justice Sotomayor: -- a high price to pay by banning the minor use of race in college admissions, isn't there?
Elizabeth B. Prelogar: I agree with that, Justice Sotomayor.
Justice Sotomayor: And that means that there's a diverse -- there's lesser number of diverse graduates that enter the pipeline not Official 156 just to the government but to government departments, to the private sector. Many of them require higher education, and so that pipeline is being reduced, correct?
Elizabeth B. Prelogar: That's correct.
Justice Sotomayor: So, in the end, our color blindness, whatever that means because our society is not color blind in its effects, that comes as a high cost not only to UNC and to the state and to the nation as a whole, correct?
Elizabeth B. Prelogar: That is correct. And -- and I think, again, to return to the example of the military, it's -- the pipeline question is critically important there because the military has a closed personnel system, and what that means is we don't do lateral hiring. And the individuals who are entering college today, the individuals who are participating in ROTC programs today at civilian institutions or who are admitted to the service academies today are the closed universe of individuals who are going to be eligible for leadership in the military in 20 and 30 years' time.
Justice Sotomayor: So, if we overrule Bakke, Grutter, and Fisher, the diversity Official 157 admissions programs across the nation based on those cases will have to be reformulated --
Elizabeth B. Prelogar: Yes.
Justice Sotomayor: -- in every instance? We will have to -- we're affecting countless existing programs?
Elizabeth B. Prelogar: Correct.
Justice Sotomayor: We're reducing underrepresented minorities?
Elizabeth B. Prelogar: Yes.
Justice Sotomayor: We are depriving others who are not there of the benefits of diversity?
Elizabeth B. Prelogar: Yes.
Justice Sotomayor: And we're doing all this because race is one factor among many that is never solely determinative, correct?
Elizabeth B. Prelogar: Yes.
Justice Sotomayor: Seems like a lot to ask.
Elizabeth B. Prelogar: But I do want to emphasize, to the questions about whether this will end and the questions that, Justice Barrett and Justice Kavanaugh, you were asking about Grutter's 25-year context, that I do think that Official 158 eventually there is an end point in sight, and it comes directly from the Court's narrow tailoring doctrine in this area. I think that diversity in higher education is absolutely a compelling interest and it will remain so. That is constant. That's not going to change. But our society is going to change in ways that enable more and more universities and colleges to try to achieve the benefits of educational diversity without having to take race explicitly into account.
Chief Justice Roberts: Grutter gave us a number. Are you going to give us a number?
Elizabeth B. Prelogar: I can't give you a precise number, Mr. Chief Justice, but I can say that I think that our society has made some progress toward that goal. And there are states today that do not take account of race in college admissions. There are universities that don't take account in college admissions. And some of those institutions have still been able to achieve diverse student bodies. And so we are not here to suggest that every college and -- and university in the country needs to have race-conscious admissions Official 159 in order to achieve these goals. The fact that there has been progress along these lines I think shows that Grutter is working. It shows that as our society continues to make additional progress, this Court's observation there will come to fruition, that we will still be able to achieve those benefits, but we don't need to explicitly take account of race to get there.
Chief Justice Roberts: That's very different from what Justice O'Connor said. She said race-conscious admissions programs must be limited in time. That was a requirement. So that part of Grutter should be disregarded?
Elizabeth B. Prelogar: No, not at all. This Court has made clear and reemphasized in Fisher I and Fisher II that universities are under a constant obligation to evaluate their policies. They cannot adopt race-conscious admissions and just sit back reflexively and let that play out forever into the future. Instead, they need to continuously reevaluate whether progress has been made such that they can use race-neutral alternatives to achieve the same goals. And I think that the Court has not Official 160 retreated from that aspect of Grutter but that it would be incorrect as a matter of constitutional principle to instead understand Grutter to have set a firm expiration date on the nature of the compelling interest here.
Justice Kagan: And as to the nature of the compelling interest, you've made a very convincing case on behalf of the military. I'm wondering whether if we had somebody representing law firms or representing medical facilities or representing businesses in America or representing any of the wide variety of institutions that -- that are critical to the well-being of this country, whether they might make a similar case. Obviously, the -- the particularities would differ, but that the essential nature of the argument would be the same.
