Supreme Court hears arguments on college affirmative action cases

Conservative Supreme Court justices were hostile on Monday to the ongoing use of race-based affirmative action in college admissions.

The court took nearly five hours to debate affirmative action policies at the University of North Carolina and Harvard.

Based on Monday’s oral arguments, the six conservative justices appear ready to end the use of affirmative action in admissions, overturning a precedent from 1978.

Here are key takeaways from today’s oral arguments:

Conservatives say defenders of affirmative action can’t articulate an end point 

The conservative wing of the court harped on the lack of clarity around when the need for affirmative action would end. Multiple justices asked Ryan Park, the North Carolina Solicitor General who is defending the UNC admissions program, to elaborate on how to measure that a school has achieved the diversity goals that would render affirmative action unnecessary. 

“I don’t see how you can say that the program will ever end,” Chief Justice John Roberts said during a pile-on that also included Justices Samuel Alito and Amy Coney Barrett. “Your position is that race matters because it’s necessary for diversity, which is necessary for the sort of education you want. It’s not going to stop mattering at some particular point, you’re always going to have to look at race because you say race matters to give us the necessary diversity.”

Justice Brett Kavanaugh said the court will struggle if they are asked to review affirmative action again in 10 years, “if you don’t have something measurable” that shows whether the diversity goals have been achieved.  

Thomas questions educational benefit of racial diversity 

Justice Clarence Thomas asked all three lawyers arguing in favor of UNC’s affirmative action program — Park, US Solicitor General Elizabeth Prelogar and David Hinojosa, who is representing UNC students defending the program — to explain how racial diversity benefits the educational experience students receive. 

“I may be tone deaf when it comes to all these other things that happen on campus, about feeling good and all that,” Thomas said to Hinojosa. “I’m really interested in a simple thing. .. what benefits academically are there to your definition or the diversity that you’re asserting?” 

When he posed the question to Park, Thomas suggests that Park’s response reminded him of the arguments he heard in favor of segregation. 

Jackson says barring all consideration of race invites its own constitutional problems 

Justice Ketanji Brown Jackson warned that if colleges are prohibited from making any consideration of race, it risks violating the Constitution’s equal protection protections for students who will not be able to present that background in their applications.

“I hear a process in which there’s a form that says tell us about yourself and people can put all sorts of things. I’m Catholic, I’m from, you know, Los Angeles, I’m Latina, whatever,” she said. “But now we’re — we’re entertaining a rule in which some people can say the things they want, about who they are and have that valued in the system. But other people are not going to be able to. Because they won’t be able to reveal that they’re Latino or African American or whatever. And I’m worried that that creates an inequity in the system.” 

Sotomayor points to how states that bar affirmative action have fared 

Justice Sonia Sotomayor returned repeatedly to the statistics coming the schools in states that have barred affirmative action. 

At one point, she raised those trends to push back on conservatives’ invocation of the 25-year timeline the Supreme Court set, in its 2003 ruling sanctioning the use of race in admissions, for affirmative action programs to no longer be necessary. 

“Even your adversary said he didn’t see the 25 years as a set deadline. It was an expectation,” Sotomayor said to Park. “What we know we have nine states who have tried it and in each of them as I mentioned earlier, whites have either, white admissions have either, remained the same or increased. And clearly, in some institutions, the numbers for underrepresented groups has fallen dramatically, correct?” 

Harvard grilled on allegations of discrimination against Asian applicants

While the justices raised many of the same issues in the Harvard case’s hearing as they did in the early UNC lawsuit arguments, Harvard attorney Seth Waxman got a grilling on the specific allegations of discrimination against Asian applicants – allegations only being brought in the Harvard case.

Alito pressed Waxman extensively on the evidence that Asian applicants received lower personal ratings in the admissions process than other racial groups. Waxman’s attempts to emphasize that race was an important factor in very few of the admission decisions prompted Roberts to remark sharply “So there’s only a little racial discrimination in the case?”

