Transcripts For CSPAN Justices Hear Case On UNCs Race-Conscious Admissions Policy 20221101

Racial classifications contradicts the 14th andments guarantee of equal treatment. It relied upon sah typical assumptions that race is necessarila proxy for ones viewpoint and its purported limi are empty and selfcontradictory, which is why it also creates many negativeem. Effects. Some applicants are instanof eyes to concear race. Others admitted on merit have their accomplishments diminished by saying celayed a role in their admission. In two decades, this has somehow reduced thro of race on campus. Mr. Strawbridge, the respondents are at if you dont consider race, you wont be able toonder the whole person in the admissions process. How do you respond to that . This court has always said that racial, it is possible that re uld provide context for experience, but just ering race and race alone is not consistent with the constitution. Is also not consistent with other holistic approaches at this court takes. There is great freedom, for example to strike a juro but one thing you cannot strike them for is their race. In awarding child custody, the most holistic process perhaps knn to law is the best interest of the child. This court has held that race cannot be a factor in that. I understand that. But we are talking about an application to a univeit if you dont cle race, i assume thareondents think that by including race, it tells you something about a person. If you dont include that, then what do you include on the application . You include their experiences, where they grew u perhaps their socioeconomi status. L sorts of things could actually lead to broader diversity. The viewpoint that race necessarily inform somhi about anyones qualifications is antithetical to this courts process and our constitution. Can we stop a moment . I want to break dow yore talking about. Memes race does correlate to some experiences and not others. You are black, you are more likely to be in and under resourced school. You are more likely to be taught by teachers who are not as qualified as others. You are more likely to be viewed asavg less academic potential. Even in your own argumen i your brief, you correlate race to lots of other things that are not necessarily causalbu which do correlate. How do you tease that out . You want aadssions officer to say, i am not going to look at theacof the child to see if ty d all of those sooeconomic barriers present. Spite that, they got very High High School scores, mabe lot lower sat scor, t i am going to think abo tt. You are asking them to just shrug that aside . It has always been disfavored for number of reasons. They are necessarily divisiv why is it that within just the 13th and 14 the movements amendments were being passed, congress spent a lot of money in trying to get black children whether they were children of sles or free slaves, to be educated in integrated schoo . They had a belief that integration itself could provide value. That is true. This is even in the educational context. That is only remediation for slavery. These programsmade available to black free children, many of them. And thkeucky school that was supported by federal funds required 50 black children an 50 white children. I dont believe that supports that view. There was an application to be open to all. They did not make distinction among applicants by race. The only requirement we could tell was the willingness to be educated in an integrated environment. You are assuming in your argument that race is the ly factor to get someone in. Could you point to any application . You cannot useacexclusively, but you can use it as one among many factors. Yes, viously we have quarrels with the logic of that. In a zersugame, if race is going to be counted, that mean some people are going to get in d hers excluded based on not just the logic, the facts. What is the fact here about ce being used singularly to let people in . The exptst unc said that 1. 2 were influenced by race. We obviously had disagreements with the characterization of thatgiven the fact that they received 40,000 applications per year, that is reds if not thousands of applicants being affected race every year. Our experts testimony say there are at least a hundred applications with each admissions cycle. What was your positn race neutral alternatives. You think those are appropriate, even if the intethe state in adopting them is to reach a certain level of minority students . Our position is that this courhaan established framework to establish neutral action. If the only reason to adopt a particular admissions policy is for raiversity alone, [indiscernible] i suppose that given they are race neutral, most would not be defended as for race alone. For example, socioeconomic status, maybe attean at a particular school that is known to be correct. All of the alternatives, especially socioeconomic, those can be justified on race neutral means. They increase socioeconomic diversity, they ensure that people in under resourced schools n opportunity to attend a university. Why is the questionac alone . Usually, you look at permissible versus impermissleurposes. It is constitutionally impermissible if it is one thing alone. If it is one thing at all, it it affects governmental action. Suppose there is a 10 plan or Something Like that and one part is socioeconomic diversity. Another part is we will also get more racial diversity in this manner. That is part of the purpe the law. I think that is prettyruto experience, that part of the reason that these kinds of plans have been developeishat people have understood that we will work for mo rially diverse campuses. Is that sible . It is a different analysis when the mechanism that is chosen it is not different analysis. One way you can offend the constitution is by ungn impermissible classification. Another way you caofnd the constitution is by devising a proxy mechanism with the purpose of achieving the same results that the impermissible clsication would. I took your answer, which i welcome, to be yes, the 10 plans are constitutional. But i guess i wonder why, given most of our cotitional doctrine, that would be so. Im not sure the current state ofaws, especially within arlington. If the government can demonstrate they would have adtethe neutral program anyway, i dont think there ulbe intentional discrimination in that case. So, if you prevail here, and a university develops th raceneutral alternatives to consider in the kef a decision her they choose the one that is going to lead to the hight mber of africanAmerican Students and they choe at raceneutral alternative for that reason if atere the only reason they were choosing it, i think that would require an analysis onhathe evidence would have got to bear. What if it is one of the reasons . If they can demonstray wouldve pursued that policy anyway, i think it is sufficient what you are saying is if that contributes at all to the decisionmaking, it is impermissible. I dont think that is what isang. I am saying that if the only on to do it is through the narrow lens of race and there is no other raceneutral justification for it that they would have led to adopt that policy anyway, i think that is the only scenarith would create problems. Race has never been a determinative factor. Race alone does not account r y someone is admitted or not admitted. There is always a confluence of reasons. There are any number of hispanics, blacks, native americans, who are not chosen by schools. I am not sure i understand how you are differentiating your answer if re only one among many faor how can you ever prove, given that the District Court found against you, that it is ever a determinative factor . It was 1. 2 of instate decision0. 2 outofstate decisions. I would suggest that that is a courts reasoning and broader in general, in that it encourages and nullifies scti in some ways, when you have this many factored analysis that makes it more difficult to see what effects racial bias. C iust ask about that . I think we have to drill down on that from a threshold jurisdictional standpoint. I think we have to understand whether race is beinus in this context to gie to an actual concrete to particularized injury that would give members O Organization standing to challenge the use of race in context. I have beestggling to undersndxactly the sort of how race is actually factoring into the admissions process here and whether there is any inj that arises. Can you help us withha figuring out hctly uncs system works in terms of race and how your members are being harmed by that. Let me start with legal question. Denial of an oppty to fairly compete for admission when one of the factors that is used is racial that was a setaside. It was a specific circumstances. You could see there that the race factor wating an unequal Playing Field because of the way in which the program was structured. Here, i dont really see that happening, because first of all, the university is not requiring anybody to give their race at e beginning. When you give your race, y not getting any special points. It is being treated on ph other factors in the system. No one is automatically getting in because race isei used. There is no real work that it is doing separate and apart from the other factors in any different way, like it was in that case. When you look in that case, it says specifically when there is a setaside kind of program, then we have actual injury that gives rise to standing. But i am not sure you hat here. Even grutter establishes that the holistic process does not make the injury go away. But you said that needs to go away, so we cannot use this as a s. Grutteruggested that it can only be useds a plus factor, never a minufaor paired but there are many dissenting opinions in that case. It mak nsense. If we are going to consider race and we argue that racial classification, which is hhl disfavored at law because nature the way it is going to be used, we take away some of the work. I donk that is the way standing ordinarily works. I am worried that you are asking us for special specialing rule, that youaying that we can challenge the use of race factor without explaining how it is factoring in and that harms our members. So why is it that radoing anything differeyour this environment . O compete in they can stay get extra points. Thts are not being tallied, there is no goal, tre is no target. In any event, they can get points for diversity in is environment. So, why does having race as a factor harm your members in an addressable way . The case is that unc gives racial preferences to everyone but white applicants and a applicants. Are you sure about that . Yes. I thought anybody could get a point for racial diversity to e tent that the other factors in their applicati allowed for. Unc, and i think this is in the District Court findis, defines the three groups that i said. Moreover, any effecte ce in the process is goi tgive rise to injury because the injury that one case recognized and another d t hesitate in fighting for standing in a case, is that youre being denied the pounity to compete on a fair Playing Field, at least a constitutional Playing Field. Can i take you back to the other question. She talked about a student who came from an underprivileged school, did not score well on the sat. I want to know whether, in your view of the world, if a student wr essay describing some 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 Small . Clause . Yes. The active overcoming discrimination is separate because any member of a race might be put in a position where theysomewhat isolated or dierent. I understood that you thought i meant to say it quiteble. Differently. What we object to is the consideration of race in a box. Race in a box checking way. Correct, given the basis of ecking the box alone. Where . Show me one place the District Court fod at an applicant checking a box automatically gets greater points. I did n say that. I said they can take race into accosed on the information alone. Youre making assumptions with that. I can look at something and say let me read the rest of the application and see if that warrants that extra point. But where can you point to in the record where merely checking the box, standing alone is one factor got somebody in. There is an email exchange in the record, though it is sealed, t think the court is familiar with it. One person, not the entire it was a chat between three people. [indiscernible] may i go backsticeard case . Barrett question . You said not race in a boxchecking way, but then the Justice Barrett said racen experiential way, and you said s to that. You said, well of course youve always been subject to discrimination. Ceainly being subject to discrimination is one partf what it means to have race affect your experiences generally. What are you saying a college can look at and what they cannot look at wh ty are reading an essay about the experiences that a person has had in their life . The reason race may have had tual relevance is like a story about being subjected to racial dcrination demonstrates that the applicant has overcome some hardship. Being subject to discrete discrimination,reou sanghere are other parts of an application that the universities need to look at or this is just complaints about racial discrimatn . For e, an Asian American student who took an acnterest in traveling back to their grandmothers country of origin or someo wasolved in particular outdoor activiesith the interest of supporting Asian American students, those show dedication and involvement, global intert in the world. They also show a not very savvy applicant. One thing an essay is going to show is that he is Asian American and those of the people who are discriminated against. Yes, that is true. So, it is the case that africanamerican applicants can ghlight that aspect of their background in situations such as the one you mentioned, and that people reading that lling in the Admissions Office can yes, but whabjecto is just taking into account race independent of any other information. How are they taking race into account independent of the rest of the information in hostic review process . My otherion was about this same thing. How e being used in this process . You keep saying we object to the race