STUDENTS FOR FAIR ADMISSIONS, INC., Petitioner, v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Respondent
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Cameron T. Norris, Seth P. Waxman, Elizabeth B. Prelogar

John G. Roberts, Jr.: We'll hear argument next in Case 20-1199, Students for Fair Admissions versus the President and Fellows of Harvard College. Mr. Norris.

Cameron T. Norris: Mr. Chief Justice, and may it please the Court: Grutter assumed that universities could use race in a narrowly tailored way if they just did it like Harvard.

But this Court never had any evidence about Harvard.

Now you do, and that evidence proves that none of Grutter's core assumptions were ever true. First, Grutter assumed that race would only be a plus.

But race is a minus for Asians, a group that continues to face immense racial discrimination in this country.

Asians should be getting into Harvard more than whites, but they don't because Harvard gives them significantly lower personal ratings. Harvard ranks Asians less likable, confident, and kind, even though the alumni who actually meet them disagree.

What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful, but it's a predictable result of letting universities use race in highly subjective processes. Second, Grutter assumed that applicants would be treated as individuals, not as members of racial groups, but Harvard gives racial preferences based on the box that applicants check, even if they never write about race or explain how it influences their views. And for competitive applicants, checking the right racial box is an anvil on the admissions scale, worth the same as ultra rare achievements like winning a national championship. Third, Grutter assumed that universities would seriously consider race-neutral alternatives, but Harvard never once did so until 2017, three years after we sued it.

Harvard now refuses to eliminate its legacy preferences or boost its socioeconomic preferences, even though both changes would make Harvard far less white, wealthy, and privileged. That's how Harvard uses race, and Harvard is supposed to be the model. This Court should admit that it was wrong about Harvard, wrong about Grutter, and wrong about letting the poison of racial classifications seep back into education. Grutter should be overruled both for public schools and for private schools that accept federal funds.

Clarence Thomas: Mr. Norris, would you spend a few minutes -- some time on the originalism argument that was made at the last -- the end of the last case?

Cameron T. Norris: Absolutely.

So, in terms of the original meaning of the Fourteenth Amendment, the best source on this I've ever read is the United States' brief on reargument in Brown.

It painstakingly details the legislative history and how the framers of the Fourteenth Amendment saw it as a ban on all racial classifications. Also, the -- everyone knows that the impetus for the Fourteenth Amendment was to constitutionalize the Civil Rights Act of 1866. The Civil Rights Act of 1866 is a series of bans on racial discrimination.

It's a series of color-blind measures and requirements. And then the -- one of the earliest cases this Court had before it went off the rails in Plessy was a case called Strauder, where the Court immediately recognized that the purpose of this amendment was to eliminate racial classifications, no matter whether they benefited whites or blacks, because racial classifications themselves impose harms. That's the affirmative evidence.

Now I know that the -- the -- the evidence -- the pushback is the post-ratification history, but the post-ratification of the history of the Fourteenth Amendment is not the best evidence because we know there was massive resistance to the original meaning of the text of the Fourteenth Amendment. But it also doesn't prove anything. Every measure that's cited in Harvard's brief was a remedial measure.

It was in response to the end of slavery and the position that black Americans found themselves in. Harvard does not cite a remedial measure for what it's doing today.

Those same measures that it cites would not be constitutional today because they would no longer serve a remedial purpose and not a shred of evidence that anyone back then used race to achieve the educational benefits of diversity.

John G. Roberts, Jr.: Would you have any objection if you do not ask candidates for admission to -- to check a box, what their race is, but you are allowed to take into consideration what an applicant would say in an -- in an essay about having to confront discrimination growing up and how he or she did that. You are allowed to take in consideration what a faculty recommender said. You know, one of the things that, you know, this applicant would bring is how to deal with racial discrimination in an area or in a school where he's part of a very small minority. Is there any -- do you have any objection to that sort of introduction of -- of race on behalf of a particular applicant?

Cameron T. Norris: Absolutely not, Mr. Chief Justice.

And, in fact, at the end of this case, at the end of the trial, it was -- it was -- we were -- we discovered that Harvard had amended its reading procedures for applications, and there had been an amendment that said you only should take into account race if someone talks about it on their essay or in their -- in their recommendation letters.

Harvard deleted that instruction and said that is not how we use race and that should have never been put in there. So we really are, in this case, talking about the check box.

Elena Kagan: So you agree that, with respect to the essays -- I mean, the Chief Justice suggested that one aspect of racial experience is confronting discrimination.

But there are also other aspects of racial experience.

Justice Alito gave an example earlier.

But you agree that, with respect to the essays, whether it's guidance counselors or whether it's students -- can -- can express whatever views they choose to express about their own racial experiences and the relevance of that for admissions officers?

Cameron T. Norris: Yes, the -- the -- what the -- what Title VI bans is race itself as a consideration.

And so, if a university gives credit to a black student who writes an essay about overcoming discrimination and equal credit to an Asian student who writes an essay about overcoming discrimination, then that is not race itself.

Amy Coney Barrett: But --

Cameron T. Norris: That is over --

Amy Coney Barrett: Oh, sorry.

Finish.

Cameron T. Norris: I would just say that that's overcoming discrimination, which Justice Scalia wrote in Croson is not a racial classification.