Roberts also had a pointed retort in Waxman compared the advantage an applicant might get because of their race to the advantage Harvard would give an oboe player if the school’s orchestra was in need of that instrument.

“We did not fight a civil war about oboe players,” Roberts said. “We did fight a civil war to eliminate racial discrimination and that’s why it’s a matter of considerable concern.”

The back-to-back hearings over affirmative action admission policies at the University of North Carolina and Harvard wrapped up after nearly five hours of arguments, with the court taking just one 10 minute break between the two cases.

Justice Ketanji Brown Jackson participated only in the UNC arguments after the judge announced she would recuse herself from the Harvard case because she had served on the school’s board of overseers.

The spouses of several justices were present in the courtroom, according to CNN’s Ariane de Vogue, who spotted Ginni Thomas, Jane Roberts, Patrick Jackson and Ashley Kavanaugh. Ashley Kavanaugh stayed only for the first hearing, which lasted 2 hours and 45 minutes.

Chief Justice John Roberts skewered the comparison Harvard’s attorney made between the school’s use of race in admissions and how an applicant who is an oboe player might be given an advantage. 

“We did not fight a civil war about oboe players,” Roberts said. 

The attorney, Seth Waxman, had been arguing that just as race could be a “tip” that secures admission for a candidate of color who is on the bubble, so could playing the oboe if the Harvard orchestra really needs an oboe player. 

Roberts responded that we fought “a civil war to eliminate racial discrimination and that’s why it’s a matter of considerable concern.” 

US Solicitor General Elizabeth Prelogar, while defending the University of North Carolina affirmative action program, emphasized what gender disparities among attorneys who appear before the Supreme Court signify.

She was addressing the questions from conservatives about what affirmative action defenders see as the end point that would allow for the use of race in admissions to end.

Prelogar said that it was not about defining a precise quota, but acknowledging extreme disparities and how they can “cause people to wonder whether the path to leadership is open.”

Prelogar was the only female attorney arguing Monday among the six lawyers who participated in the two cases’ hearing.

“The court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50% or more of law school graduates,” she said.

“And I think it would be reasonable for women to look at that and wonder, is that a path that’s open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity and representation, it can matter and it’s common sense.”

Harvard’s attorney Seth Waxman was subjected to a lengthy and tense line of questioning from Justice Samuel Alito about evidence that Asian applicants received lower “personal scores” during the admissions process.

“The record shows that Asian student applicants get the lowest personal scores of any other group. What accounts for that?” Alito asked. “It it has to be one of two things: that they really do lack integrity, courage, kindness and empathy to the same degree as students of other races. Or there has to be something wrong with this personal score.”

Waxman repeatedly tried to direct Alito to what evidence came out during the district court proceedings. He noted that Asians received a statistically higher scores on their extracurricular and academic scores, stressed the limited role the ratings played in the process and emphasized the district court’s findings of no discrimination. 

But Alito continued to press on the significance of the score. “Does it make a different or doesn’t it make a difference?” he said, later asking why the Harvard process even gives the score if it is so insignificant.

Harvard’s attorney Seth Waxman’s explanation of the evidence in the case provoked a pointed retort from Chief Justice John Roberts.

Waxman was trying to point out that the proceedings had shown that race had made the difference in “very close to zero” of the admission decisions.

“Well, so there’s only a little racial discrimination in the case?” Roberts said sharply.

Waxman paused before answering: “Are you asking me whether Harvard is — you’re asking me to answer a question that assumes that Harvard is discriminating on the basis of race? No, I can’t accept that.”

He was cut off by Roberts, who said, “Isn’t that what the case is about, the discrimination against Asian Americans?”

A line of questioning by Justice Sonia Sotomayor about how Congress could address de jure segregation — meaning segregation created by government policy — prompting an intervention from Justice Samuel Alito to question whether there is contemporary segregation of that type. 