standing alone, but as i read the record and understand their processits never standing alone. But it has to be used. Bo wt if they check it ands the the university seeth but et look at it, doesnt take it into account in any way in the application . Do we have aonitutional violation just because the student voluntarily said, i am an africanamerican. But that never comes into play. Ithe University Admissions ocess it instructs readers not , to take that into account or award any benefit toward admission on that basis, than it is not necessarily a problem. No inions. It just never actually comes into play. If youayhat i think you are saying, is that people have to mask their identities when they me into contact with the Admissions Office, just t basis of their differences. It never comes into play. I donk this is different from other criteria. For example, uncs stance at trial is that gender is not part of the admissions process. Admissions not supposed to take gender toccount. That does not mean that they are not aware that womenre applying but the instructions , are not to take geernto account. To my knowledge,e nt see a large effect at all suggesting that gender is playing a role. But both experts in this case found that race was in fact mattering to a number of applicatns you can debate between our expert and their expert whether it was 500, 1700, 2000 applications per year. But it is having an effect. If it is not having an effect they are sending an awful lot of time and money opposing this case. Let me give you hypothetical along the lines e of what you have been question about questioned about already. Suppose th atudent is an immigrant from africa and moves to a rural area in Western North carolina, where the populati overwhelmingly white. The student in an essay does not say, i was subjected to any kind of overt discrimination, but i did have to deal with huge cultural differences, i had to find a w orelating to my classmesho came from very different background. Would that be permissible . I think that would genera be permissible. The preference in that case is not enased upon the race but , the cultural experiences where or the ability to adapt and encounter a new language in a new environment. Race is part of the culture and cultures part of the race. That is slicing the bologna very wd say the same about chd custody cases. Eres a difference between using an express racial classification. When youre using race, you are telling them the applicants at theacmatters. It divisive, and gets is her ay from how the government treats race as irrelevant. They are offering it because they say race matters to me. This is not a situation in which the univertys asking or telling every applicant, give us youracso we can classify people, so we can give certain people preferences. Only reason why the of these applicants is becauseny they are voluntarily providing that. But it ming distinctions on who it will admit, at lea in part, on the race of the applicant. Some races get the benefit and some do not. Turning to the precedence for a moment, distinguished on the one hand between racial quotas which the justice said would be impermissible with pursuing racial diversity and critil mass of different races on campus. How are we to about distinguishing between those concepts . The racial diversity point interesting because the courts rejected racial diversity as a compelling interest. It has rejected racial diversity as a relevant factor in k12 education. We think it is an exception to that and the other cases come in rms of disfavoring the use of race. By the government. In your view, most of your briefs, not putting asidthe last 10 pages or so but in your , view it would not matter if the s a precipitous decline minority admissions, africanamerican, hispan, e or the other . If i think there is some numbers in this case, but suppose it just fell through the floor. You know, too bad . I dont think it ig to fall to the floor. If the universities actually coitted to the broader diversity. I know you think that and there has been a lot of litigation about tha h much will it decline and your expert and their expert. But e logic of your position suggests that really does not matter. The last 10 pages of your brie where you say there has been narrowairing it matters and , in those 10 pages. But not if you say this there is a categoril rule no race shall be involved in , admissions decisions, then it doesnmatter if minority enrollment or particular kinds of minority enrollment fall to the floor. Does it . Open as a result of the criteria the university hased to choose and it is not discriminatory in other precedents, enhat is the decision the univeithas made. I doubt any university wld make that decision, for example, inda which is raceneutral and has similar demographics to unc uncs on record, 50 greater number, greater number ls get back to the fact of what universities can do with what purpose to achieve racial versity even without being explicit about racial classifications. Putting that aside, i guess what i sing is your brief and this is explicit in your brief t just does not matter if our institutions look like america. You say this on page 11 in your reply. I guess what im asking you, doesnt . Doesnt it . Thesarthe pipelines to leadership in our society. Mht be military leadership. It might be business leadership. It might be leadership in the law or all kinds oars. Universities are the pipeline to that leadersp. Now, if universities are not racially diverse and your ruleugsts it doesnt matter well, then all of tho institutions are not going to be racially diverse ehe and i thought that part of what it meant to be an american and to believe in american pluralism, our institutions ar flective of who we are as a people in all our variety. I think that is right. I think the reason that is a great amerandeal is we expect the government is going to b to everybody who wishes to apply and that because merits and your value as a contributor to society is not correlated with your skir. Naturally, a government that treats people fand makes offers open to all will necessarily see racial diverty i think yore right to say this. You said tonof my colleagues questions, if it didnt matr theyre spending an awful lot of , time and money and anxty doing something that doesnt maer. Lets presume it does matter. Lets presume it does matter and these programs have been unrsod to be necessary to ensure that these institutio have a certain level of racial diversity. And i concede what Justice Gorsuch says it is a bit racial diversity is a bit mysterious but have a certain lel of racial diversity that would enable them to get the benefits of all our many different peoples and enables American Society generally to do the same. I think one of the problems is it suggests this is somehow ss. That if it is one matter among many and we can identify exact exact how many points race is gettin it says it is not that big of a deal. It is always a plus factor never a negative bs is a zerosum game. It suggests the harm of racial classifications icthis court have always recognized our hent of themselves, can be dden or pushed down as long as race is just one of many factors. If you have i thought your objection is also that the race neutral alternatives you have to try race neutral alternatives you dont think university has, first. Right . We do not think university has made a commitmd we presented a lot of evidence on thisas we do not think the District Courts analysis is consistent it requires it. Scrutiny even as if they do if they cannot take theoxeing checked into account or cant do that and do try race neutral alternatives, is there evidence inheecord about what the results of those wod . In other words, take an example, if all of the sudden t number of essa tt talk about the experience of being an africanamerican in society riseatically, the consequences of that be the same as if theyre not being mentioned but instead race is taken into account automatically . I want to make sure i understand the question. It is a little awkward awkwardly phrased. I wou n say that. The question is to there is some sort of cheating going on . Not a bit. E discussion has been about the dramatic plummeting of the number of africanAmerican Students that would kelace if the practice of checking a box with race is taken away. My sugstn is, if not, maybe there will be an incentive for the university to truly pursue raceneutral alternatives such as aowg, which i think would be allowed, the students, applicants to dite experiences they have had because of their race. That is correct. Therea lot of room for unc to improve its socioeconomic dirsity. It claims to value this but the preference to our testimy lesser than it gives to race. Something likeverage Median Income in North Carolina is abo ,000 a year but the average unc student comes from families making 153,000 yr. There was testimony from the director of aons saying, the percentage of firstgeneration College Students andhetudents who are receiving scholarships under the carolina covenant had declined in recent years. Your position will put a lot of pregoinforward if it is accepted on what qualifies as ce neutral in the first place. Is it socioeconomic . Is race neutral top percent top 10 plan . Do you want to respond i did not mean to interrupt. I just wanted to say is i dont think that has been the ence. There are nine states that have barred t u of the program. We are not aware of anyone who has challenged raceneutral on the ground. I am mangure what qualifies as raceneutral in the first place. What if the college says we are going to give a plus to get a plus two descendants of slaves . Is tharaneutral . That is a difficult question because it is so highly correlated with race in the history of ourry, im not sure any college has proposed that. I know we have to think forward about what will happen if you preiln this case and that seems potential. So im curious about your answer that question. My instincts standingif is that we are the only basis then that quickly starts to look , like pure proxy for race. It would depend on the Actual Program is implemented. Could you give a plus t applicants whose parents were immigrants to this country . I think is that race neutral . If it is immigrants regardless of country, racial descendant, i think that is probably closer what did the evidence show in of re neutral alternatives from your perspective and would numbers plummet . No. Following the analysis, some of which assumed holistic pro at was no longer putting a thumb on the scale for students of a particular race and it showed you could get to the current academ cdentials of unc averagand gpa within 15 points, you could get vy similar less than one percentage , difference, in individua racial breakdowns. Those are relevant. Equaorreater than overall underrepresented minority representation of course, socioeconomic diversity would increase signify. I think itelling in the districts courts analysis it gave little weight to the preference. Of a socioeconomic yes, that would create a diversity different than what unc prefers and we think that is part of the problem. Simulations. Every one of them. So to the District Court. In every one of them white , representation stayed the same went down. Some minority groups increased but others did not. Blacks decreas ievery one of your simulations. The distri crt also looked at your stimulations and found each and every one of them had fatal statiic flaws, not the least ofhi they relied on unrealistic sutions about the applicant pool. In one of emthe modified simulation which you seem to be relying on here assumes unc could admit the states 75 highest scoring most socioeconomic disadvantaged public high schooltudents that , all of them would apply, that all of thewod accept is as unrealistic as you can get. So there isnt one stimulation that you put forth that achieved the numbers that are being achieved today. They are imperfect we have no racl otas. We dont have proportionate representi. But sh ma simulation in any of your two cases that reached the numbers for every ethnic group. That suggests the standard is a particular standard no, i am just saying we know representation for Asian Americans, for example, has growatically over time as their numbers and the lations have increased so have their admissions nu but i am just saying if we dont have proportionaty and no one is seeking that because that would be a racial classificati. If we have improvement, all i see in your models is we step backwards, we dont step forwards. I disagree for a couple of reasons. Tell us what the reasons are. The District Court basically conflated the educationa benefits of diversity, which is the interest that it recognizes with all reprention on campus. I dont think those two things can be tied. There isnt any evidence in the record by unc which is supposed bear the burden of proof that having a black population of 8. 6 versus 8. 