Elizabeth B. Prelogar: That's absolutely correct. And you do have many of those entities participating in this case as amici in support of Respondent to explain how critical it is for them to have access to a pipeline of -- of students who have been trained in diverse environments and who themselves broadly reflect Official 161 the community. So I think it's -- it's absolutely the case that the business community, that every aspect of society would feel the -- the -- the shock waves if this Court were to retreat from Grutter now.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito? Justice Kagan?
Justice Kagan: I would ask on a completely different question, but one notable thing about the argument here is that on both sides there's been very little discussion of what originalism suggests about this question. And I -- so I just want to ask, what would a committed originalist think about the kind of race-consciousness that's at issue here?
Elizabeth B. Prelogar: I think that an originalist would think that this is clearly consistent with the original understanding of the Fourteenth Amendment, that universities have come forward with powerful evidence that surrounding the time of enactment of the Official 162 Fourteenth Amendment there were federal and -- and state laws that took race into account for purposes of trying to achieve the central premise of the Fourteenth Amendment to bring African American citizens to a point of equality in our society. And I think what's so notable if the Court is focused on history here is that Petitioner has come forward with essentially no history to support this color-blind interpretation of the Constitution that would make all racial classifications automatically unconstitutional. There's nothing in history to support that. And it takes aim not only most directly at cases like Bakke and Grutter and Gratz and Fisher and this case but also at the Court's entire structure here of applying strict scrutiny specifically to take into account when a racial classification might serve a compelling interest and be necessary to achieve that interest.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: I -- I'd like to Official 163 focus for a moment on -- on the statutory question. It's one I raised earlier. I'd like your thoughts on it. We have both a constitutional claim but also a statutory claim, Title VI. And I understand our precedents have often conflated the two, but put that aside for the moment. Justice Stevens made a powerful argument in Bakke that whatever the Fourteenth Amendment permits or does not permit, Title VI's language is plain and clear just as Title VII is. And Title VII does not permit discrimination on the basis of sex, and Title VI does not permit discrimination on the basis of race. Can you help me with that?
Elizabeth B. Prelogar: Sure, Justice Gorsuch. So I think that the Court in Bakke and Grutter correctly interpreted Title VI, the statute, as --
Justice Gorsuch: Where -- where did Justice Stevens err?
Elizabeth B. Prelogar: In not recognizing that the term "discrimination" in this context is ambiguous. And I think that the legislative Official 164 history therefore carries --
Justice Gorsuch: We didn't find it --
Elizabeth B. Prelogar: -- forth in this context.
Justice Gorsuch: -- we didn't find it ambiguous in Bostock. Why should we find it ambiguous now?
Elizabeth B. Prelogar: Well, I think that -- I -- I think that the statute doesn't define --
Justice Gorsuch: Were we wrong in Bostock?
Elizabeth B. Prelogar: No, I'm not suggesting that. But, Justice Gorsuch, I know you asked me to put to the side that --
Justice Gorsuch: I did.
Elizabeth B. Prelogar: -- the Court has already resolved this issue. I just would emphasize that --
Justice Gorsuch: All right. You're going to go back to that. Okay.
Elizabeth B. Prelogar: -- we're talking about a statute here, statutory stare decisis considerations have their greatest force. Congress has never overturned this Court's Official 165 interpretation of Title VI. Petitioners aren't asking this Court to revisit its interpretation of Title VI --
Justice Gorsuch: On the text, though, do you have anything else?
Elizabeth B. Prelogar: I would point to the ambiguity in the term "discrimination."
Justice Gorsuch: Okay. But it's not ambiguous in Title VII?
Elizabeth B. Prelogar: No, and -- and we respect this Court's decision in Bostock.
Justice Gorsuch: It's just ambiguous in Title VI, the same word?
Elizabeth B. Prelogar: This Court has held that multiple times.
Justice Gorsuch: Okay. What do we say to Asian Americans who there's a veritable cottage industry we're told by the briefs that they are encouraging Asian applicants to avoid and beat "Asian quotas"? That's how they perceive it. Is that an important consideration in that they tell applicants -- coaches tell applicants to disguise their backgrounds and their names to the extent possible in order to Official 166 secure what they view as an even footing in the admissions process?