“Even if we have de jure discrimination now or segregation now, Congress can’t look at that?” Sotomayor had asked. “Because we certainly have de jure segregation. Races are treated very differently in our society in terms of their access to opportunity.” 

After Cameron Norris, representing the Students for Fair Admissions, answered, Alito jumped in: “Are you aware of de jure segregation today?” 

When Norris said no, Sotomayor argued that there was, pointing to residential segregation and in schools. 

“There are large numbers of schools in our country that have people of just one race,” she said. “There are schools, districts that have only kids of one race and not multiple race who are not White people. De jure to me means places are segregated. The causes may be different, but places are segregated in our country.” 

Justice Elena Kagan sought to corner Cameron Norris, representing the Students for Fair Admissions, in his arguments by raising examples of all the other kinds of institutions that might seek racial diversity. The key question, she said, was what they can do to achieve that if race-neutral mechanism aren’t achieving a diversity.

For example, she pointed to how a hospital might want to employ racially diverse medical staff for the benefit of its patients, or how a police force might also seek racial diversity in its ranks. She also raised the interest of judges in hiring a diverse group of clerks

“The question is when the race-neutral means don’t get you there, are you prevented from taking race into account in all those ways that I said?” Kagan asked.

Chief Justice John Roberts asked Cameron Norris, the lawyer arguing against Harvard’s affirmative action program, about whether colleges can lawfully consider race if presented in an application essay or in the recommendation for an applicant that discusses the applicant overcoming racial discrimination.

“Do you have any objection to that introduction of race?” Roberts asked. Norris said no, prompting several follows up from justices across the ideological spectrum.

Justice Amy Coney Barrett referenced a quote from Justice Elena Kagan from earlier in the arguments, that by making that distinction, the challengers were “slicing the salami pretty finely.”

She asked how colleges should consider application essays where the applicant talked about the cultural traditions related to race.

“I think culture, tradition and heritage are all not off limits for students to talk about and for universities to consider,” Norris said.

“They can’t consider that they can’t read that —and say, oh, this person is Hispanic or Black or Asian and therefore I’m into credit that they need to credit something unique and individual and what they actually wrote, not race itself,” he added.

One attorney who’s been involved from day one in the affirmative action cases against Harvard and University of North Carolina isn’t at the podium today.

William Consovoy, who has shepherded the challenges to race-based affirmative action at both universities since they were filed in 2014, is being treated for brain cancer, his law partner Thomas McCarthy told CNN.

McCarthy declined to offer details of Consovoy’s cancer but said it was first diagnosed about two years ago. He said Consovoy plans to listen to an audio livestream of the arguments from his Virginia home.

Read more here.

During the court’s 10-minute lunch break between the two affirmative action cases, former President Donald Trump’s attorneys asked the Supreme Court to pause an order that the IRS turn over his tax returns to the Democratic-controlled House of Representatives.

Trump’s attorneys are from the law firm Consovoy McCarthy, and they’ve been in court representing Students for Fair Admissions in the two cases today.

Patrick Strawbridge represented the group in the challenge against the University of North Carolina. Cameron T. Norris is arguing against Harvard’s policies. Both are listed on Trump’s challenge.

Read more here.

The Supreme Court is now beginning oral arguments in the challenge against the use of race in admissions at Harvard.

Cameron T. Norris, representing the Students for Fair Admissions, will begin arguing the challenge to Harvard’s policies. He previously defended Trump in the financial-documents litigation in Trump v. Mazars before an appeals court. Norris is also a former Thomas clerk.

Former Solicitor General Seth P. Waxman will argue for Harvard. He has delivered more than 80 arguments at the Supreme Court.

Solicitor General Elizabeth Prelogar will rise to again argue for the United States.

In its filings, Students for Fair Admissions asserted that Harvard engaged in unlawful “racial balancing,” by holding Asian American applicants to higher standards than Black and Latino students. SFFA also contends admissions officers adopted stereotypes as they applied to “personal ratings,” categorizing Asian Americans as one-dimensional, lacking leadership qualities and falling short on traits such as “likeability.”