Amy Coney Barrett: But I guess, you know, in our earlier argument, Justice Kagan pointed out that this gets to be slicing the salami pretty finely.

I mean, it's one thing to say, yes, that shows resilience because you've written about overcoming discrimination, and a student could write about any number of obstacles that they've overcome, from physical disabilities on down the line. But what if -- you know, Justice Jackson had asked in the last argument, you know, about pride.

What if a -- what if an applicant wrote an essay about how integral their racial identity was to them as a source of pride and the cultural attributes of the racial heritage were very important? Would that be okay even if it were all intimately tied up, say, with, you know, the traditions of a Mexican family? And -- and if the answer is no, that can't be extricated from race, why would that be different than someone writing about how important it was to them to have this passion for music in their life, that they loved music?

Cameron T. Norris: I think culture, tradition, heritage are all not off limits for students to talk about and for universities to consider.

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 going to credit that." They need to credit something unique and individual in what they actually wrote, not race itself.

Sonia Sotomayor: I -- I'm -- I'm a little confused because this almost sounds like a different kind of viewpoint discrimination. And under our strict scrutiny standards, we're not supposed to discriminate on the basis of viewpoint or discriminate on the basis of religion.

They're considered as sacrosanct, I believe, as race. And yet what you're suggesting is that the viewpoint that somehow being a minority that overcomes discrimination in the way you define it as important as overcoming obstacles, that that's okay, but if you're a black person who's from an affluent family who may be the only class president ever in a white school's history, that that fact shouldn't feature. That's a form of viewpoint discrimination, isn't it?

Cameron T. Norris: I don't think we're saying --

Sonia Sotomayor: That that's not overcoming any kind of obstacle?

Cameron T. Norris: We're not saying that universities have to consider anything or nothing.

Universities just cannot consider race itself.

Elena Kagan: But I thought you were saying that both of those essays might be entirely appropriate for the university to consider, is that correct?

Cameron T. Norris: Correct.

Elena Kagan: Or did I misunderstand what you were saying?

Cameron T. Norris: No, there is no federal statute about what essays universities consider. There's a federal ban on consideration of race itself.

Sonia Sotomayor: So -- so why is it -- are you just objecting to touching a box that admissions officers can look at?

Cameron T. Norris: We're objecting to the use of race as either a plus or a minus in making admissions decisions.

Sonia Sotomayor: But I don't think you -- I think the district court made very clear findings that checking the box alone is not what got anybody in --

Cameron T. Norris: That there's a --

Sonia Sotomayor: -- that it was a holistic enterprise that looked at everything that that candidate did, and race might have been one among many factors, because there's a lot of Hispanics and blacks who have higher -- higher GPAs than many whites who don't get admitted. So they're not looking at just being black and white.

They're rejecting a lot of the 10 percent applicants who have higher numbers than, I guess, whites and Asian Americans.

Cameron T. Norris: Your Honor, there's a finding from the district court in our favor at page 116 of the Petition Appendix that Harvard can award a racial preference based on the check box alone, whether or not an applicant writes about it or otherwise indicates that it's important to them.

And that is important. That's race itself.

Sonia Sotomayor: Well, that -- that -- that finding was made in a -- in an undisputed finding by the district court that race alone did not account for any one admissions package, that it was race among many factors.

Cameron T. Norris: Well, the district court found that race is determinative for 45 percent of blacks and Hispanics who get into Harvard. So, yes, there's 55 percent who would not get in --

Sonia Sotomayor: I'll let Mr. Waxman debate that because that's not the way I saw that record.

It was very clear that the district court found, for example, that being Asian or not being Asian wasn't involved statistically in any -- in any of the admissions, whether for ADLCs or for non-ADLCs.

Cameron T. Norris: Well, I -- I just want to be clear, the 45 percent number is when race is determinative for blacks and Hispanics.

That's the number of applicants who it's determinative for. Our number was much higher.

That's not my number.

That's Harvard's number in their race-neutral alternatives report.

Neil Gorsuch: Counsel, if I could return a moment to the drafting of the Fourteenth Amendment, you said we should ignore the post-ratification history, but let's just pay a little attention to it for a moment. In the briefs, we have discussion about the Freedmen's Bureau that -- that -- that Congress set up.

How is that consistent or inconsistent with your position?

Cameron T. Norris: I think it's entirely consistent, Your Honor.

The Freedmen's Bureau for the most part did not draw any racial classifications.

It was classifications on the basis of being a former slave or a refugee.

And the refugees at the time from the Civil War were mostly white. In fact, when -- when objections were made in Congress that this is a racial-based law, the -- the people who supported the Freedmen's Bureau denied the charge.

They didn't say yes, but so what.

They said no, it is not, it is not race-based at all.

Brett M. Kavanaugh: So today a -- a benefit to descendants of slaves would not be race-based, correct?

Cameron T. Norris: I -- I think that's incorrect, Justice Kavanaugh.

Brett M. Kavanaugh: Well, how does that -- you just said a benefit to former slaves was not race-based in the Freedmen's Bureau. How is that different now?

Cameron T. Norris: Well, the remedial exception that this Court has recognized is -- is fairly narrow.

It has to be prior --

Brett M. Kavanaugh: The question is whether it's race-based.

Cameron T. Norris: Right.

Okay.