Elizabeth B. Prelogar: I find those accounts appalling. They are not permitted under the Constitution. It's very clear that racial identity cannot be treated as a negative. That would be intentional discrimination. It's prohibited under Equal Protection. It's prohibited under Title VI, and Grutter does not countenance it. So, to the extent that that is happening at any educational institution around this country, it's unlawful and should -- the university should be held accountable for it.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: I understand your point about the race-conscious decision-making being allowed in certain circumstances under the Equal Protection Clause, and, certainly, precedent in the school desegregation cases allows that as well and so -- so does Bakke, obviously. And you read Justice Marshall's Official 167 opinion in Bakke and that's a very forceful and compelling explanation of why -- why that is so important and why that was in his view necessary for some time. But even in Bakke, Justice Blackmun was saying there must be a time when in he said I hope 10 years, this was in 1978, and he then said that hope is a slim one. And then you got to Grutter, and that was a very similar argument to this one. And -- and we've talked about, just to pick up on the Chief Justice's question, the -- the reference there, I think, was because Justice O'Connor's majority opinion was concerned about indefinite extension, and you've said don't worry about that. How will we know when the time has come?
Elizabeth B. Prelogar: The time will be here when universities are able to enroll diverse student bodies without having to take explicit account of race in the admissions process.
Justice Kavanaugh: So, if I can just break that down, I think what you're saying, but Official 168 correct me if you disagree, is that when race-neutral alternatives produce a sufficient percentage of underrepresented minority students in the student body. Is that an accurate translation?
Elizabeth B. Prelogar: Yes, when it allows for meaningful representation and meaningful diversity on those campuses.
Justice Kavanaugh: Okay. And what -- I used the word "sufficient," you used meaningful, but what number?
Elizabeth B. Prelogar: So I -- I -- I think that it's not reducible to a precise number or percentage. The Court has made clear and just recently in Fisher II considered exactly this question and made clear that, of course, there -- there aren't quotas or specific numerical thresholds that need to be reached. That's not the right way to think about the diversity interest in this context. Now I don't want to suggest that -- that demographics are wholly irrelevant here. The Court has also said in Grutter and then reiterated in Fisher that numbers can remain relevant for purposes of trying to measure Official 169 whether there's truly a meaningful opportunity, for example, to have cross-racial interactions.
Justice Kavanaugh: But, if you don't have a number, and I understand why it's difficult, and I understand the problems with that, I get all that, but if you don't have something measurable, it's going to be very hard for this Court, if we're called upon 10 years from now or 20 years from now, it's going to be -- you know, this is a bit of a replay of the Grutter argument, but if we come back to it, okay, are we there yet? What do we look at? You're saying meaningful opportunity. I don't know exactly what that means. I don't know how the schools will know when they have to -- when they've -- you know -- the -- the -- when the race-neutral alternative could get them close enough or -- it has to meet some threshold. I don't know what "meaningful" means. I know what it means in terms of what you're describing. I don't know how it translates to looking at the composition of a student body achieved through race-neutral alternatives and says, yes, that gives them Official 170 meaningful opportunity. And I don't know how educators are going to make that decision, so any help you can provide on that I would appreciate.