The Asian American element in the claim against the storied Harvard campus – emphasized by the challengers as they recall caps on Jewish students at Ivy League institutions decades ago – has drawn more national attention compared with the UNC lawsuit.

With a lawyer for University of North Carolina students defending affirmative action up for questioning, Justice Samuel Alito asked him to address discrimination against Asian applicants in college admissions.

“I was struck by the fact that the word Asian does not appear one time in your brief. Yet, Asian Americans have been subjected to … segregation,” Alito told the lawyer David Hinojosa, of the Lawyers’ Committee for Civil Rights. “They have been subjected to many forms of mistreatment and discrimination, including internment. So, do you have anything to say this morning about the interests of students of Asian background and how your arguments impact them?:

Hinojosa pointed out that the case against UNC was not alleging discrimination against Asian American applicants. Those allegations, however, are a focus of the allegations against Harvard and the challenge to Harvard’s program is being heard separately later Monday.

“There were no claims developed by petitioner involving the mistreatment or maltreatment of Asian American students” at UNC, Hinojosa said, adding that discrimination against Asian Americans is “wrong” and “bad.”

Solicitor General Elizabeth Prelogar has taken the podium in the University of North Carolina case on behalf of the Biden administration.

She is representing the US Justice Department siding with both schools seeking to maintain their affirmative action policies

In court briefs, Prelogar said that court precedent has played a vital role in bringing diversity in higher education that has had rippling effect in the work force.

“The Nation’s military leaders, for example, have learned through hard experience that the effectiveness of our military depends on a diverse officer corps that is ready to lead an increasingly diverse fighting force,” she wrote.

She said court precedent has proven “eminently workable, carefully limiting the consideration of race and requiring use of race-netural alternatives to the extent possible.”

Justice Neil Gorsuch picked apart how colleges give advantages in admissions to legal applicants, applicants with connections to donors and athletes who play niche sports.  

“I’m wondering, suppose a university — a wealthy university — could eliminate those preferences which tend to favor the children of wealthy white parents and achieve diversity without race consciousness with strict scrutiny required to do so,” Gorsuch said, referring to the legal standard for when race can be considered in government policy. 

The conservative justice pointed to how admissions programs benefit an applicant who plays on the squash team or who could bring in a donation that would finance a new art museum. 

Justice Sonia Sotomayor jumped in to help North Carolina Solicitor General Ryan Park on a point that had attracted significant hostility from the conservative justices: whether affirmative action defenders were asking the Supreme Court to let affirmative action to continue without any end-point in mind. 

In making the point, Sotomayor also pointed to the experience in the nine states that have barred the use of race in admissions. 

“What we know we have nine states who have tried it and in each of them as I mentioned earlier, whites have either, White admissions have either, remained the same or increased. And clearly, in some institutions, the numbers for underrepresented groups has fallen dramatically, correct?” Sotomayor said.

According to the Supreme Court, there were 90 minutes allocated for oral arguments in the University of North Carolina controversy this morning. However, we’re now in hour No. 3.

Like most other argument sessions this month, it turns out that schedules are merely suggestions. Blame a couple of things:

First, the court traditionally had a free-for-all approach where justices jumped in at any time, interrupted one another and interrupted counsel. But the pandemic created a more formal approach. Because arguments were held over the phone, the court instituted a process where justices asked questions in order of seniority. 

Now, there’s a combination of both —Chief Justice John Roberts is making sure to go through the list of justices AND since everyone’s in court together, the traditional back-and-forth has returned. 

Meanwhile, this is only the first historic case the justices are debating today. There are 70 minutes scheduled for the challenge to affirmative action at Harvard coming up next.

North Carolina Solicitor General Ryan Park received a stretch of hostile questioning from conservative justices wary of the idea that affirmative action should be allowed to continue indefinitely.