Brett M. Kavanaugh: You -- you said -- you said, I think, to Justice Gorsuch, and I'm sorry to interrupt his question, but you said to Justice Gorsuch, I think, that the benefit for former slaves was not race-based.

If that's correct, then the benefit for descendants of former slaves is also not race-based.

There -- you can make other arguments if you want about that, but it does not seem to be race-based under what you said to Justice Gorsuch, correct?

Cameron T. Norris: Well, not correct.

I think there's a difference between the former slaves themselves getting a benefit versus generations later.

I think that's the classification on the basis of ancestry, which is still problematic under this Court's precedents. And even if it's not directly race-based, I would assume that universities are -- are -- and depending on the record, but universities are drawing that classification as a proxy for race in ways that the Reconstruction Congress was not.

Neil Gorsuch: Okay.

If I might just finish up.

The Freedmen's Bureau is on the federal side.

We have some briefs before us that also talk about practice on the state side. Now we know that shortly after the Civil War there were a lot of race-based statutes passed by states, and most of them were Jim Crow laws that invidiously discriminated on the basis of race, but your friend on the other side cites two that he says are not, one from Kentucky and one from South Carolina. Could you address those?

Cameron T. Norris: Yes.

So we -- we cite a book full of statutes from the same era from states that were purely color blind, but they do cite two examples, one from South Carolina which I believe banned racial discrimination by government-licensed entities, and there was a finding by that legislature that our government-licensed entities were continuing to discriminate on the basis of race. I think it was a directly -- a remedial measure and it made sense in light of, you know, the end of the war and the massive racial discrimination that was still ongoing. Now the Kentucky statute is even clearer.

It gave benefits -- it -- it was a racial classification, but it gave benefits to a group of people in Mercer County, Kentucky, who had no property, were so injured they could no longer work, had no income.

I mean -- I mean, I think that what the statute was talking about were the people -- the -- the recently freed slaves in Mercer County to which there were many.

Neil Gorsuch: And then I have one final question about this.

There's also a question of whether we should pay attention to state practices given the language of the Fourteenth Amendment, which doesn't pertain to -- whether we should pay attention to federal side, sorry, given that the language of the Fourteenth Amendment doesn't purport to bar remedial measures or classifications by Congress, which at that time was in full Reconstruction efforts, but that the drafters of the Fourteenth Amendment were especially concerned about racial classifications at the state level because so many of them, everyone knew, would be used, as Jim Crow laws were, to discriminate against African Americans.

Cameron T. Norris: I think there's something to that, Justice Gorsuch.

Justice Scalia recounted some of that history I think in Croson and maybe Adarand, where he said there's no reason to think that the same distrust of the federal government would have been there at the time. But I -- I -- I don't think any of these federal statutes are even particularly hard if you assume the equal protection principle binds the federal government because they are all plainly remedial.

None have anything to do with diversity.

And Harvard has not pressed the remedial interests that justified those statutes.

Sonia Sotomayor: I'm sorry, but many of the civil rights statutes and some of the laws pertaining thereto were directed to -- and directed to being equal to whites, so there was consciousness of race in those statutes.

Cameron T. Norris: I -- I -- I -- I think not in a relevant sense.

Those statutes, this Court said in the Jam case in 2019 that that exact language is color blind, that whites -- you have to have the same rights as whites, which means everyone is equal.

Now they used race-based language, but the race -- well, what they did was they banned racial discrimination.

Sonia Sotomayor: So what do we --

Cameron T. Norris: That's not race consciousness.

Sonia Sotomayor: -- do about all the legislation that was passed that gave benefits not just to former slaves but to free blacks? That was still remedial in your mind because there was inequality, correct?

Cameron T. Norris: I -- I believe it was. And it was in response to a -- an entire system that had been built up of de jure discrimination.

I think those were remedial statutes as well.

And even the --

Sonia Sotomayor: So, even if we have de jure discrimination now or segregation now, Congress can't look at that? Because we certainly have de jure segregation.

Races are treated very differently in our society in terms of their access to opportunity.

Cameron T. Norris: I -- I believe that the remedial exception is still good law.

It was one of the two things that justifies the use of race in education that this Court identified in Parents Involved. However, Harvard has not made that argument and has no factual record that you would need to support that argument.

It does not justify its use of race based on its own prior discrimination against blacks and Hispanics.

Samuel A. Alito, Jr.: Are you aware of de jure segregation today?

Cameron T. Norris: I am not.

I am aware that -- that racial preferences on college campuses in our belief -- in our view have increased racial consciousness, and so there's some of this that's happening on campus, but it's not -- it's not de jure.

Sonia Sotomayor: It's not clear that there's segregation between -- there are large swaths of the country with residential segregation, there are large numbers of -- of schools in our country that have people of just one race, there are schools -- districts that have only kids of one race and not multiple race or not white people. De jure to me means places are segregated.

The causes may be different, but places are segregated in our country.

Cameron T. Norris: Absolutely.

And I -- I think the top 10 percent program in Fisher, which really got a -- a bad rap in Fisher II but was meant -- solutions like that are meant to account for residential segregation in a race-neutral way.

Sonia Sotomayor: Yeah.

The problem is that they don't.

That's what the district court found.

Cameron T. Norris: My memory of Fisher II was that the top 10 percent program was extremely successful at increasing the enrollment of underrepresented minorities at Texas.