4 results in fewer benefits of education. Thank you, counsel. Thjustice in a moment. O Justice Thomas . Justice alito . Justice yor . Just to finish that point, we do know when numbers decrease in schools like the university of california and michigan, t upper tier schools in the Oklahoma School system, that blks have reported feeling isolated and having their voices yes, although the correlation offered in the briefs breaks down, if you look at the underlying information, just to take california for exame,t uc davis which has africanamerican representation several points lower than uc merc, ere are less reports of isolation. You can see that at unc, native there are some students under the policy who report feelings rial isolation. Native americans who have a small percentage of representation on campus compared africanamericans report feeling less racially isolated. The suggestion that that can be the standard is insufficient. Justice kagan . This is off the track. But you made a reference earlier in your remarks ougender differences. Theres a lot of statistical evidence thasuests colleges now when they apply genderneualriteria get many more women than men. And assume that continues b true so that using genderneutral criteria, you know, men are 30 of a class or 35 and the ivsity said that is nth healthy for our ivsity life nor is it healthy for society that men are so undereducated as compared to women. Could a univsi put a thumb on the scales and say it is important ate ensure that men ntue to receive college edatns at not perfect equality but roughly in the same ballpark . Well, of course. With respect to the equal protection clause th ibeen subject to somewhat lesser scrutiny than racial classifications,en if they could justify them under this courts equal protection jurisprudence, i dont think th can justify racial classifications. Youreight about the levels of scrutiny, but that ulbe peculiar wouldnt it . , white men get the thumb on the scale but people who have en kicked in the teeth by our society for centuries do not . Our position is white men could not get a thumb on the scale. That sounds like a racial qualification. Not white men. The answer i cld you see intermediate scrutiny in that case . I dont know. We have never said that gender differences, the court never suggested toourt protection clause rises tohe inherent insidious level that racial classifications d this case is about racial classifications. Justice gorsuch . This court in the Virginia Military Institute Case said gender would be impermissible basis for discrimg against applicants there. The situation was sewt different and it was a total exclusion if i recall correctly. I do not want to concede that there would ever be appropriate plac to have a sexbased characteristic. Im just noting it idierent. How about religion, for example . Me evidence that harvard adopted its holistic approach because it was in part concerned about burdening the jesh applicants attending and were looking for a way to reduce the number of jewish personsitut resorting to a quota at least, that is what we been we have been told. That is the history, that is an illustration white pti something in a holistic process doesnt prevent the effect. Thacial characteristics. Ognized i want to ask you about title vi. Title vi says no person shall be excluded from participation or be sjeed to discrimination under any program or activity that receives federal financial asstance. Justice stevens argued wter the 14th amendment blo, title vi does not permit the use of race. You did not make much of that point in your briefs. I just want to undd why. In our view with the educational ntt, their there is not a difference with how the 14th amendment shldead and title vi should be read. We understand some view the title amore clear language. It hasnt been briefed and i dont think it can be justified as some sort of constitutional avoidance because the titutional question has been incorrectly so you would not be avoiding a constitutional decision, just arguing a bad decision on the books. Justice kavanaugh . Youre ainus to overrule but first i want understand what want to understand what you think it means. It had language about a 25 year limit. The decision was in 2003. The current admission cye s for the class of 27. It would be too late to do anytng about that cycle. The next is class 28. When do u read or do you calculate to the extent you consider it at all the 25 year limit, more broadly, how should think about that which was part of the importarraphs important paragraphs about the importance of race conscious decisionmakg ing timelimited and temporary . We do not understand that 25 year limit someh t be hard and fast requireme, rtainly different justices took differing positionss to you think ago for 35 or 50 years . I think the language at least haan aspirational element and for a reason. The paragraphs are receive that closet make very clear about they want the use of race to be diminishing over time and they want colleges to be looking a ways to get away from race. The record in this case indicates that is not happening. The head of uncs raceneutral Alternatives Committee testified if the racial bution on campus was 20 africanamerican, 20 asian am, 20 hispanic, tive american that was still not sufficient. To convince them that they wou stop using race. The chan saw the highest level of minority representation, that would be notufcient enough that they should stop using race. The second question, little off track here, but were thinking abouthawould happen if you prevail in this case, an amicus brief from Catholic University that say private religious colleges would have a freexeise right to continue to engage in affirmative action e it is part of their religious mission. Do you have any views on that . I dont know i have any specific views on that breed. Brief. Ically there has been sometimes conflation of race and religion. I think some people would have thought hs policy was racial ased to religious. In the 1920s. There may be difficult questions but i think in this case, there is no suggesonhey have any rule to play. Thank you. Justice barrett . Mr. Strawbridge, do you agree universities have educl benefits at large but having difference of genders, different viewpoints in e assroom because of the educa benefit of bringing different perspectives to bear . I dont think the compelling intere qstion can be answered apart from what the policies being considered is. No think it is to justify i understand that. Do you agree they have a interest in . I have no doubt. I agree universities have an interest in the broadly defined in achieving the probably defined diversity sometimes talked about in grutter. How would you suggest they go about achieving that . Lets say you prevail but ersities still have an interest in assembling diverse classes, full of students that brinerent expenses and experienc a perspectives to bear and they decide not to adopt the 10 pl. So i assume it is all done in holistic review. Yes. Theres nhing wrong. Holistic review takes place today a colleges that do not use race as a factor so theres no reason to assume and no evidence in t rord that students of those colleges are not receiving educational benefits of diversity. I guess what im concerned about if it puts a lot o pressure on the essay writing and holistic review process. U could i viewpoint discrimination issues i would think depending on how admissfficers treat essays. You could have free exercise claims not by religiously affiliated universities want to who want to gnds lets say to lds students but if you have harvard saying we want this many jews but also this many christiais many muslims in a classroom. I guess we dont need to undeta grutter in part the interest in this broad diversity justifies kind of background managing the populations on campus in the way youre suggesting. I dont think the universities are doing that in respect to ciconomic diversity. Number of socioeconomicallyn the challenge students that theyre willing to admit they havent said that so im not sure it follows on therio where we prevail that it is going to affect one way or another the holistic process. Florida is holistic. The california system is holistic. Michigan is still holistic. Justice jackson . Two questions. Is there any indication from this rec that unc is doing the micromanaging youre talking about with respect to racial classifications . Did not see they were shooting for a particular target or there was a goal i thought in fact reviewers went through the process,hedid not even know how many other students of color had been admitted and if they didnt know, they had to be recused so they are not operating this system, i thought, to reach toward some sort of racial goal. Am i wrong about so the policy is they are not who were reading files were allowed to see that. So the policies that theyre goal . Eaching toward some sort of the post litigation no, i woulnogo so far as to say that. In particular d look at the race have a neutral analysis that uncs experts profand this is throughout the record, even in the admissions he little time. I am sorry. U say they change the process but now theyre looking they are not racebalancing in that same sense . I think they measure their standard ahat they could achieve by whether they can replicate the precise levels of diversity today. Let me ask another question because i take it your position is unc is allowed to conside other nonracebased personal characteristics of individual applicants like someones status as a por a military veteran or disabled person and give pluses in the current holistic environment for tho aracteristics without running afoul of the 14th amendment. Is that right . I think that is gly correct as long as the criteria those not they could give pluses. What im worried about is that le youre advocating that in the context of a holistic review process university can a univeitcan take into cot and value all of the other backgroundndersonal characteristics of other plicants but they cant value race. What im worried about is that seems to me to have the potential of causing more of an equal protection problem than it olving. The reason why i get to th possible conclusion ishiing about two applicho would like to have their family background cdid in this applicatnsrocess and im hoping to get your reaction to this hypothetical the first plicant says, i am from North Carolina. My family has beenn is area for generations, since before the civil war. I would like you to know that i would fifth generation to graduate from the university of North Carolina. Do that and given my familyo background, it is ant to me that i get to attend these university. I want to honor my familys legacy by going to this school. The Second Applicant says, i am from North Carolina. My family has been in this area r generations, since before the civil war, but they were slaves and never had a chance to attend this honorable institution. As an africanan, i now have that opportunity and given my family background, it is important to me to attend these university. I nt to honor my family legacy by going to this school. Now if i understand your no race conscious admissions rule, these two applan would have a dramaticifferent opportunity to tell their familys stories and e them count. The First Applicant would be able to have his famil background considered and valued by the institution as part of its consideration of whether or not to admit him while the second one would not be able to because his story is in many ways bound up with his race and e race of his ancestors. I want to know based on how ur rule would likely play out in scenarios like why exudg consideration of race in a situation in the person is not saying his race is something atas impacted him in a negative way, he just wants to have it honored just like the other person has their personal background family story honored why is telling him no not an equal protection violation . I think because if it is the racial aspect of the application, the equal all races be treated equally. Certainly, unc should not give a legacy benefit. If they dont want to give a legacy bennett. Theres no obligation to do that. Isoy, said it was ok if they give him a legacy ben what i am saying is if it is in almost exactly the same set of circumstances of student or applicant who is africanamerican and would lik to have the fact that he has been in North Carolina for generations and they never had a chance to go to thechl, honored and considered and it is bound up in his race. You say i think we are not allowed to say that and the universities not allowed to take that into account,ecse it relates to race, precisely because it relates to race i think you might ha an equal protection problem in saying he cant g credit for that one someone else can. Or the hypothetical i am assuming that the only significant factor in thsty happens to be of the race of t applicant and the race was priously barred from attending unc. Nothing stops unc from honoring those who have overcome slary or recognizing itsast, contribution to racial seegion. The question is is that aas to make decisions about adssns of students born into 2003, i dont think it necessarily is. The protection clause do n suggest there are many factors in an application like thathamay be appropriate to firstgeneration college or including if they are ciconomically depressed repressed. I dont think the equal protection clause permits the decision to hinge on that. Tha, cosel. Mr. Park. Diversity is our nations greatest source of strength but as a reconstruction founders understood and our natns history understood, it poses unique challenges to the americanxpiment. We live ia rge and sometimes unwieldy democracy and for that democracy to flourish people evolve different background have to learn to live together and unite for a common purpose. It was browns to prepare r citizenship. It thenirsity of North Carolina at chapel hill seeks to fulfill browns visn by assembling a stuntodyha is diverse among the dimensions that matter in american life, including race, but also social class, geography, military status, intellectual views and mu me. This learng vironment helps us seek truth, ilbridges across students of different backgrounds, and critically he, uip students twork effectively in a diverse society. The university pursues these interests in compliance wh this course president s. Which has held for decades that seeking educational benefits is a compli interest of highest order. Universities may consider all asctof an applicants background to build a thriving campusommunity. The correctness of these president s is is confirmed by the historical record which shows beyond doubt our reconstruction founders believed that race cocis measures designed to promote integrated learning environments were coisnt with the original puic meeting of the equal protection clause. To be clear. Unc would like nothi me to achieve then to achieve its aims through educational means it has scenes setting itas seen steady progress towards this goal. The unirsy retains a partial interest in prenng the backsliding that would occurf this court took away the power to decide its important social policy issue from the people in North Carolina. Mr. Park, i heard the word diversity quite a few times and i dont have a clue what it an it seems to mean everything for eryone. You gave some examples in your opening remas t i would like you to give us a specific definition of diversity in the context of the university of North Carolina. I would also like you to givus