Elizabeth B. Prelogar: Sure. And I -- I think that it's going to be tied to the direct educational benefits that the university has articulated that it's trying to achieve, and those can be measured. I would point to, I think, three overarching categories or ways to try to measure progress toward the goal. The first can be quantitative or objective evidence. I'll use the service academies again as another example. One of the things they have looked at and measured is the disparities in graduation and attrition rates. And the Coast Guard Academy, for example, discovered when it went to Congress in the early 2000s to try to ask Congress to lift the ban on the use of race in admissions, which Congress did in 2010, what the Coast Guard Academy said is it had studied the issue with respect to women and discovered that when enrollment of women stabilized at about 25 to 30 percent of the population, those Official 171 disparities of -- of women not graduating in the same -- at the same rate as men fell by the wayside and disappeared. And so I think graduation and attrition rates are relevant. I think that a university can also measure the degree of race-related incidents on -- on campus and whether those are happening. I think the university can look at patterns of enrollment in its classes to determine whether the -- the classroom environment is diverse and there are those opportunities for cross-racial understanding. So that's all the first category. The second category I would point to is the one I've already referenced, demographics. I think that that can be relevant, again, not to set a quota, not to identify a precise numerical threshold but in recognition that when there are extreme disparities in representation of certain groups, it can cause people to wonder whether the path to leadership is open. And if I could, maybe I could just give, I think, a common sense example of that that I would hope would resonate with this Official 172 Court. The Court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50 percent or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, is that a path that's open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity in representation, it can matter and it's common sense. And then the third category to -- to finish this up here, that I think that universities can look at is subjective or qualitative evaluation of actual student experiences. You can do things like conduct high-quality surveys of students to ask them what opportunities have you had to interact with people of a -- of a different race from you? What did you learn from those experiences? Did it challenge your thinking? If you are an underrepresented minority student, do you feel isolated? Do you feel like you have to be a Official 173 spokesperson for your race? And so that can yield relevant data as well to help measure progress toward these goals.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: General, I have a question about the originalists' evidence. And, you know, there's nuance in that, and I don't want to get into the details of that, but my question is how it would affect your position in this case. So I entirely agree with you and it's established in our precedent that it's not always illegal to take race-conscious measures. Remedial measures, you know, are -- are an example of that. Do you agree, though, on your understanding of the originalist evidence that strict scrutiny -- and, obviously, we didn't think about scrutiny in those days, but, you know, it's not accurate to say, I agree with you, when you look at the originalist evidence that it was always color-blind, that some race-conscious measures were permitted at least in a remedial sense, right? Desegregation is an Official 174 example of that. So the question is, under what circumstances have those remedial measures been permitted? And, you know, that's a Section 5 question. How would that originalist evidence affect your case? If you were writing on a blank slate, would you say that university affirmative action programs don't implicate the Fourteenth Amendment? Or are you saying that they just very plainly would satisfy our modern tiers of scrutiny because the interest is compelling even if we didn't have Bakke, Grutter, Fisher, et cetera?
Elizabeth B. Prelogar: I think that because they involve racial classifications, it is necessary to test them under strict scrutiny. And so we're not suggesting that under an originalist case, they would just be automatically exempt. I think the Court has rightly recognized in this context that anytime a racial classification is used, you want to subject that to the most searching scrutiny in order to test for whether it could possibly be justified based on compelling interest and also, of course, to Official 175 push on narrow tailoring. But, here, we think that the Court rightly concluded in Bakke and Grutter and Fisher that narrow tailoring and compelling interest are satisfied.
Justice Barrett: Thanks.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yes. I just wanted two quick things. One is about the originalist position. Isn't it at least ambiguous as to what the history is telling us about -- about whether or not race-consciousness can be used? I know your position and the position of some folks is that it's clear that the history is saying race-consciousness is okay. And -- and as Justice Barrett mentioned, there is evidence of that. And if there's evidence on the other side, don't we need to have a clear picture of this in order to overcome stare decisis? I mean, we have the historic -- historians' brief that says even if the history was unclear, and it's not, overcoming stare -- stare decisis requires something more than ambiguous Official 176 historical evidence. Do you agree with that?
Elizabeth B. Prelogar: I do agree with that. I think that Petitioner bears a heavy burden in this case because we're in a situation where stare decisis considerations apply, and I think it would be destabilizing for the Court to turn its back on precedent here. And I think what can undoubtedly be said about history, although there are some complications in the record, what is undoubtedly true is that Petitioner has not been able to point to any clear history to support the notion that racial classifications were automatically and invariably unconstitutional.
Justice Jackson: And, finally, is there some connection between how race is being used and the concerns that some of my colleagues have about the amount of time? So what -- what I'm trying to get at or think about is whether Bakke, for example -- Bakke was a set-aside program as far as I understood, that there was actually 16 seats in a class of a hundred that were being set aside for underrepresented minorities, and, therefore, Official 177 obviously, the concerns about perniciousness and being problematic and we want it to end, we don't want this going on forever. But, when you have a situation like this in which you're talking about a holistic review, other people are getting pluses in the system, no one's automatically getting a plus in the system, I wonder if the urge to end it -- and what is the end it? The end it is to include race alongside 40 other characteristics. I wonder if it implicates the same kinds of concerns about the use of race?