There were other solutions.

We -- we have a very sophisticated race-neutral alternative in this case that takes into account socioeconomic status and forces Harvard to eliminate its preferences for the largely white legacies. And that is another way -- I mean, our numbers -- the number of -- of Asians would increase on campus; the number of Hispanics would increase on campus; the overall number of underrepresented minorities would increase on campus.

Sonia Sotomayor: Blacks wouldn't increase.

Cameron T. Norris: Black representation would be 10 percent, which is higher than it is in the State of Massachusetts.

And that number is -- is quite low.

Our expert testified that if Harvard was only willing to consider wealth instead of income, then that number would be quite a bit better because the main disparities we see on the basis of race today is not on parental income but on generational wealth.

Neil Gorsuch: Harvard -- Harvard argues, though, that we have a compelling interest in diversity writ large and that this Court has deferred to that interest, and among the diverse things that we need to have in our class are children of large donors -- there's evidence about that museum we talked about earlier -- children of legacies, and -- and the squash team.

I'm not making it up.

It's in the record. And to what extent should this Court be deferring to those interests as part of its compelling interest analysis?

Cameron T. Norris: Not at all, Your Honor. I don't -- I think strict scrutiny means you need to -- you need to be able to reject race-neutral alternatives because they don't satisfy the compelling interest, and the compelling interest is overall broad-based diversity, not declines in our -- our fencing status, not drops in five points on the U.S. News and World Report, but it's diversity. And Harvard -- it's a little ironic in this case, Harvard is not diverse at all. Besides its -- its racial statistics, 9 percent of incoming freshman at Harvard are conservatives.

Harvard is 82 percent wealthy. There's 23 rich students for every one low-income student on campus.

It is not diverse in hardly any other way.

And so I think that the -- the compelling interest that you recognized in Grutter is not what's actually being pursued on Harvard's campus.

Brett M. Kavanaugh: You heard the --

Elena Kagan: But, Mister --

Brett M. Kavanaugh: Go ahead.

Elena Kagan: I'm sorry.

Go ahead.

Brett M. Kavanaugh: Uh-uh.

Elena Kagan: I mean, are -- are you saying now that there is an interest and a compelling interest in racial diversity among other kinds of diversity? I mean, putting Harvard's -- you know, whether Harvard should be more socioeconomically diverse, probably should be.

But putting that -- I mean, is there an interest in racial diversity?

Cameron T. Norris: I agree with my colleague, not a compelling interest that could justify a racial classification, but racial diversity is not a bad thing.

It is a great thing.

It is something --

Elena Kagan: Well, but -- but the whole premise of this, right -- and, you know, we can talk about whether these programs are narrowly tailored, whether the universities have done enough to -- in -- in the -- with the use of race-neutral criteria, but the premise of your argument is that even if race-neutral criteria could not achieve the object, Harvard can't use race-conscious criteria. And that must be because you think it's just not important enough, isn't that right?

Cameron T. Norris: I don't think that's right.

So we have very detailed record evidence here that if Harvard just turned off race on its admissions process, it would still have 6 percent African Americans, I believe it's 9 percent Hispanics, so 15 percent underrepresented minority --

Elena Kagan: So you think, like, good enough? But how about if it were 2 percent? I mean, the nature of your argument is that it doesn't matter.

That's what the nature of your argument is.

Cameron T. Norris: I -- I disagree, Justice Kagan.

It does matter because, if you're below those numbers, then Harvard's probably discriminating in some sense and it should stop. Or it's not reaching underrepresented minorities in the way that it should.

Perhaps it should not have been --

Elena Kagan: Well, that's just fighting the -- the -- the question.

I mean, the question is, you know, is there a limit beyond which you would say, oh, yes, if -- if you can't achieve that level of diversity with race-neutral criteria, then you're allowed to use race-conscious criteria?

Cameron T. Norris: I -- I don't think there's any level that justifies explicit racial classifications.

But I -- I'm going to fight the hypothetical one more time if you'll let me because race-neutral alternatives --

Elena Kagan: Yeah, no, I don't think I will.

So let me just go on and ask you a couple of other things, I mean -- I mean, because this is -- you know, to me, this is -- a lot of the argument here is about a university has a -- a -- a compelling interest in collecting a diverse class, including along racial dimensions and maybe especially along racial -- racial dimensions given the kinds of challenges that our society faces, in the exact same way that all the other institutions of our society does. So I'm just going to ask you some questions about that.

If -- if -- if -- if you're a hospital and you serve a diverse group of patients, is it super-important to you to have a diverse set of doctors?

Cameron T. Norris: I -- I don't know that the -- that the evidence about the diversity of doctors and patients or anything about the medical field in that sense --

Elena Kagan: It wouldn't matter? Yeah, okay, or maybe it would.

You don't know. If you're a police department and you serve a diverse community, is it super-important to you to have a diverse set of police officers?

Cameron T. Norris: I mean, I -- I believe that's important if there's good evidence that that -- that a racial classification was needed. That has nothing to do with the educational benefits of diversity in universities.

That's the interest that Grutter upheld.

Elena Kagan: Do you think that if you're a law firm or if you're a judge, if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions?

Cameron T. Norris: Absolutely can think about it.

This Court's decision in Feeney says knowledge of race is not the violation.