Justice Samuel Alito grilled Park on what would count as achieving the diversity sought with the program without looking at racial statistics.

“You have to achieve diversity, though. That’s the goal. So how do you do that?” Alito said.

Justice Amy Coney Barrett jumped in, raising the language of the 2003 Supreme Court ruling known as Grutter that sanctioned the use of race in college admissions in limited circumstances.

“When is your sunset? When will you know? Because Grutter very clearly says this is so dangerous. Grutter doesn’t say this is great,” she said. “Grutter says this is dangerous and it has to have an endpoint. And I hear you telling Justice Alito there is no endpoint.”

Not satisfied with Park’s answers, she follow up “How do you know when you’re done?”

Chief Justice John Roberts joined in as well.

“I don’t see how you can say that the program will ever end,” Roberts said. “Your position is that race matters because it’s necessary for diversity, which is necessary for the sort of education you want. It’s not going to stop mattering at some particular point, you’re always going to have to look at race because you say race matters to give us the necessary diversity.”

As justices hear arguments on two pivotal cases concerning race-based affirmative action in college, people for and against the precedent are gathered outside of the Supreme Court.

Here’s a look at the scene:

Justice Clarence Thomas, the sole Black man on the Supreme Court, pushed back on the arguments made by defenders for affirmative action for how the approach improves the educational experience at schools.

Presented with the argument that people operating in racial diverse groups perform at a higher level, Thomas said, “I don’t put much stock in that because I’ve heard similar arguments in favor of segregation too.”

Thomas had asked North Carolina Solicitor General Ryan Park, who is defending the University of North Carolina’s program, for a “clear idea of exactly what the educational benefits of diversity at the University of North Carolina would be.”

“I didn’t go to racially diverse schools, but there were educational benefits, and I’d like you to tell me expressly when a parent sends a kid to college that they don’t necessarily send them there to have fun or feel good or anything like that,” Thomas said. “They send them there to learn physics or chemistry or whatever their study. So tell me what the educational benefits are.”

Thomas, a conservative, is a long-time critic of affirmative action. In 2003, for instance, he wrote:

“The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

Justice Ketanji Brown Jackson said that barring any consideration of race in college admissions might invite its own constitutional problems, telling Students for Fair Admissions attorney Patrick Strawbridge that, “What I’m worried about is that that seems to me to have the potential of causing more of an equal protection problem that it’s actually solving.”

Jackson put forward a hypothetical that one applicant will be able to present to the University of North Carolina his family history of his or her ascendants attending the university for generations, stretching back to before the Civil War.

But the school would not be able to consider what a Black applicant put forward about coming from a family that resided in North Carolina for generations but was unable to attend the school because they were slaves, she noted.

Jackson is participating in oral arguments for the UNC case, but has recused herself from the Harvard controversy, which will be heard later today.

Justice Sonia Sotomayor grilled Students for Fair Admissions attorney Patrick Strawbridge on what was shown in the challengers’ models for how admissions programs would operate without the use of race.

“Blacks decreased in every one of your stimulations,” she said, while noting that the lower court found the simulations flawed. She said that the goal isn’t proportionality but “improvement” in diversity.

“All I see in your models is that we step backwards,” Sotomayor said. “We don’t step forward.”

Justice Brett Kavanaugh raised an aspect of the Grutter ruling – the major 2003 Supreme Court decision that sanctioned the limited use of race in college admissions – that forecast that the affirmative action would no longer be needed 25 years after the ruling came down. 

“When do you read or do you calculate — to the extent you consider it at all — the 25 year limit?” Kavanugh asked. 

Writing for the majority in Grutter v. Bollinger, Justice Sandra Day O’Connor observed: “It has been 25 years since Justice [Lewis] Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Why this matters: This could be a key way for conservative justices to explain a ruling that ends the use of affirmative action in admissions next year, which would be the 20th anniversary of Grutter — and impact admissions for the Class of 2027, one year short of the 25 year timeline.