a clear idea of extlwhat the educational benefits of diversity at the university of North Carolina would be. First, we defined diversity the way this court has an court precedents. Which means a broadly diverse set of criteria that extends to all different perspectives and backgrounds and not solely limited toac there is factual finding that there are many different diversy ctors that are considered as a greater factor inurdmissions process than race. We have a particular interest in recruiting and enrolling ral north carolinians. In the last incoming class, four out of 10 students that entered the campus doors were fr ral or carolina and one out of 12 students has mity affiliation, including the most veterans on campus since world war ii. We value diversity of all different kinds in all the ways andllhe ways that people diff iour society. On t ecational benefits question, your honor, i dont think it is disputed here that there are real and meaningful educationabefits that come with diversity of all kinds. Ja546 agreed enthusiastically on the stand that racially diverse, and diversity of all kin lds to a deeper and richer learning environment, leads to an exchange of ideas and critically reduce bias between people of different backgrounds and not lely for racial backgrounds. You still have not given me the educational benefits. I did not go to racially diverse schools but there were educational benefits. I would like you to tell me expressly when a parent sends a kid to college that they don necessarily send them the have fun or feel good or anything like that. They send them treo learn physics or chemistry or whatever they are studying. So tell me what the educational benefits are. He are three main buckets, your honor. E first and i think most pertinent to the question u asked is the actual truth seeking function of learning in a diversenvironment. I would direct the courto e major american businesses brief which discusses an extensive rigorous peerreviewed literature that diverse groups ofeople actually perform at a higher level so the most concrete possible scenarios stock trading. There are studies that find raciallyivse groups of people making trindecisions perform at a higher level, make more efficient trading decision the meanm is it uses reduces groupthink and op have longer and more sustained disagreement and that leads to more efficient outcomes. I gue iont put much stock in that because ive heard similar arguments in groups of ifavor of segregation, too. I would like to go to something different, to deference in the area of compelling interest. This court in grutter did not specifically put the test to chigan as far as diversity being a compelling interest. I would like you texain why in this area of strict scrutiny we have a lower standard, we defer to the accused, discmitor in the instance of sex discrimination at vmi, the accused discriminator was put through the test and the court did not defer to the vmi but deferred to michigan. Why that deference and why should you note eated the way we would treat someone i e title vii or title vi case and shift the burden to the discriminator to explain the conduct . Our understanding of the deference ts court provides theefence we request is quite limited, your honor. We ask for deference in terms of our Educational Objectives a nothe legal questions of whether those objectives constitute propelling interest. Compelling interest. I think it is prtylear to see why. I think it is similatohe vmi context. Like i mentioned we have made it a systemwide priority. The court denied defer did not defer vmi. I think it did to an extent, that it held the interest and rigoro mitary education. Its an iert that the institution hadunc decided that were going to completely change our Educational Mission d ke it into an institution like vmi. The analysis would proceed with that educational oecve in mind but we do n te the position that the compelling interest standard was not subject to deference. Just to followup on Justice Thomass questions about diversity, again these holistic emissions approach admissions proach stem from 1920s harvard. They were used as cover for quotas for jewish persons the university felt that they had too many students attdi i guess im struggling t understand how you distinguish between what this court hasai is impermissible with what you are ould be permissible Going Forward which is diversity, how can you do diversity without taking account numbers . Theres two pate points i will like to make. On the sordid sty of the early holistic process i dont think anyone had ever accuse the university of North Carolina i am not suggesting that. We took our cues from this court from the decision. I understand that too. My question rather than circling arou i how can you do diversity, which is what you are arguing for, without taking account of numbers . Our interest in what we agree is individualized holistic review i think there has been a lot of misconception. You have to cheat diversity, that is the goal, hyou do that you have to achieve diversity, that is the goal. Without looking at numbers. W do so by looking at the individual applicants. We do not have some sort of racial target aarget for other diversity measures rated for example we dont say we want to have 10 of our cla ring military veterans. We value and we look at each individual. What is your goal and how determine whether your goal has been reached . Our goal is to achieve edational benefits of diversity. I understand that is a alitative standard difficult to measure. I do not believe the standard merely being qualitative means it is not susceptible to rigorous review. If i canivan example. We are subject to a statutory mandate that we created an open and tolerant speech environment. For all sorts, even those who may find it disagreeable. We engaged in the same kind of analysis to whether we are eting the standard. It is a survey based. Your brief repeatedly refers to certaintudents as members of underrepresented minority. What does that mean, why is that significant . This is helpful. Because this pierces the main minderstanding about how our process works. We do define certain groups based on their overall representation in the state of nortcalina. That stems from unknown agreement that the North Carolina entered state of north rona entered with suppose you assemble a student body in whi vious racial groups coincide almt exactly to the percentage of those racial groups in the general population, would you say, now we have done it, we have achieved diversity . No, your hor. I dont think we would say we need to reach those levels either. They should stand up and say we should be doing far more. We are trying cply with this courts precedents which requires consideration of a holistic basis. Grutter also says using racial classifications a potentially dangerous however compelheir goal. They can be employed no more broadly. Going down further, all governmental use of race must have a logical endpoint, reonle duration limits and race conscious submiio es. Iather, the justice as saying, when does it end . Dangerous. Ys this is so grutter does not say this is great. Grutter this is dangerous and it has to have an endpoint. I hear you telling Justice Alito there is no endpoint. I apologize gave that impression. Three points on the nt. We enthusiastically embrace the durationuirement and we have tried to dything possible to adopt race control to race neutral alternatives to minimize our consideration of race. In university, our endme on the record was 3 million we have spent well north of 3 llion on to try to recruit low income students across the board. The rsgeneration rate control and the second try to expand approval. Expand the pool. We have an Extensive Program where half of our transfer students how do you know when you are Justice Alito said if you have exact correlation to the number of percentage in the population of a particular group and you said you are not done th. So when would ve the endpoint . I appreciate your undertaking all tse efforts but when is the endpoint . We do not need to reach that point for us to feel we ha m our diversity goals. What we are doing today we feel we are achieving the educational benefits of diversity. Is it sufficient . I think in that scenario, it might be likely that our qualitative process in consta examination of our Campus Climate may reach a point we m fl we have reached the educational benefits of diversity. I just want to be very clear on the endpoint. We think that history shows these programs can and do end. The early programs that was mentne principally many of th benefited white women. The federal Contractor Program this court upheld included Asian Americans among the beneficiaries. We have acd a point where we fe ware able to minimally consider risk. Ace. I dont see how you can say the program will ever end. Your position is race matters because it is necessary for diversity. Which is necesor the sort of education you want. It is not going to stop mattering at some particular point. Youre always going to have to look a because you say race matters to give us the necessary diversity. There are two different questions there. Weont think the compelling interest in diversity will ever expire. The question is whether race conscious measures need to be taken into the measures process. Admissions process. Young to have to check. Youre n gng to know if there are a sufficient number of africanamericans to give you the dirsy you say is necessary if you dont look and ec there will be some attention toumbers but the feedback loop on the campus and the admissions ocess, we will celebrate the day we get to the point where we have reached the point where we do now with our minimal consideration of race. The difficulty you are having answering some of these questions about endpoint were probably in the mind of juice oconnor when she wrote the opinion in grutter for t majority. As jti barrett said these , qualifatns and must have a logical endpoint. Instead of leaving it vague,ou didnt say until you reach a point eryou are satisfied that diversity has been achieved or Something Big like that. It said 25 yea ithat. I want to hear how you address at part of t gtter precedent. I understand your answer, you would extend it far beyond 25 years indefinitely. That would be an extension. The reason it is there, its re iortant because there are four paragraphs leading up to that. The difficult youre having answering the question iabout when it would otherwise be hied. We dont read the 25 year as some sort of strict expiration. On his face i dt think it was structured as such. Even the chief justice said it s on a fixed deadline. Justice thomas in his sera opinion referred to it as a holding. Justice kennedy rerr to it as a pronouncement. Make sure the full picture is presented. Every institution in every state will dfe we have states coming to the urt saying we have reached our diversity goals. Weot need to engage in any race conscious admission process in our state flagships. We are athe point where i ink the expert evidence shows we are able to meet what we feel is an inclusive diverse enroent. Through minimal condetion of race. We will t ere based on this qualitative process. There is no strict miracle benc one of the things the other side is emphasized is to dad since grutter, two decade since grutter, we have more experience with states that dont allow racebased admissions. California, florida, washington, michigan and others. Those examples nowhowith greater confidence then we had in 2003 atome of the questions were asking before cannot have the risk of treating , people differently on a basis of race on the file. Buat the same time produce significant numbers of minority studentsn mpuses. In se ys the experience, they say, is relevant. I would be interested in your response about how to think abt at. The experience of the university of michigan and california system illustrates the point im yi to make. They say in their peence it is by campus by campus analysis. In particular the most selective puic universities are continuing to ha mor struggles. Particularly in rolling a sufficientumr of africanAmerican Students for them to reach their educational goal. I would direct the court to the california brief. What ty y they are experiencing is there is an inverse reliohip bwe africanamericantunts and their sense of belonging and tokenism andsotion with how selective the university is. That is why you are seeing this wide spectrum of progress towards the day we are looking towards where we no longer have to consider race. Can i ask a question following up on Justice Thomas on what diversity means . Does the university of nor carolina consider ones religion . We consider it as a part of our holistic process. Explain how that works. Yes. This is helpful. It is the exact same thing we do for all of our other derty goals. It is inxt, an assessment of an individual applicant, their relibackground or religious experiences suggest they might contribute something to our campus community. That can be considered a positive attribute. You have them check a box for what religion they are . We do not have them check a box. How do you know what religion the majority of africanamericans are . It is not pegged to the admissions process but we have a whole range of programs to try to ensure an open and tolent religious environment. We engage in the same kis surveys and Qualitative Analysis of our campus communy. We are finding we feel we are meeting our al we still have some struggles withhe jewish and Muslim Students feeling like they belong on campus. Is the checking of the box with response to race, voluntary, is it something students are required to do or something they do on their own as a part of the process . That is entirely voluntary. You donknow what the race is of all of the applicants are coming into your community from the admissions standpoint . That is correct. Can you answer a queson about us history of exclusion. You mentioneiteveral times in your brief. I would likeo derstand to what extent that matters with diversity interests you are seing. We are t rsuing a sort of remedial justification for our policy. T do think our universitys history is relevantohe diversity analysis in two distinct way first, it helps explain why the progress we have been pursuing is behind the university of okho. We have a uniquraal history in our state. All these programs take society as they find it. T might account for why the 25 year expiration deadline cannot be blanketly applied because we start in different places with respect to how race has been considered to exclude people in our various communities. Yes, i agree very much with that statement. Justice tho what is the percentage difference between a nonracial approach and the approach that you are taking . T eert evidence in our case suggest for 1. 