It is using it as a factor to distinguish --

Elena Kagan: I'm using -- let's -- let's say a judge says "I want a diverse set of clerks." That's -- you know, I want clerks who would -- you know, great on any number of criteria, but I also want a diverse set of clerks.

So, over the years, people will look at that and they'll say: There are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that?

Cameron T. Norris: I mean, I think that's a -- that's a -- that is a admirable goal.

I don't think a judge could implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to black and Hispanic applicants.

I think you need to treat people -- treat equally based on race just as you're not going to hold my race against me in judging the quality of my arguments. I think race -- racial diversity is important because it's a good metric to make sure our -- our -- our institutions are equally open.

You can certainly be concerned about that.

But the question is using racial classification, telling people that you didn't get the clerkship because of your race.

Elena Kagan: Yeah, but the -- the -- the -- the point here is, look, everybody would rather achieve all our racial diversity goals through race-neutral means.

Everybody would rather that.

And that's certainly what our cases say you have to do. 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? And I could add a dozen more. Businesses who find it necessary, you know, in order to achieve their economic objectives to have racially diverse workforces.

I mean, I could go on and on and on. And the question is, when race-neutral means can't get you there, don't get you there, when you've tried and tried and they still won't get you there, can you go race-conscious?

Cameron T. Norris: I don't believe so, Justice Kagan.

And I think your -- this Court has already said in Parents Involved that racial diversity is not a compelling interest.

It is the overall diversity of all kinds on college campuses. And I don't -- I mean, this is not -- this doesn't have to be hypothetical.

We presented an alternative to Harvard that would achieve socioeconomic diversity for the first time, that would boost underrepresented minority representation, that would lower the number of white students on campus.

And so we're talking not about no diversity and diversity.

We're talking about 10 percent black representation or 14 percent black representation.

Brett M. Kavanaugh: That's -- that's your, I would say, narrower argument.

I think Justice Kagan's right that you have a broader argument that it wouldn't -- it wouldn't matter. Then you have a narrower argument, as I read the submission and hear you, that even under the Bakke-Grutter framework, race-neutral alternatives suffice to achieve the -- the kind of diverse -- sufficient diversity. And I'm going to ask you the same question I asked the Solicitor General, which is, how do you -- how do you measure that on your narrower, as I see it, argument? Maybe you don't want to accept my characterization, but on what I see as your narrower argument, what -- what is sufficient, what's meaningful, to use the Solicitor General's words, in your view?

Cameron T. Norris: Well, I think you need to be measuring -- well, I mean, if you just take Grutter's interest as a given, you need to be measuring whether your student body is diverse on all dimensions.

I don't think Harvard is very --

Brett M. Kavanaugh: No, let me ask it specifically.

How do you know whether a race-neutral alternative proposed would be sufficient, adequate to achieve sufficient levels of otherwise underrepresented minorities, that you would satisfy what Bakke and Grutter, which I know you disagree with, but would satisfy what those achieve? And you heard the Solicitor General's answer, and I'd be curious, your responses to her or your alternative submission on that.

Cameron T. Norris: Well, I think the burden is on Harvard.

And so Harvard would need to come forward with evidence about race-neutral alternatives that have been presented or that it's considered itself and show how, under that alternative, it's not getting the educational benefits of diversity. Now, in this case -- the only testimony we have is that Harvard doesn't know what number it needs to get the educational benefits of diversity.

Doesn't know what evidence to consult to know whether it has that. Doesn't know what the evidence would even look like, as Dean Fitzsimmons testified, and the only evidence is Harvard's report on -- on the importance of diversity, which made --

Brett M. Kavanaugh: But -- but, in looking -- I'm sorry.

Looking at your proposals or looking at California or Michigan or Washington, one of the big themes, I think, of the briefs is, hey, we have these states that have done race-neutral alternatives and that's been -- that's been effective in achieving diversity, I think.

You can dispute that characterization, but that's a theme I -- I gleaned from the briefs. And as I look at that, I want to know, what does that mean, effective or adequate? What -- what's the measurement? Really, the same question I had for the Solicitor General. It's asking us to say, yes, that's adequate, but what does that -- got to say more than that, I think.

Cameron T. Norris: Part of the problem, I think, is the fuzziness of the interest in Grutter itself, but --

Brett M. Kavanaugh: No, no, no.

No. Accept the interest.

Cameron T. Norris: Okay.

Brett M. Kavanaugh: Sorry to interrupt.

Accepting that the interest, race-neutral, this is the back half of your -- back part of your brief, race-neutral alternatives are adequate. And I -- I just want to know, okay, well, California, Florida, great.

That's adequate because?

Cameron T. Norris: The --

Brett M. Kavanaugh: And that could be translated to Harvard because?

Cameron T. Norris: The -- the University of California system is the most racially diverse elite institution in the world.

Whites are the third most represented group on campus.

So, if racial diversity has these educational benefits, then they've achieved them. I think they've -- they studied their undergraduates on your racial consciousness and your cross-racial understanding.

They get really high scores at Berkeley.

Berkeley and all the UC system tells prospective students that we have a very diverse student body and that -- that the educational benefits were -- that you would expect to get from that are present.

It's the top ranked public university in the country.

It's great.

