Clarence Thomas says he doesn’t have a ‘clue’ what diversity means as Supreme Court takes aim at affirmative action

Nearly 20 years ago, the US Supreme Court determined that universities may consider race in their admissions process in an effort to achieve a more diverse campus.

But on 31 October, Justice Clarence Thomas – part of the conservative majority on the nine-member court – said he does not have a “clue” what diversity means, while conservative justices repeatedly doubted whether universities would reach an “endpoint” in race-conscious admissions.

The 2003 decision in Grutter v Bollinger affirmed that universities can consider race as a factor in the admissions process, upholding decades of precedent to diversify student bodies and expose distinct perspectives and experiences on college campuses. A pair of challenges from a right-wing legal activist group could overturn that decision and outlaw race-based affirmative action in higher education admissions altogether.

Such a decision would radically reshape college and university admissions and sharply reduce enrollment rates among students of colour.

The court’s six conservative justices appear likely to rule that the consideration of race at Harvard University and the University of North Carolina – the two targets of legal challenges from Students for Fair Admissions – violates the equal protections clause of the 14th Amendment of the US Constitution and the Civil Rights Act, which applies equal protection standards to private institutions.

Such a decision would be at odds with the intent and legacies of those landmark civil rights provisions, which were explicitly drafted to advance equal opportunity.

More than five hours of oral arguments in back-to-back hearings on 31 October debated whether universities considering an applicant’s race in their admissions process is constitutional. Conservative justices appeared to suggest that it’s not.

US Solicitor General Prelogar argued to the court on Monday that reversing precedent would have “devastating effects on our nation’s efforts to move closer to a more perfect union where our diversity is its greatest strength.”

In its briefs to the court, attorneys for President Joe Biden’s administration contended that, similar to the nation’s military branches, federal agencies rely on “diversity in our nation’s universities to recruit highly qualified graduates from all segments of society who are equipped to succeed in diverse environments.”

A majority of Americans support banning race-conscious admissions policies, but Americans equally support programmes to bolster racial diversity on college campuses.

Chief Justice John Roberts and Justices Thomas and Samuel Alito have dissented in earlier cases before the court that upheld affirmative action programmes. In the decades after earlier decisions on affirmative action, three new conservative justices – all appointed by Donald Trump – now join those men on the court.

They also are joined by Ketanji Brown Jackson, the court’s newest justice and the nation’s first Black woman serving on the court. Because she once served on its board, she has recused herself from the Harvard case but she heard arguments in the UNC case.

Justice Jackson suggested that removing race-conscious admissions processes creates a “rule in which some people can say the things they want about who they are … but other people are not going to be able to.”

She argued that universities could continue to valuably consider some family histories, like wealthy students from white families with legacies at an institution, but not others, like Black students who families endured racial discrimination and enslavement.

“I thought that part of what it meant to be an American and to believe in American pluralism is that, actually, our institutions are reflective of who we are as a people in all our variety,” said Justice Elena Kagan. “White men get the thumb on the scale, but people who’ve been kicked in the teeth by our society for centuries do not?”

Justice Sotomayor also stressed that race often does correlate “to some experiences and not others” when considering applicants from diverse socio-economic backgrounds.

“If you are Black, you are more likely to be in an under-resourced school. You are more likely to be taught by teachers who are not as qualified as others,” she said. You are more likely to be viewed as having less academic potential.”

Justice Thomas asked “what academic benefits” come from diversity, other than “feeling good and all that stuff”.

“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” he said.

Justice Alito similarly asked what “underrepresented minority” means, suggesting that college admissions are “a zero-sum game” in which one group is allowed to advance at the disadvantage of others.

Responding to Justice Thomas, North Carolina’s solicitor general Ryan Park said the University of North Carolina’s definition of diversity looks to the Supreme Court’s own definition, “a broadly diverse set of criteria that extends to all different backgrounds and perspectives, and not solely limited to race.”

“We value diversity of all different kinds and all the ways that people differ in our society,” Mr Park added.

Diversity enables a “deeper and richer learning environment” and “more creative thinking and exchange of ideas” and “reduced bias” on campuses,” he added.

Both Harvard and UNC have defended an admissions process that “need not ignore a candidate’s race any more than it does a candidate’s home state, national origin, family background, or special achievements.”

Other colleges and US military academies approach admissions similarly. Dozens of universities, businesses and retired military officials have filed briefs to the court supporting racial diversity among their respective institutions.

A question that is central to both cases asks what constitutes racial discrimination, and whether the “originalism” upheld among conservative justices in their interpretation of the Constitution will apply to cases involving racial discrimination.

Both sides of the challenges have invoked the landmark 1954 decision in Brown v Board of Education, which declared segregation in public schools on the basis of race to be unconstitutional.

But Students for Fair Admissions has argued that admissions policies must be colour blind, and that colour blindness is central to the 14th Amendment. That case, however, corrected the exclusion of students from schools based on the basis of race, not the efforts to integrate them.

A long-standing perspective among right-wing legal groups contends that such civil rights provisions are “colour blind” and prohibit race-conscious remedies to combat discrimination – despite the constitutional “originalism” behind them.

The influential Federalist Society, which counts all current conservative Supreme Court justices as its alumni, has argued that the constitutional grounds for the Brown decision are invalid.

In oral arguments in a separate case last month, Justice Jackson said it is “clear” that the 14th Amendment was drafted “in race-conscious way” to “ensure that people who had been discriminated against … during the Reconstruction period were actually brought equal to everyone else in the society.”

“I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she said.