2 t african pool as a whole affected by our race cscious Admissions Program. Hothat works out in the relevant denominator is the number of underrepresented minorities on campus which is far lower than the number of rural students, even less for firstgeneration cle students that we have. Do you think that 1. 2 main difference is enough of a compellingntest to continue a racebased program . What we have tried to do is follow this courts guidance for number of cases where the court has said it is a hallmark of narrow tailoring and ofhe hallmark of constitutionality that we consid re minimally. Seeking the educational diversity is a continuum. We think we would not face some of the struggles that we din terms of admitting and enrolling underrepreseed minorities to a larger extent. But we have chosen to be guided by ts courts precedents. If someone is bringing a discrimination case against the university of rt carolina and the racial difference composition was 1. 2 , would they have stated a claim . L mmake sure i am understanding. I think that it goes to the issue of what you need to show. If someone is bringing statisticaanthey say the difference between admissions in group a, racial group a is 1. 2 more than racial gro bwould that be enoughor discrimination . It would be enough to state a claim that someone hasee affected by a policy. One other thing to point out is there e her aspects of our policy in terms of what judge jackson was getting at that have an inverse impact. It could have an impact on the other direction. Iss one of the Major Concerns that would arise if i is overruled. Your response to the argument that these racial categories are so broad that any use of them is arbitrary and therefore unconstitutional. What would you say to a student whose family came from afghanistan and doesnt get in because a student doesnt get the plusacr that a student would get if the students family had come from someplace se would you say to the student we dont need you to corite to the diversity views at our school because we aladhave enough asians. We have a lot sdents whose families have come from china or other asn untries. Anthstudent says you dont have anybody like me. I am from afghanistan. What does a family background from a person from someones background is in japan . What you are describing is the pote of how our process works on an individualized bas. There was a vietname sdent in the Admissions Office who emigrated to a remote part of North Carolina and she testified undisputed tt at was a favorable aspects. That is an individual aspect of the application and something that has to do wh r experience. What is the stication for lumping together students whose families came from china with someone with someone whos mi came from afghanistan . What do they have in common . That is a strange rule and that is not the ru ts court has established. Why do you check a box that i am asian . What do you learn from the mere checking of a box . It depends on the individual circumstances of that person. You dont need the boxes at all. It is not true on an individualized basis. We intend vigorolyo recruit and enroll rural students. We dont ask them to write an essay abouhotheir rural background affects their experiences. What we says at person comes with something tt we value. They may choose to write about it. Why do y ge a student the chance to say this one thing out me, i am hispanic, i am afrinerican, i am asian, what does that in itself tell u . On an individualized basis it can give Important Information out where that person is coming from, what their experiences have been. This goes to the heart of the dispute to whaweave from the parties. They say on page 53 of their brief that race says nothing abt who you are. We dont think that itr when you look at American Society as it exists. In the context of everything we know about an applicant, it can matter. It can matter. Not always. There is not aaumatic given. But it can matter. Let me just say, th ia real problem. I have heard it derid to me by people who face it. When can a sde honestly claim to fall within one of these grpshat is awarded a plus factor . Lets say the student has one grandparent who falls within that class, can the sten claim to be a member of an underrepresented minority . Yes, we rely on Self Reporting. One great grandparent . If that person believes that the accurate expression of their identity one great great grandparent . It was seem less plausible that person would feel this is capturing my true racial identity. But the same is true for any other diversity factors. We have an ancestor that was an American Indian. In that particur circumstance it would be not accurate for them to say. I identify as an American Indian bau i have always been told that some ancestor backn e old days was an American Indian. In that circumstance it would be very unlikely thapeon was telling the truth. The same is tr, rely on Self Reporting for all the demographics and chartestics we ask for. That is the whole point that checking the box is not what gets you point. Right, right. One helpful illustration of this point, at their own Analysis Finds the most adecally qualified student, Asian Americans and white americans have a higher acceptance rate of ack students. This is their own eviden. The District Court commented that is a particularly strange result that thei characterization of our admissions process are accurate. On this issue of when thi will end, some states have relied on completely race neutral with race not beg small factor anymore. It has been the systems themselves choosg is. Isnt that the case in florida . In florida there is an executive order. Its instituted by institutions for georgia for example. Your adversary e doesnt see the 25 years as a set deadline. It was an exction. What we know, we have nine stateshoave tried it. Each of them, white admissions have either remain t same or increased anclrly in some institutions the numbers were underrepresented the numbers for underrepresented groups has fallen dramatically. Correct . That is my understanding. What we also know in those 25 years, the raciadiarities have grown dramatically. Seegion has grown. The disparities betwn comes has grown and so has the effects in terms of the resources that underrepresent gups received. That matches much of my understanding. I understood the judial court found unc on a continuing basis reasserts its race neutral factors and is constantly monitoring whether they have reached meorm of representation adequate for their system regularly, correct . Yes. That was your point. We cannot tell you whether it is going to end in 2029 or 2030, but we are not just assuming it ll continue. We are looking at it regularly to see when it ends. Correct . Exactly, your honor. There is quite extensive infrasucre the university has established to monitor our progress on this. The committees include some of thwods leading experts in doing these kind of qualitative assessments. Something that we are continuing pursuing right now and the many other projects ongoing for us to try to reach the dre we can find. I would like to ask you a hypothetical. The unerty has to demonstrate race is narrowly taor. Universities also have all kinds of plus factors they use. For legacies of alumni, for donors children. For squash players there are plus factors. Because we need thos can a wealthy University End those for wealthy white for children of wealthy white parents . Those are not i understand a hypothetical is not your case and you dont like i could you take a shot at it . Legacies that is not i understand. I have had to face hypotheticals i didnt like. Strict scrutiny has to be establishe wlthy university and it still prefers all of eschecks for these kinds of persons, not for their academic merit, but because it would bring diversity inheorm of a sports team, or they mig bng a new art museum, we have to admit that kid because his parents are going toone an art museum. Suppose the university could achieve race neutrlyll of its diversity objectives if it eliminated those preferees would schools be required to do so . I would say yes if three things are true. That alternative would have to also match the compelling inre. This court has never recognized compelling interest a squash team comseof really good players or an art museum . There is ncoelling interest in those things you are telling us . Right. The alternative didnt have a effect on broadbased diversity. Our main objection to the argument we have great socioeconomic diversity, great religious diverse would just have a crummy squash team. Then what . Tre would not be a material negative impact on the acadec vironment. So the gpas areoo same gpas th wt . The third would be that specific goal of racial dirsy is not undermined. In those specific conditions, i agree. How are applicants from middle Eastern Countries classified from jordan, iraq, iran, egypt and the like . They might not fit within the particular boxes on the application, they can volunteer their partul country of origin. If they honestlchk one of the boxes, which one are they suppedo check. I do not know the answer to that question. At can say is that if a person from a middle eastern country self discloses their country of origin they would be considered in the meay we consider any box that matches one of the boxes available. An individual holistic alys. There would be a similar positive analysis that a student kehat would contribute. And we do track after the admissions process, religion and country of origin. I had one more question about endpoint. Alan bockey would have been born into a prebrown world and then we had 25 years and says we nnot imagine this language is going to go on more than another 25 years. You have been pressed about what is the endpoint for you. This is the time, the 50 years since they s accurately diverse populations ofty in universities has beeicult. What if it continues to be difficult in another 25 years . You have repeatedly said the 25 years is aspirational. Yt think the university of North Carolina has to stop 25 years. What are you saying when youre up here in 204this indefinite, is it going to keep going on . It isully selflimiting in it requires aggressive and neutral alternative. Race it is a dial not a swi what we have made since gruner shows at the univeof North Carolina we have dialed down. Weave had around 70 of underrepresented minorities determined improvement numbers are far smaller. We anticipate we will be able to dial it downo ro. Threason why i feel confident in that is because of good routers requirement that we continue exploring race neutral alternatives. The university of North Carolina has done so in continuing to monitor. J jackson . We heard a lot about chec e box in the context of the claims being made in tse. I am concerned that might be co about the implications of that. This box is on the common application. Form of any sort . H carolinas every student who out the common applicatim has the ability . Correct. Have you seen one of these forms . I dont know if they are in th record in this case . T might be completed applications. So it might be tled appendix. We have this form that all students applying to any college caus i understood the form was reduced to tell us about yoself. You put all sorts ofhis. It is not a separate piece of paper that says this is about race. It is just who are you and in the context of that studts check and write in all kinds of things. Am i wrong about that . The form has evoler time. I cannot say for certain the form on the rerdt the current form does allow for more selfdesipon about the any form of race. It is not like we ha tcare so carefully about what are the categories in a caucasudent could check caucasian. Just telling who we are in the general matter. Right . Yes, your honor. Does North Carolina require anybody to fill t e box that has to do with race on this form . No. So there y some people who dont put anythi race . There certainly are. Isnt the qu what North Carolina is doing with that information . Just knowing that you have people from different races applying to your school is not working and equal protection violation is it . I agree with the sentiment behind that question. The language of racial clasfition has been listed. It is race consciousness. You are not doing sometng different with the people who check the box and put certain categories . Everybody goes into the holistic process of looking at all kinds of other things so that race is never the only criteria that a is evaluated with respect to . Is that right . Absolutely. The District Court made findings on this regard. Even ifouheck the box, i am africanamerican, latino, i live in lace, if you check the box, in North Carolinas system, do you get a point automatically for having checked that box . Absolutely not. Anybody w d check the box, are they automatically admitted into the university as a result . No. Given a holistic review process like that, is there a sk of treating people applicants to talk about thatome aspect of their id . I hear a process in whicthe is a form that says tell us about yournd people can put all sorts of things. I am catholic, i am from los angeles, i am latino, whatever. Bunow we are entertaining a rule in which some people ca say the things they want about who they are and have that people are not going to be able to because they wont be able to reveal they e tino or africanamerican or whatever. I amed that that creates quity in the system with respect to being able to expre yo identity and have it valued by the university when it in different people. Of bringing is that a crazy worry or is that something i should be thinking