The requests by liberal justices that Students for Fair Admissions attorney Patrick Strawbridge explain in more detail exactly how colleges are using race prompted the interest of conservative Justice Amy Coney Barrett. 

She asked Strawbridge to distinguish whether his objection is to use race as “box checking” factor versus race being considered in an “experiential” way. 

The liberal justices then came back to the question to note that applicants may write about race to describe their experience overcoming racial discrimination. They asked whether colleges considering that would violate the constitution, under the challengers’ legal theories. 

Chief Justice John Roberts, whose skepticism to affirmative action is well-established, asked Patrick Strawbridge, the attorney representing the challengers to UNC’s policies, about how colleges can shape their admissions approaches if race can no longer be used — and whether those “race neutral” alternatives could be designed with the aim of increasing racial diversity.

“Do you think those are appropriate even if the intent of the state in adopting them is to reach a certain level of minority students?” Roberts asked.

Strawbridge went on to suggest that such approaches could be suspect if race alone is motivating their design — a point that invited grilling from the liberal justices.

Roberts is likely to be control the majority opinion should the court strike down its precedent allowing the use of race in college admissions.

Justice Sonia Sotomayor pointed to Congress’ actions during the time that the 14th and 15th Amendments were ratified as showing an emphasis to educating Black children.

“They had belief that integration itself provided a value,” Sotomayor said, a question aimed at the idea that those constitutional amendments bar the use of race in government policy.

Sotomayor’s questions came after a line of inquiry from Justice Clarence Thomas, the senior-most justice on the court, asking the challengers to Harvard and UNC’s policies respond to points made by affirmative action’s defenders that considering race allows the admissions process to consider the whole person.

Justice Ketanji Brown Jackson grilled Patrick Strawbridge, the lawyer representing affirmative acton’s opponents, on the facts surrounding his clients’ allegations about the universities, with the court’s newest justice suggesting the challengers have not overcome procedural standards that would justify judicial intervention.

She later added: “I have been struggling to understand how race is actually factoring in the admissions process here.”

Jackson also questioned whether the challengers, by not fleshing out the role race was playing in admissions, was asking the court to change the rules for what plaintiffs must typically show about how a policy is harming them.

Oral arguments in the first affirmative action case the Supreme Court will be hearing Monday – a challenge to University of North Carolina’s program – have begun. 

The first case before the Supreme Court on Monday will be Students for Fair Admissions (SFFA) v. University of North Carolina.

Patrick Strawbridge, representing SFFA, will be first at the podium. He works for a boutique law firm called Consovoy McCarthy that also represented former President Donald Trump in election law disputes. Strawbridge served as a law clerk to Justice Clarence Thomas.

North Carolina Solicitor General Ryan Y. Park, representing UNC will go next. He’s a former law clerk to the late Justice Ruth Bader Ginsburg as well as retired Justice David Souter. He teaches North Carolina Constitutional law at Duke Law. He will be followed by David G. Hinojosa, who works for the Lawyers’ Committee for Civil Rights and is representing students from the school.

After they are finished, we will hear from US Solicitor General Elizabeth Prelogar for the United States, a former clerk to Ginsburg and Justice Elena Kagan.

The court has scheduled 90 minutes of arguments but is likely going to go much longer.

Under a new questioning format that gives justices a chance to ask as many follow up questions as they like court sessions have gotten very long of late.

Next up will be SFFA v. Harvard College

Another Consovoy McCarthy lawyer, Cameron T. Norris, will begin arguing the second case. He previously defended Trump in the financial-documents litigation in Trump v. Mazars before an appeals court. Norris is also a former Thomas clerk.

Former Solicitor General Seth P. Waxman will argue for Harvard. He has delivered more than 80 arguments at the Supreme Court.

Then, Prelogar will rise to again argue for the United States before Norris has a chance at rebuttal.

This argument is scheduled for 70 minutes. If the court goes long in the UNC case, that deadline might actually hold.