Brett M. Kavanaugh: And your point then, the -- the necessary add-on point is, and that could be translated to Harvard in essence or something sufficient could be translated to Harvard, and I just want you to fill in the blank there.

Why?

Cameron T. Norris: I -- I think it can.

Our -- our race-neutral alternative that we've focused on, Simulation D is what we called it, would make Harvard go -- it -- it would go from 82 percent economically advantaged to 51 percent.

You would actually have pure socioeconomic diversity where it's about 50/50. The number of white students would decrease.

The number of Asian students would increase.

The number of Hispanic students would increase.

I think you'd see lots of benefits in that.

Brett M. Kavanaugh: The number of black students would decrease from what to what?

Cameron T. Norris: Would decrease from 14 percent to 10 percent was the number.

And our expert testified that that number -- 10 percent is an absolute floor because he only -- the number couldn't be higher because his socioeconomic preference didn't have the sophisticated data that Harvard has. I think that's successful on -- on any metric.

And I -- I've never heard Harvard prove the -- the -- the delta there as being necessary for educational benefits of diversity.

Sonia Sotomayor: Counsel, I don't know what to do in a situation like this one. If you have perfect scores on every metric, you're not guaranteed a spot at Harvard because they have enough people with perfect scores of every background that exceeds their class limit. At some point, something has to break the tie.

And as we know, top 10 percent students of Asian and of black and Hispanic backgrounds in academic and extracurricular activities are not being admitted to Harvard. So it's not as if once we say take race out of this that all of the people who are -- that you consider super-qualified are going to get in.

But, on every matrix, there's going to be competing applicants. And you're saying a school can't look at its general diversity figures and say, among equal applicants, I might make race a tie-breaker if the numbers that I have on that matrix seem fairly low otherwise.

You're saying, no, you can't do that.

Cameron T. Norris: No, you cannot do that. That's what Title VI forbids.

It doesn't forbid --

Sonia Sotomayor: And that basically what you're saying is really race diversity is not important?

Cameron T. Norris: Race --

Sonia Sotomayor: So I don't actually see why all the race-based -- because all of the alternatives, whether it's the 10 percent plan, whether it's socioeconomic, they're all subterfuges to reaching some sort of diversity in race. You're touting them as race-neutral, but none of them are race-neutral.

You're doing them because you believe in racial diversity.

I just don't understand why considering race as one factor but not the sole factor is any different than using any of those other metrics.

Cameron T. Norris: Well, I don't think those are -- those are racial classifications in disguise.

Harvard's never criticized Simulation D that we presented as a racial classification disguise.

It criticizes it because it doesn't hit Harvard's precise racial numbers. It's based on socioeconomic status. And I don't think anyone thinks eliminating the legacy --

Sonia Sotomayor: No.

It -- it reduces SAT score averages.

It reduces lots of other factors to get to your numbers.

Cameron T. Norris: I mean, I think that's our point, that -- that SAT scores would go from the 99th percentile to the 98th percentile. That's not sacrificing academic excellence. That's moving Harvard from Harvard to Dartmouth. Dartmouth is still a great school.

That's -- that they get 98th percentile SAT scores.

We've got to make some sacrifices.

Sonia Sotomayor: I -- I -- I don't -- I -- I actually --

Elena Kagan: There are those who love it. (Laughter.)

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas?

Clarence Thomas: No.

John G. Roberts, Jr.: Justice Alito?

Samuel A. Alito, Jr.: No.

John G. Roberts, Jr.: Anything further, Justice Kagan? Justice Kavanaugh?

Brett M. Kavanaugh: Just have one -- one question about the -- how to think about the 25-year sentence in Grutter and the surrounding discussion.

Cameron T. Norris: Yeah, absolutely.

I think that what people forget about the 25-year mark or the four paragraphs you mentioned before it where they explain that racial preferences, they will fail their own acid test unless they make themselves unnecessary. So I think what Justice O'Connor was saying is that in 25 years, if we still need race, it's not that you get another 25 years. It's that we then declare racial preferences to be a failure and call it off and go to race -- race neutrality and try that instead.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: But we're not to that 25-year point yet, right? So, if -- if it has its own self-destruct mechanism where it says like, hey, Grutter says we've got to call it quits because they're just not working, are we obligated to give more time?

Cameron T. Norris: Well, Harvard has certainly never indicated that in five years it will stop using race.

Harvard over the 20-year span has not decreased its use of race at all. And I think the only legal standard this Court has ever recognized for when do you stop using race in education is in Brown with -- with all deliberate speed. The 25-year mark, we don't -- you know, we don't support it from the get-go.

But we do think it was a prediction from Justice O'Connor that has not borne out, and so Grutter on its own terms, I think 20 years is enough to call it.

John G. Roberts, Jr.: Thank you, counsel. Mr. Waxman.