about and concneabout . Not at all, your honor. We are very concerned with that sue. That if race is the one thing, or if there are other factors to heightened scrutiny, that only those factors cannot beondered then anyone with a background or perspective that esnt fit into one of these categories wont ven advantage in our admissions process. It is a mathematical exercise atou artificially say only certain people can tell the university about some of their imrtant aspects of their background. Underrepresented minorities are barred from doing so, all people cannot discu t racial background certain appli will be subject to a disadvantage. Thank you, counsel. Mr. Chief justicemait please the court. Th crt Must Stand Firm in its commitment tring rasul ensuring racial equality. From thero case to bucky and gruner, this court has reco paramount roles the integrated education across cial interactions played in building a true democrace pathway to leadership are visibly open to all qualified candidates. Brtempted to shut down with but start racial have shut down this approach. Qualified students of color whoy are often overlooka process that typically undervalues their talent and peive. Racial diversity and its socia and academic benefits help all students to be better prepared to work and live togethe make this nation better as a whole. We hde progress but many colleges are not there yet, including unc which grapples with over 160 years of exclusion in its presentday effects. I welcome the courts questions. If this were e vi case and there s allegation against discrimination against the unerty of North Carolina, who would come forward . Is it within strict scrutiny . No, just title vi. A nclaim of discrimination, the plaintiff would have that to come forward. To come forward initially but then when the plaintiff makes its showing, then wh . What is the burden on the accused . Not entirely clear from the case i am aware of. Any case where the courha deferred to the univsi or to the alleged discriminators policies . I dot know whether or not this has been answered in title vi case, i title vii case, yes, then the verdict would shift to it might bthe employer. I cannot think of another area or anotr se where the court deferred to the alleged discriminator on something as important as compelling in. We dont do it in title vi, we dont do it init vii. You have md douglas, you haverlgton heights and and this is the first. You have a framework that defers onhe critical issue in the case of compelling interest. No, your honor. It is consistent with this cas judging strict scrutiny. Ork in let me make a coupleints. One is on the discrimination point, this is not discrimination per the limited consideration of race istic fashion as this court has approved is limitation subjectrict scrutiny but that process is trying to filter out whether or not we have a lete purpose for this or not and whether or not there is compelling interest that may be sought and achieved. If thisasinvolved a School District in virginia in 19 tt is alleged to be discriminating, with this court derred to its assertion that races do better when they ar segregated . Absolutely not. But that is not this case. Th case is about a limited qualification that is not what italking about. I am talking about the courts deference in that ca. The court would put virginia to the test. In this case it does not and i am asking you why the difference . In this case, your honor, it actually is. The university has a high burden of demonstrating its compliance with this cots standard under strict scrutiny. The only narrow area that this Court Framework has deferred to e iversity is establishing its objective. But the wholework still requires a well reasoned explanation for seeking its own compelnterest. It requires the university demonstrate there is no racial alternatives that will about as well. That burden is still heavy on the university to demonstrate compliancescrutiny in this case, the petitioner never challenged diversity was compelling interest, correct . Our own expert said race was a compelling intert. Leaving its burden of showing why that was a compelling interest. That is correct. There is a 155 page opinion based on significant analysis and testimony from the university administrat the cirxamines whether the universities interest was eay measurable and precise, didnt it . Yes, your honor. So it is not much deference. Do not know why that word is being used. That is correur honor. Y put on extensive evidence about the history of racism in c. Correct . That is correct. Including the history of its founder. To help educate the chilenf slave owners. It went through segregation way after brown, correct . Up to the 1980s. But you didnt stop the. You presented evidence about the continuing confederaics that exist on campus. Yes, your honor. Heontinuing White Supremacy marches that still go on. The racial epithet that the minority of underrepresented groups are experiencing ts day. Yes, your honor. Given that your adversaries says that race can be used to correct past discrimination, why is iinhis particular university appropriate to use race as one factor among many to address its history of racial dirimination . As it is continuing affects on campus . I want to clarify one poi is that we are not suggesting, the university is not either, limited considn of race in this case is being used in order to address it. The reason for importance of entday effects of past through compelling testimony of the respondent in this case. About how those present day affects their value. The relic and seeing thote supremacist come in march, which of course is a First Amendment right, but it doest ignore the fact of how those students feel during those moments. It alscts their education in the classroom. Its not standalone you have hypersensitive studes acting to these marches and these other duties on campus, but it is also making sure outhe impacts on the clas it carries forward and how it impacts reuient. Students of cor,hen they see less than one hundred black males accepted and enrolled at unc in the1scentury, when they see that and they hear that in all these presentday effects going on, that impact their decisionn ether or not they might apply, whether or not they may end up going to the great univsi of North Carolina. Individual incidents and facts that you mentioned were not in this case. The university were a at university that never prtid case would come out differently . It may. That is how and why we must not have a policy ro the board with limited consideration. You would perhaps endorse a system where a state universy has not had syndication would be prohibited from doing what north caronas doing . The important point here is benefits of diversity have been established that parr university. Here at the university of North Carolina of ur it matters a lot because it affects recruitment and retention and another university where it is not have been up a part of its history, it is important whether or not the university itse cannot establish its own educational benefit of diversity and satisfy that through narrowly tailored the university of michigan is a good example of that. I wont pretend to know the history of michin. I know they were were desegregation problems in districts. But ether or not it was an issue of state owned gregation, i dont know. Thank you, counsel. You have mentioned the benefits of diversity, but many on the others have argued race is that it sends the message at race is something you should consider down the le, of areas that they get thesorts message from the binng and 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 . Yes, your honor. Some of the resechas shown and i apologize if the court isn getting it but i what i understand the cos inquiry about some of the particular stigma that might be attached. It was ct that the school is telling students of thesers in admissions and e udents are learning that race should matter where it doesnt have the same justification as it would have under your view on admissions. There is no evidence in this casef e university of North Carolinas own decio enact unconscious admissions for much less than two negative consequences you he ared here. An unfair question is raised is race a consideration in the formation ofth types of activities tt udents are engaged in . That race permeates a lot ofefs what happens at the ivsity. You are shaking your head in a way that you dont agree with it. Well, your honor, it reminds me of orybook from when i was a child, henny penny. And the sky is falling argument. They are blaming that everything is caused by race conscis admissions but if you look at the research on the stigma ferenced in the aer brief it actually shows that race conscious Admissions Programs at universities actually have a lesser degree of stigmatched both internal for the student and external that they are hearing from otudents. With bans on im not talking about a stigma i am talkinabt student groups taking its cue from the uveity think we should take race into account for whev we are doing. Gain, your honor, there is no evidence in this case oho that correlates to any consideration of race at unc or any other university. Thank you, counsel. Justicthomas . I may be tone deaf when it comes to all these ohings that happen on campus, about feeling good a that sort of thing. I am reay terested what benefits academically are there to your definition or the diversity that you are asserting . Specifically, i know the kids feelove got studies that show people feel better and they dont feel isolated on and on. I am focusing on what you went to college to do. To learn somhi. Do you have anything that demonstrates that . Yes, your honor. And you are asng for specific educational benefits . Those would include fostering innovation, and the plenty of testimony in this case from professors at unc and from students themselves who have understood tortance of diversity and helping foster an finnovation. Rspective, engaging stud and this harkens all the way back to the painter case and the mclaurin cases were they acdge that racial interactions and dialogue between students, it helps tter prepare them for the world they are going to nd live in. There is reducing stpes for our own students who testified in this case. It played an Important Role in education. When you help reduce stereotypes d isolation, you end up impacting environmenta environment for all students because they areng their perspectives and not feeling isolated. So those are among the several educational benefits that have recognized and that we as the responding students su you make some very good points but reading it i was stru bthe fact that the word asian does not appear one me in your brief. Asian americans have been subjected to segregation, they ve been subjected to many forms of mistreatment and discrinaon including internment. Do you have anything to say this morning about the interest of students of asi bkground and how your arguments impact them . Yes, your honor. So two points. One is that discrimination against Asian Americans is wrong. I do not condone it. But, two, there are no claims developed by petitioner involving the mistreatment or maltreatment of Asian American udts. Think that was one of the problems that happened with the first brief is that they conflated their gunt against harvard which mr. Waxman will those arguments conflated the issues. There is no racial banng there has been a lot of talk about quota in this sethere is no claim about that. There is no claim against unc involving intentional discriminatiother students. That record doesntually what is your response to th simple argument that college adssions are a zerosum game and if you give a plus to a person who is falls under the category of an underrepresented minority but not to somebody else y a disadvantaging the latter student. Hats an excellent point but the record actually bears out commission plans and upthe operating and it is where an indivied consideration is talents, on the students onwn achievements. You are saying that race in and of itself, has no effect at the university of noh carolina . Absolutely not, your honor. You can have an opinion from this court you may not consider race youconsider other things but not the mere fact of face. He mere fact of race. You would have no objection to that . I dont know from insert your question with a negative want to make clear that we fully support the limited consideration of race as it has been authorized by this court. I dont understand your answer. Its irrelevant, then you ldnt care whether its ruled out. And we are not, if im articulating that, your honor, i dont mean to. Race within the context of an applicant may sidered as a plus factor. Race of itself may be considered a plus factor . Yes, your honor. And those who dont get the plus factor y ve a negative factor is that not the same thing . No, your honor because its looking at the whole applicant as they apply within their whole application and the resume, etc. T people are in a race and you give a plus factor to one of the runners so that renteret to start, if its a 100 yard but say he gets to srtive yards closer to the finish line. The onth doesnt get the plus factor is disadvantaged, right . That would be in that case but that case is not here. There are no bonus pointth are provided to any applicant at the university of carolina. That is fully ited by this courts decision and we are not suggesti tt it should be reinstituted. Justice sotomayor . Council, a race is sort of an artificial creation, right . It measures how fast you can go from pnt to point b, correct . In some respects, yes, your honor. What colleges are doing is not saying, they are not looking at the runners. They are putting them in this race, they areoong at the applicants, the students as a whole, correct . Yes, your honor. If we said that applicants from white schools can start here, if applicants from socioeconomic scoldont start here at the same place youre goi tpush them back, right . Yes, your honor. Swith the schools are doing is looking at all the factor try to put the students at the start as equals, correct . That is correur honor. It is not the one factor of any application that makes it diffen there is