Elizabeth B. Prelogar: Yes, Justice Jackson. I think that there is a lot of force to that point. And I think that the UNC record really illustrates this point, that UNC has held itself to the standards this Court has articulated in using race as only one of a multitude of factors in holistic admissions and deploying race-neutral alternatives and not using race when it's not necessary to achieve true student body diversity. And -- and maybe that means that given the limited way that race functions, it is taking longer for our society to get to the Official 178 point that everyone agrees we will eventually reach, but I don't think that that's a basis to condemn Grutter now and halt progress in its tracks.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, General. Mr. Strawbridge, rebuttal? REBUTTAL ARGUMENT OF PATRICK STRAWBRIDGE ON BEHALF OF THE PETITIONER
Patrick Strawbridge: Thank you, Mr. Chief Justice. I'm going to try to make four points here. First, with respect to the military, the -- the United States brief on that is long on assertions that race-neutral alternatives are not available to it and would not work but not actually long on any evidence of that fact. We don't know precisely what race-neutral alternatives they have looked at. We don't know what has been tried. We don't know what else could be available to them, especially with the fact that they can draw on appointed -- appointments from the enlisted ranks, as well as from prep schools. Official 179 The only actual information we have about how race-neutral alternatives might work in the military academy setting is the Coast Guard when it was race-neutral. The last year that the Coast Guard was not using race as a factor in admissions, it expanded race-neutral recruiting and other pipeline initiatives, and it obtained underrepresented minority enrollment within two points of the Air Force Academy and West Point, which were using race as a -- as an admissions factor. Nor is there any evidence to suggest that the ROTC candidates who come from Texas A&M and Florida and California and Michigan are less diverse, let alone have received fewer benefits of educational diversity than those who come from UNC. With respect to the originalism point, obviously, we think that -- that our reading is consistent with the originalists' reading. The best source on this is actually the United States' brief in the Brown reargument hearing. It has, actually, the most complete survey of information about the meaning of the Fourteenth Amendment, and it concludes on page 65 of that Official 180 brief that a general understanding of the broad scope of the Fourteenth Amendment when it was enacted is that it would "prohibit legal distinctions based on race or color." That is our position. That was the position in Brown. It's the position that prevails today. There is an assertion that California and Michigan have seen their white enrollment go up since they discarded the use of race. That is not true. In Michigan, underrepresented minority is actually higher today than it was during race-conscious admissions. Additionally, Asian American admissions have gone up six points. Asian Americans are not white. It's necessary that the white share of the class has gone down. At California, the -- the -- the most recent -- or the 2021 class of California, and there was testimony about this in the trial record, Berkeley is 19 percent white, it's 15 percent Mexican American, it's 5 percent other Hispanic, it's 16 percent Chinese American, it's 4 percent Vietnamese, it's 4 percent Korean, and it's 4 percent Black. And we are told that the students there are somehow Official 181 being deprived of the educational benefits of diversity or are being deprived of diverse environment. I don't think that's correct. Finally, with respect to my friend from UNC, he insisted that they were committed as close as they could to exploring race-neutral alternatives and having an end point. There was no criteria described to this Court by which one could ever -- ever conclude that their interest in obtaining educational benefits have been satisfied. There was a reference to climate surveys, but the Director of Admissions testified at trial that he had not looked at a climate survey in 10 years. There was no ever -- there was no plan ever to consider sunsetting their use of race. There was never even a serious effort in the office to measure what the effect of race was in their current admissions program, even though they had done so for gender, for legacy status, and for time of application. I don't think that's consistent with a university that's actually committed to moving off of race. The fact that the district court found this all survived strict scrutiny under Official 182 Grutter is a reason to overrule Grutter.
Chief Justice Roberts: Thank you, counsel, counsel. The case is submitted. (Whereupon, at 12:47 p.m., the case was submitted.)