Seth P. Waxman: Mr. Chief Justice, and may it please the Court: The evidence and findings in this case confirm what this Court has long recognized, that a university student body comprising a multiplicity of backgrounds, experiences, and interests vitally benefits our nation, stereotypes are broken down, prejudice is reduced, and critical thinking and problem-solving skills are improve. Student body diversity makes our businesses more innovative and globally competitive, our scientists more creative, our medical professionals more effective, and our military more cohesive. Experience has more than borne out Justice Powell's observation that our future as a country depends on having leaders who have enjoyed wide exposure to students as diverse as the nation itself. And so, as this Court has consistently held, if necessary to achieve genuine diversity, a university need not blind itself to race, which like the type of high school an applicant attended, their socioeconomic and family background or the part of the country they live in, forms a part of who they are. Now SFFA attempts to use Harvard's admissions program as some sort of proof that settled constitutional precedent is egregiously wrong, but while SFFA is fully entitled to its own legal arguments, it is not entitled to its own facts. Following exhaustive discovery in this case, the trial court considered the testimony of 30 witnesses and detailed expert analysis and made extensive meticulous findings which the court of appeal robustly affirmed, and those findings, applying strict scrutiny, are that Harvard does not improperly emphasize race in its admissions decisions, it does not engage in racial balancing, it most certainly does not discriminate against Asian American applicants, and it does not yet have a current workable race-neutral alternative. The false narrative to which SFFA clings is no basis to dismantle decades of precedent confirming the constitutionality of limited race consciousness in admissions. And I very much welcome the Court's questions.

Clarence Thomas: Mr. Waxman, the Petitioner argues that over 80 percent -- that, actually, you could -- you do have available a not -- a race-neutral approach that would yield different but excellent results. And the argument includes the fact that, at least as they argue, that you're over 80 percent wealthy students, that that's not diverse, and that over 30 percent -- or 30 percent or so of a class is made up of ALDC students and that if you were to lower those numbers, you could achieve far more diverse results without -- along socioeconomic lines.

I don't think it's arguable that Harvard is socioeconomically diverse.

But -- at least it doesn't appear that way.

But it seems that -- and that would not have a constitutional problem if you did it socioeconomically. And I'd like you simply to address their argument.

Seth P. Waxman: Yes.

Thank you. First of all, the numbers that my friend is throwing around are not, in fact, the numbers that actually reflect, for example, socioeconomic diversity at Harvard, where, as it stands now, 20 percent of all matriculants pay nothing, 70 percent of underrepresented minorities pay nothing, and well over half of all applicants get substantial financial aid. But, as to your point about race-neutral alternatives -- and I -- correct me if I'm wrong, Justice Thomas, but I think this is what you're asking me about -- we have exquisitely detailed metrics in this case with respect to race-neutral alternatives and findings and testimony with respect to the so-called ALDCs, which is an acronym that I think I was present -- I was actually literally present at the birth of, which is a preference for children of alumni, children of faculty, and staff, athletes, and other people who have found themselves on the dean's interest list. This -- the data in this case shows that if that -- if race were eliminated, you couldn't consider race, and you also could give none of those preferences, the racial diversity of the matriculating class would go down.

The -- the -- the representation of African Americans, if you just stopped considering race, would go from 14 to 6 percent, but if you also stopped considering ALDCs, it would go to 5 percent. With respect to --

Neil Gorsuch: Let's just say hypothetically, though, hypothetically, and I -- I know I'm going to get --

Seth P. Waxman: I -- I know all the usual caveats --

Neil Gorsuch: All right.

All right.

Seth P. Waxman: -- and I accept them.

Neil Gorsuch: Thank you, Mr. Waxman. (Laughter.)

Seth P. Waxman: Yes.

Neil Gorsuch: Thank you.

Seth P. Waxman: I'm pretty sure, since you're asking me, I'm not going to like the hypothetical.

Neil Gorsuch: You're not going to like it.

But let's assume that a very wealthy university could pay for everybody to go and still increase its endowment.

It's a "perpetual motion machine," Malcolm Gladwell called them. Let's say, if it just gave up preferences for donors' children, legacies, and squash athletes, okay, or maybe those who row crew, all of which tend to favor predominantly white children, and it could achieve whatever it deemed racial diversity, would it then be permitted to engage in race consciousness, or in that circumstance, would you agree that that would not be narrowly tailored?

Seth P. Waxman: So I'm not claiming -- I'm accepting your hypothetical as hard as it is for me in light of what the evidence in this case shows.

Neil Gorsuch: I understand that. There we go.

Seth P. Waxman: I -- I am not claiming that there is a compelling interest in having donors per se, there is a compelling interest in your proverbial art museum, there is a compelling --

Neil Gorsuch: There is a compelling interest in the art museum?

Seth P. Waxman: No, no.

Neil Gorsuch: No.

Seth P. Waxman: These are the things that I'm not claiming.

Neil Gorsuch: Okay.

Okay.

I'm sorry.

Seth P. Waxman: Okay? I'm disclaiming all of those things.

Neil Gorsuch: All right.

Seth P. Waxman: When you look at a so-called race-neutral alternative, the question that this Court -- that Justice Powell articulated in Bakke and this Court underscored and amplified in Grutter and then in Fisher is, how does -- is -- does that race-neutral alternative actually substantially impact the character of the institution and the education that's being provided? And here --

Neil Gorsuch: Oh.

Now let me stop you there because -- and I'm sorry to interrupt -- but, surely, getting rid of those preferences would substantially impact the university.

Seth P. Waxman: And -- and --

Neil Gorsuch: But you -- you're -- you're saying they are not a compelling interest for constitutional purposes --

Seth P. Waxman: No, what I -- what I'm saying --

Neil Gorsuch: -- for the Fourteenth Amendment? Or does the Fourteenth Amendment make -- make legacy children and donor --

Seth P. Waxman: Of course --

Neil Gorsuch: Okay.