no evidence of race aying a decisive factor. There is zero evidencey, of any student who was accepted under race conscusdmissions plane is zero evidence of any student being analyzed for race or that that student if they were admitted, that th re not qualified. They all qualified under individual merit. Thank you. One question. Ondifference between your brief in your position and t university of North Carolinas is that from the students perspective anwere getting this into some of your answer about confederate statues stueand white supremacist groups is that from the studen perspective, you know the application out benefithe student might be in the form of counteracting feelings of isolation. Sticking out not being supported. I am wondering if you have anything to say about affinity ps and affinity happenings . I think one thing, and so i am aware that kind of a phenomenon where you have groups, say, wrelack students and allies can live or or black student groups same for hispanic groups, etc. Was not enomenon that was around then and i think one of the bs is it allowed minority students to band together to some of the feelings of isolation that you have been talking about. Do your clients have a position on that . Whatever we say or however we were the opinions the rationale aboutheducational benefits might have some bearing on tho questions that are posted. Yes, your honor. Those you invite very diffquestions and i think that is how and why potential cor ling from this court may disrupt things even further. Also certain conditions may apply on a casebycase basis. May not be making too much sense of what i just sere but in terms of affinity groups for example. Research shows affinity groups have incredible benefits, not just for its on members but in helping understand racial and cultural issues. Not my understanding that there are any affinity groups, especially for example, you know black student associations that im unfamiliar i know unc wilmington does does your client have a position on affinity housing . I do not know, your honor. Can i to return to Justice Alitos hypothetical which i think hpful trying to pinpoint the problem i have been having. It seems from the race hypothetical that tre was only one basis for giving someone a bond that basis was race, then i see disadvantaged absolutely to anyone else who is underrepresented. But i understood that we have here a program in which there are at least 40 diffenways to get a boost and not everyone who is an unrepresented minority gets a boost. Its hard to figure out i anyone is being disadvantaged anthat is what i was worried about because im trying understand how the system is operating to actlladvantage minorities in a way that is harmful to aonelse in the system. I think that attributes to e careful queue that unc has taken to this courts decision. Making sure universities find themselves in a problem about considering too much or too little. There are other considerations is the point. Everyo c get a boost for all sorts of reasons, minorities dont automatically get a boost this system so its hard to know whether anyone is in disadvantaged from the mere fact that a minority could get a boost in this environm right . Thats right. Evidence also bears out, the evidence shows that hundreds of whe udents with lower combined gpas and sat scores were admitted ahd higher performing black students. Latin students who went to unc, i think that there is a hallma of the type of individualized nsideration that this court wanted. Thank you, counsel. Mr. Chief justice and may it plsehe court, for decades this court has rightly regnized that student body diversity is a compelling interest that can juif limited consideration of race in the university aisons. That holdi rognizes that simple but profound fruits when studen oall races and background come to college and li tether and learn together, they become better colleagues, better citizenan better leaders. That truth is vitally important to our nationmilitary. Our armed forces know from hard experience that when we do not have aivse officer corps that is broadly reflected of the dirsfighting force, our strengths and cohesion and military readiness suffer. It is a ital National Security imperative to attain diversity within the officer corps. At pse, its not possible to achieve it without race conscious submissions including athe Nations Service academies. The military experience confirms that this court recognized that in a society where race unfortunately Still Matters in countless ways, achieving diversity n metimes require conscious acts by our leading ucational institutions. The courts precedtstruck a careful balance, race can be considered truly necessary but only as one factorn holistic admissions process that prioritizes and values diversity in all of itdinsions. The courld adhere to that balance today. Once again, would you tell me specifically what is incdein diversity for the es of education aneving educational benefits . Yes, Justice Thomas, and i would like to use the Service Academy and expand to you the Core Educational benefit to the Service Academies through eiuse of race conscious admissions. Really falls into two separate categories. One is the benefit that the courts precedenthaalready recognize like racial understanding which could have imcton challenging stereotypes and assumptions and leading to cognitive developments tt uld be perceived as early as the second arn college. It can inclu tngs like reducing offensive racial isolation and alienation a that has proven educational benefi iterms of encouraging greater participation by minority students. And the seconcagory that i would point to an the courts recognition it is necessary to have our leadership broadly reected diversity of our country and that is critically important because we have had experiences in our past where the officer corps and its racial compositiodinot reflect the diversity of enlisted Service Members and that caused racial tension so that is the benefit, that the Service Academies are seeking. Why cant you do it through race neutral . Raceeual is better. If one can achvehe kinds of objects that you are talking about that way. Why cant you after 20 years . It is absolutely correct that it is incumbent on universities and on the surfa ademies to take into account race neutral alternatives so they can achieve diversity and that is with the serve ademies are doing. Ey are trying to hold outreach efforts, try to solicit additional nominatio fm congressional districts, they have looked tother alternatives like socioeconomic references. That would increase the number wte men at the academy. Other race control alternatives ju dt work in this context for the surface academies. A top an wouldnt work because the Service Academies have to draw from a nationwide applict ol. They also have to prioritize and value other characriics like physical fitness and leadershi potential. I cant say that we arent able to get there allheay right now with race neutral alternatives, thats what the academies ha sdied but we are trained to make progress towards that goal. You have been precise about the Service Academies. Are you linking yourself to harvard and unc . Mr. Chief justice, we think its crital important for universiti toughout the nation to be able to prioritize thedational benefits of diversity and the rotc programs aralso a compelling interest for us here that exist at th civilian institution. But i guess if what you ar asking me is whether we think the military has interest in this context i would say yes and i think its important for the court i decision to make clear that those interests are, i think truly compelling. In that situation i suppose it depends on how significant u think the distinctions are. It might make sense for us not to decide the Service Academy issue in this case. I would ctaly ask the court to take account of those specific interest and i think to coize the compelling interest in a critical National Security interest. You might want to distinguish yourself in order to preserve arguments that are particularly applicable. Rather than take the position here which is youre going to be bod whatever we say with respect to the other universities. It is critically important to the military to be able to achieve veity but its also critically important because actually more officers come from tcrograms to try to protect and preserve space for universities to also achieve the educational benefits of diversity and provide e th programs as well. E in those what about a college that does not h rotc program . With the plan be admissible at a college that has a program be imrmsible at the letter . At the latter, the one that does not have the program . We are not asking the court to draw that distinction and all interest here does extend more broadly to other federal agencies to the federal governments employment pracceitself and having a set of leaders in our country who are trying to succeed in a diverse environment. That i dont understand the relevance of what youre saying between the link of College Needs of the military. Ce and the if it dt matter whether the school has no rotc program and therefore trains no officers. Justice alito i was tra to focus on the question. Just trying to makpoint that its not just confined to the Service Academies. We believe deeply in the value of diversity and the universities being able to obtainducational benefits that correlate. What you say about the military is something, you branch including the military, and we presume that you are reflecting the views of the military but what do we do with the fact that the United States waon the opposite side in the harvard case when the caseas in the lower court . And what do we make of the ments made by the predecessor . Were they insensitive to the s of the military . Only you have it accurately represented . Its true that the United States participated below on the side of the tioner but only with respect to the factual record andhawe thought the evidence showed in the case on the factl sues. We did not take a different sion on the legal interest here or assert a different interest on behalf oth military. With respect to the case whether diversity could qualify the compelngnterest in this context instead the participation of the united stat w confined to the narrow tailoring prong of the analysis. Predecessor asked specifically whether he thought that the military and the academies race conscio admissions were unconstitutional and he declined to say that they were. I do not think there is a distinction thataseen drawn. It hasnt been his consistent judgment of our senior military leers across the decades and across administrations incdi the last administration that it is critically important to our National Security to have a dirse officer corps. That has bn constant here. What was the factual basis the prior administrations support of petitioner here . It was on the factual issues with respect to athe evidence showed concerning the intentional information claim for it i should be clear this was lyhe harvard case. Didnthey put a brief in . Only the harvard case. And i guess what i would say abt at is its true my predecessor took a different view of the facts, the District Court rejectedhaview and the First Circuit affirmed the District Courts factuafiing. If the case comes to this court it falls within the courts rule of usually deferring to the findings of lower courts. Virtually all of the states th he consideration of race experienced a dramatic drop in enrollment of unrepresend minority students particularly black students and native American Students t particularly black students. Even that drop lasted they are not continuing now. At the most prestigious colleges and universitiescoect . Thats correct. There is a price to pay by banning the use of race in College Admissions i agree with that. And that means that there is a diverse, there is lesser number of diverse graduates that enter the pipeline, not just to the government, but to the private sector. Many of them require Higher Education so that pipeline is being reduced, correct . Tts correct. So in the end, our colorblindness, whatever that means becae r society is not colorblind. That comes at a high cost not only to unc and to the state and to the nioas a whole, correct . That is correct. And i think, again to return to the example of the military, the pipeline question is critically important because the military has a closed psoel system. That means we dont do lateral hiring. The individuals who are entering collegtoy and participating in rotc programs at civilian institutions or who are admitted toheervice academies art the closed universe are going to be eligleor leadership in the military in 20 and 30 years time. So if we overruled the diveitAdmissions Program across the nation based on those ses will have to be reformulated . Yes. We will have to, we are feing countless existing programs . Correct. Rucing underrepresented minorities . Priving others who are not there of the benefits of diversity . Yes. And we ardog all this because race as one factor of many that is never solely determinative, correct . Yes. Sounds like a lot to ask. Yes, your honor. But i do want to emphasize to the questionabt whether this will end and the questions that juste rrett and justice the 25 year context i do thinkt that eventually thern endpoint in sight and it comes directly from the courts narrow tailoring doctn this area. I think diversity in Higher Education is absolutely a compelling interest and it will remain so. Thats not going to change. Our society is going to change in a way that enables colleges to achieve and benefit educational diversity without having tta race explicitly into account. You want to give us a number . I cant give you a precise number but i can say that i think our society has madeom progress towards that goal. There are states today that do not take race in aount there are colleges and they have still been able to achieve diverse student bodi. So we are not here to suggest that every college a university in the country needs to have race conscious admissions in order to achieve the goals. The fact that there habe progress along these lines shows that it is working. And shows that our society continues