The Supreme Court’s public reputation has fallen dramatically the past couple of years, especially after overturning nearly 50 years of precedent in Roe v. Wade — which guaranteed a right to abortion nationwide.

But a recent Washington Post poll shows that overturning its 1978 precedent on affirmative action in college admissions might be a welcome decision.

The poll released earlier this month found that 63% of US adults support the Supreme Court banning colleges and universities from considering a student’s race and ethnicity when making decisions about student admissions.

At the same time, 64% also say that in general, programs designed to increase the racial diversity of students on college campuses are a good thing

Chief Justice John Roberts has long opposed racial policies, including in education and voting rights, CNN senior Supreme Court analyst Joan Biskupic has written, including in her book “The Chief.”

Despite being on the losing end of the decision to overturn Roe v. Wade earlier this year, Roberts remains a stalwart conservative and may well take the lead in an opinion that would strike down Supreme Court precedent allowing the use of race-based affirmative action in college admissions.

“It is a sordid business, this divvying us up by race,” Roberts famously wrote in a 2006 voting rights dispute.

The following year, when the majority invalidated two public school integration plans, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

For nearly 60 years, institutions of higher education have been able to give limited preference to people of color and women with admissions.

The practice, advocates say, has afforded marginalized people a fair chance to attend colleges and universities that may have otherwise overlooked them. It has also been a tool to prevent discrimination at institutions, many of which historically only admitted White students.

Now the fate of affirmative action is in the hands of the conservative majority Supreme Court. On Monday, justices will hear arguments for two cases at Harvard and the University of North Carolina.

The challenges are being spearheaded by conservative activist Edward Blum who filed the lawsuits in 2014.

The Harvard challenge cites Title VI of the 1964 Civil Rights Act, which prohibits schools receiving federal funds from discriminating based on race. The UNC lawsuit also claims Title VI grounds, as well as a violation of the 14th Amendment’s guarantee of equal protection of the law, which covers state institutions.

The Lawyers’ Committee for Civil Rights is among the groups that will be defending the constitutionality of affirmative action before the Supreme Court.

Genevieve Bonadies Torres, associate director for the Educational Opportunities Project for the committee, said affirmative action has led to college campuses becoming more diverse. In return, Black and brown students are able to achieve “profound economic mobility” and uplift their communities, Torres said.

“What we know from both experience and research is that when colleges stop considering race, they have seen steep declines in the number of Black and Hispanic students who gain access,” Torres said. “Students of color are less likely to apply once they stop considering race because they see them as less inclusive and welcoming.”

Torres said in 2015 students at both Harvard and UNC got involved in the cases by submitting letters and testifying about their experience on each campus and the importance of diversity.

CNN spoke with three of the college graduates involved about why they believe affirmative action should be upheld.

Read their stories here.

Edward Blum, a conservative activist who created an entity called Students for Fair Admissions and raised millions of dollars from right-wing donors, engineered the broadside against affirmative action in admissions policies at Harvard and University of North Carolina.

Blum had previously enlisted White students to sue over race-based admissions at the University of Texas – and lost. He added a new dimension to the Harvard case, claiming that high-achieving Asian American applicants were unlawfully disadvantaged by screening policies that favored traditionally underrepresented Blacks and Hispanics.

A former stockbroker who never went to law school, Blum, now 70, has a talent for fashioning cases that appeal to the increasingly conservative high court. Using many of the same lawyers over the years, he engineered a series of lawsuits against the 1965 Voting Rights Act culminating in Shelby County v. Holder, the 2013 decision that curtailed the reach of the Voting Rights Act over designated states with a history of discrimination.

Keep reading here.

Justice Ketanji Brown Jackson, the court’s first African American female justice, said during her confirmation hearing that she would recuse herself from the Harvard dispute because she served on Harvard’s board of overseers.

Originally, the two cases concerning policies out of Harvard and the University of North Carolina were consolidated so that they would be argued together.