to make additional progress a wl come to fruition that we will still be able to achieve it. Thats different fr wt Justice Oconnor said. She said race cocis Admissions Programs must be illuminated, that was a requiremt. So that part should be disregarded . No, not at all. Th court made clear and reemphasized in fissure onan fisher one and fisher that twuniversities are under a constant obligatn evaluate their policies. They cannot adopt race conscious admissionsndet that play out forever into the future. Instead,heneed to reevaluate whether progress has been made so that they can use alternatives to achieve the same goal. I think the court has not retrtebut that it would be correct as a matter of constitutional principle t understand it. You made a very convincing case on behalf of the military. Im wonderg ether if we have somebody repseing law firms or representing medical facilities or representing this businesses in america or represenngny of the wide variety of institutions that are critical to thwebeing of this country whether they might make a similar case . Obviously, the particularities would differ but the essential nature of the argument will be the same. Thats absolutely correct, and you do have many of those entities partipang in this case. To expinow critical it is for them to have access to a pili of students who have been trained in diverse environments and who themselves have affected the community. Think it is absolutely the case that thbuness community that every aspect of society would feel the shockwave. Thank you, counsel. Sticthomas, Justice Alito . I want to ask a different question. One notable thing about the argument here is that on both sides there has been very little discussion of what originalism suggests about this question so i just want to ask what would a committed originalist think about the kind of race conscious issue here . I think it originalist would think this is consistent with e iginal understanding of the 14th amendment. The universities have come forward with powerful evidence that is surrounding the time of the enactment of the 14thf amendment. To bring african arins to a point of equality in our society and i think what so notable the court is focused on history rethe petitioner has come forward with essentially no story to support this colorblind interpretation of the constitution that would make all ci classifications automatically unconstitutional. There is nothing in history to support that a itakes aim not only at cases like these but at the courts enti sucture and applying such scrutiny but specifically to take into account. Justice gorsuch . Id like to focus on the statutory questions. We have e nstitutional claim but also a statutory claim, title vi and i understand the precedents have often conflated the two. Justice stevens made a argument, title vis ngge is plain and clear just as title vii is. Title vii does not permit discrimination on basis of sex, race. Can you help me with that . I think that the courts correctly interpreted title vi where did Justice Stevens make mistake . We didnt find it ambiguous. Why should we find it ambiguous now . I think that the statute were we wrong . No, im not suggesting that but sts gorsuch and know you keme to put to the side the court has already resulted iss i would just emphasize we are lking about a statute consideration. Congress has never overturned this courts interpretation of title vi. Do you have anything else . The ambiguity and the term just from a nation. We respect those courts decision. What do we say to Asian Americans that they are encouraging asian applictso avoid and beat asian quotas . Is tt important consideration and coaches tell applicants to disguise their backgrounds and their names to e extent possible in order to secure what they view isn en footing in the admissions process . I find those accounts appalling. They are not permitted under the constitution. Racial identity cannot be treated as a negative. That would be intentional discrimination and prohibited unr ual protection and under to the extent that that is happening at any edual institution around this country thats unlathe university should be held accountable for it. Thank you. Justin cavanagh . I understand your point about the ceonscious decision being allowed in certain circumstances certainly the precedent in the school degregation cases. You read justice marshalls opinion and that is a very forcible and compelling why thats so important. And why that was viewed nessary. The reference there i think was because Justice Oconnors majority opinion was concerned about indeni extension. And you said dont worry abou that. How will we know when the time has come . The time will be here when universities are able to having to take explicit account of race in thedmsions process. So if i can jusk that down i think what youre sayg, but correct me if you disagree tt when these neutral sufficient percentage of underrepresented minority students in the student body . Is that an accurate translation . To allow for meaningful diversity and representation. And i use the word sufficient, but what number . So i think that its not reduto a precise number or percentage. The court has made clear just recentlynd made clear that there arenas for specif tesholds. Numbers n main relevant for purposes of trying to meur whether there is truly a meaningful opportunity to have cross racial interaction. You dont have a number and i understand why. I understa t problem with that but you dont have something measurable, it is going to be very hard for is court to call upon 10 years from now for 20 years from now. Its a bit of rlay but we have come back to it. Are we there yet what do we look at . You are sayi mningful opportunity, i dont know exactlwh that means. I dont know how the schools will know when they have, you know when the race contr c get them close enough or if it has to meet some threshold. I dont know what angful means. I know what it means of terms of what you are dcring i dont know how it translates. I dont ow how educators are going to make decisionny help you can provide. I think its going to be tied to the direct ucional benefit that the university has articulated ting to achieve. Those can be measured. I would point to three overarching categories. The first can be quantitativor objective evidence, the Service Academies i will use as an example. One thing they have looked at is the disparities in graduation and nuitn rates. Arition rates. The Coast Guard Academy said it studied the ise th respect to women and discovered that when enrome of women stabilized at about 2530 of the poputi those disparities of women not graduating at the same rate as men fell by the wayside and disappeared. So i think Graduation Rates e relevant. I think the universityan measure the degree of race related incidents on campus and whether the e happening, i think the university can look at patterns of enrollment and deteinwhether the classroom environment is diverse and there are opportunities for cross ci understanding. That is all the first category. Thsecond category i would point to is demographics i thinth can be relevant but again not to set a quota, not to identify a numerical threshold. But it can cause people to wonder whether the path to leadership is open. If i cou ge a common example of that. The court is going to hear from 27 advocates. And two are women. Even though women today are 50 or more of Law School Graduates and i init would be reasonable for a woman to look at that and wonder is that a thhats open to be . To me . When there is that kind of gross disparity it mattersndts common sense. I think the universities can look at subjective or alitative evaluation of actual student experiences. You can do things like conduct highqualityurys of students to ask them what opportuti have you had to interact with people of a different race . What did you learn fm e experiences . Did it challen yr thinking . If y a an underrepresented student do you feel isolated . Do you feel you have to be a espeon for your race and that can help measure progress towards his goals. I have a question the originalist evidence. There is nuance in that and i dont want tinto the details of that but my question is how it affect your position in this case i agree with you and it is established that its not always illegal to take race conscious measures, remedial measures are an emp of that. Agree on your understanding on the originalist evidence that restricts scrutiny. Its not accuo say, i agree with you, when you look at the originalt idence that it was always colorblind. Some raccious measures were permitted in a remedial sense. That. Regation is an example of undewh circumstances have those remedial measures have been permittedndhats a section five question. How would that evidence affect your ifouere writing on a blank sle, would you say they dont implicate the thmendment . Or are you saying they would very plainly satisfy our tears of scrutiny because of the interest being compelling . I think that because they involve racial classifications it is necessary to have them desuch scrutiny. We are not suggesting they would be automatically exempt. I think the court has recognized that any time a racial classification is used you want that subject that tocriny in order to test or to see if it could be justified based on compli interest and to push on narrow tailoring. Here we think that the court rightly concluded that narrow tailoring and compelling interests are satisfied. Justice jackson. Two quick things. One is about the origi position. As an not is it not at least ambiguous that history is telling us about whether or not race consciousan be used . I know your position and the position of meolks that its clear that the history is making race cusness is ok and as Justice Barrett mentioned there is evidence of that. If is evidence on the other s dont we need have a clear picture of this . Weave the historians brief that says even if the hi was unclear and its not overcoming stare decisis requires something more than amgus evidence. I think the petitioner bears a heavy burden because we are in a situation where it applies and i think it will be desbizing for the court to turn its back on the president here. Onredent here. I think what can be said about history although there are complications that rousseau mpcations were automatically and invariably unconstitutional. Is there some connection between how race is being used and the concern so omy colleagues have about the amount of time . I am trying to think about whether it was a setaside program, that there was actually 16 seats in the class of 100 that were being set as for underrepresented minorities and therefore the concerns abt pernicious in this and being problematic. But when y he a situation like this in which you a plusesn e system. Ting classes no one is automatically getting a plus in the syst i wonder if the urge to end it and it is to include race alongside oer characteristics. I wonder if it implicates the same kind of concern about the use of race. Yes, justice chaska. Jackson. I think the unc reco illustrates this point. Not using race when its not necessary to achieve true student body diversity. Maybe ateans given the limited way that race functions in our society is taking longer for our society to get to the point where everyone agrees, i donink at the basis to condemn the case now. Thank you. I am goinake four points here. First with respect to the military, the United States brief onhais long on but not actually long on any evidence in that fact. Dont know precisely what race control alternatives they have looked at. The only actual inrmion we have is ast guard when it was race ntr. E last year the coast guard was not usinra as a factor in admissions it expanded a race recruiti pipeline initiatives and obtained upper represented minority enrollment within two points which were usg ce as an admissions factor. There is no evidence to ggt thatheotc candidates come from texas a m and florida and california and michigan are much received fewer benefits ofhave educational benefits. Obviously we think that our reing is consistent with the original screening. Originalist rdi. The best srcon this is actually United Statesri in the brown v argument hearing. It has the comple rvey about the meaning of the 14th amendment. When the 14th amendment was enacted it would prohibit legal distinctions based on race. Thats r position, that was the position in brown that evls today. There was an assertion that california and michigan saw the white enrollment go up. That is not true. In michigan, unrepresented minority is up. Asian american admissions have gone up sits, Asian Americans are not white. In california, berkeley is 19 white. 15 mexicanamerican, 5 other hispanic, 15 chesamerican, 4 vietnamese, rean, 4 black. We are told that the students are beindeived of the educational benefits of dirsy or deprived of a diverse environment. I dont think thats correct. With respect to my friend fr unhe insisted they were committed to exploring race neutral alternatives and having an endpoint. There is no criteria that their interest in obtaining educational benefits have been tiied. There was no plan 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 the current Admissions Program en though they had done so there gender, legacy status and time of application. The fact that the District Court found this sutiny as a reason to overrule it. Thankou, counsel. The case is submitted. We will take a 10 minute recess. Today on cspan, pennsylvania is acting secretary of the commonwealth joins kentuckys former secretary of state ray discussion on election threats and the 2022 midterms. That is live from the center for American Progress at 11 00 a. M. Eastern. At 2 00 p. M. The cdc director speaks to the u. S. Chamber of commerce about preparing for a potential surge in covid19 cases this winter. In the evening former president barack obama heads to nevada to campaign for democratic candidates. Live coverage begins at 8 00 eastn on cspan. You can also watch our free mobile video app, cspan now, or online cspan is your unfiltered view of government. Funded by these Television Companies are more including comcast. Do you think this is just a Community Center . Comcast