But the court decoupled the cases, ensuring that Jackson could participate in the UNC challenge and be involved in arguments and an eventual opinion on the issue.

As the Supreme Court weighs whether affirmative action programs are lawful under federal statute and the US Constitution, keep in mind that nine states already ban the use of race for college admissions. 

Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington have prohibitions on the books, according to research from the National Conference of State Legislatures.

In several of those states, the restrictions were put in place by voters via ballot initiative.

Opponents to affirmative action, in their court briefs, have pointed to the racial statistics of public universities in some of the states that ban affirmative action to argue that student body diversity is achievable without considering race in admissions. However, the leaders of public colleges in Michigan and California submitted friend-of-courts briefs that argued that their states’ restrictions had greatly impeded the schools’ ability to assemble diverse student bodies.

The first time the Supreme Court upheld the use of affirmative action in college admissions, nearly 45 years ago, justices spent months strategizing, forming back-channel alliances and trading passionate pleas up until the final days of negotiations.

Then, just days before the June 1978 decision was released, one justice wrote in a private account, “all hell broke loose.”

That hard-fought precedent in Regents of the University of California v. Bakke is the touchstone of Monday’s arguments on admissions policies at Harvard University and the University of North Carolina.

Private papers of deceased justices, including the first Black justice, Thurgood Marshall, reveal the tactics among the nine that produced the 1978 decision and how competing factions tried to steer the outcome.

The eventual judgment fell to a moderate, centrist justice, Lewis Powell, whose role points up a striking difference between that court and the modern bench: There is no middle.

The late Powell was succeeded in the centrist role over the years by such middle-ground brokers as Sandra Day O’Connor and Anthony Kennedy, both of whom are now retired and have no counterpart on today’s polarized bench dominated by six conservatives with only three liberals.

Based on previous sentiment from justices in today’s right-wing majority, the court appears ready to overturn Bakke and upend practices designed to boost campus diversity.

Keep reading here.

The conservative Supreme Court will meet Monday at 10 a.m. ET to consider whether colleges and universities can continue to take race into consideration as a factor in admissions, a case that could diminish the number of Black and Hispanic students in higher education.

What is at stake: Hanging in the balance is the future of admissions plans at hundreds of schools that have relied on court precedent for decades in order to achieve the educational benefits they say flow from student body diversity on campus.

Challengers in the case are targeting Harvard and the University of North Carolina arguing that their programs violate equal protection principles, dash the promise of a colorblind society, and discriminate against Asian Americans. They are urging the court to overturn precedent and they say that the schools should explore and further develop race-neutral alternatives to achieve diversity.

At least nine states have already chosen to end consideration of race in university admissions, including Arizona, California, Florida, Idaho, Michigan, Nebraska, Oklahoma and Washington, according to the National Conference of State Legislatures. Supreme Court precedent allows the consideration of race, but the court’s new composition of conservative justices did not hesitate last term to overturn decades old precedent in a case that curtailed a federal right to abortion.

A conservative group, Students for Fair Admissions (SFFA) is behind both challenges.

Edward Blum, the president of SFFA, has hired a conservative boutique law firm, Consovoy McCarthy, to challenge the policies at the country’s oldest private university, Harvard and the country’s first public university, University of North Carolina. The firm is composed of several former clerks of Justice Clarence Thomas who has been a critic of affirmative action.

SSFA argues that the Harvard policy violates Title VI of the 1964 Civil Rights Act that prohibits schools receiving federal funds from discriminating based on race. He says that the UNC policy is subject to Title VI, as well as 14th Amendment’s guarantee of equal protection under the law, which covers state universities.

Lower US courts have ruled in favor of the schools finding that that the programs used race in a sufficiently limited way to fulfill a compelling interest in diversity.

The two disputes were initially consolidated, but after Justice Ketanji Brown Jackson announced she would recuse herself from the Harvard case because she had served on the school’s board of overseers, they were decoupled, so the nation’s first black female justice could weigh in on the issue in at least one case.