So we agree?

Seth P. Waxman: Of course not.

And the truth of the matter is that if this were a case in which the evidence showed that eliminating a legacy preference made a substantial difference, the district judge who -- to say that the district judge was applying strict skeptical scrutiny on the narrow tailoring principles is quite an understatement --

Neil Gorsuch: Okay.

Seth P. Waxman: -- might have decided otherwise.

What the district court found --

Neil Gorsuch: Okay.

Okay.

Seth P. Waxman: And, Justice Gorsuch, if I can just --

Neil Gorsuch: Sure.

Seth P. Waxman: -- make one comment about the record which I think responds to the -- at least the gist and spirit of your hypothetical. With respect to race-neutral alternatives, the -- the simulation, what has come to be called "Simulation D" in this Court, the district court found that "the Simulation D would require 'sacrifices on almost every'" -- "'every dimension important to Harvard's admissions process.'" Among other things -- and these are all recited in the Smith Committee report, they are recited in the -- the extensive discussion of race-neutral alternatives in both the district court opinion and the court of appeals opinion -- are that, for example, with respect to academic excellence, the academic factor, the number of -- of matriculants with -- who score 1 or 2 on the five-point scale would go down 17 percent.

Neil Gorsuch: I'm familiar. Mr. Waxman --

Seth P. Waxman: Yeah.

Neil Gorsuch: -- I am familiar with all of that along with --

Seth P. Waxman: So, in other words, it's not --

Neil Gorsuch: -- we go down from 99 to 98th percentile.

I've got it.

If I might --

Seth P. Waxman: No, no.

Neil Gorsuch: -- if I might shift gears.

Okay.

I -- I -- I -- I am familiar with all those, and I appreciate that, and I understand your point.

It was a hypothetical. What do we do about history here? Because one -- one of -- one -- one thing we -- we know or we think we know or we're told in the briefs at least is that Harvard's move to a holistic application approach happened in the 1920s because it wanted to impose a quota on Jewish applicants, but it didn't want to do through front door, so it used diversity as a -- as a subterfuge for racial quotas.

Seth P. Waxman: What the record in this case shows, and it's -- it's discussed in some detail in the -- I'm going to blank on the names of the reports, but the various reports that Harvard has done over the years on diversity and diverse admissions in the case, one is the so-called Rudenstine Report and the other is the Khurana Report, both of which are in the Joint Appendix, is that Harvard actually even before the Civil War has as an admissions policy an effort to, in fact, diversify on both viewpoint and geography the class. Now it is no -- there's no doubt, and Harvard acknowledges and is ashamed, that in 1920, one of its presidents, President Lowell, decided that there were too many Jews and that they were then going to start asking questions on the application that would allow them to take into effect character. The notion that that bears at all on the way that Harvard's current admissions process, which uses a 40-person admissions committee that meets and decides each application en banc, in discussion, has any resemblance whatsoever to the racist, anti-Semitic policy of a single Harvard president is insubstantial, as the courts found.

Neil Gorsuch: Okay.

How do you respond then to -- again, we have many briefs on this point from Asian American applicants who have -- and -- and they say there's an entire industry to help them appear less Asian on their college applications and that they consider elite colleges to have Asian quotas effectively, if not in name.

Seth P. Waxman: I'll say two things, one, generally about the amicus briefs, and, two, specifically about Harvard, and I -- I certainly want to get to number two. But there are multiple amicus briefs filed by Asian American organizations and one that is particularly, I think, powerful, filed by 1,240 scholars of Asian American experience and Asian ethnicity, all of whom not only opine but cite studies showing that Asian Americans as a group -- and Asia, of course, represents 61 percent of the world's population and a multiplicity of ethnicities -- that Asian Americans demonstrably benefit from a holistic admissions policy that considers race as one factor among many. Now, with respect to Harvard, there was -- to say that there was evidence in this case is quite an understatement.

The district court found -- I'm citing -- I'm quoting page 261 of the Joint Appendix, and it's reiterated by the court of appeals on page 80 of the Joint Appendix -- that there was "no evidence of discrimination against Asian Americans whatsoever." Again, now on page 264, there was consistent, unambiguous, and convincing testimony that there was no discrimination in the administration -- administrative -- admissions process in general and the personal rating in particular. The -- the plaintiffs in this case could not, after four years of discovery in which they hand-picked applications to view in total, they could not produce a single witness to testify that he or she had been --

Samuel A. Alito, Jr.: Well, Mr. --

Seth P. Waxman: -- discriminated against.

Samuel A. Alito, Jr.: -- Mr. Waxman, let me stop you there because you referred to the personal score, and that's a score that Harvard gives based on character traits such as integrity, courage, kindness, and empathy.

But the record shows that Asian student applicants get the lowest personal scores of any other group. What accounts for that? Is it -- it -- has to be one of two things.

It has to be 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.

Seth P. Waxman: That's -- that is -- I mean, I -- I want to get to what the evidence was there, but that -- that syllogism, with all due respect, is wrong.

There was, for example, a study that was done in 1983 that looked at why it was that female applicants to graduate school at the University of --

Samuel A. Alito, Jr.: No, just address this.

Seth P. Waxman: Okay.

Here's --

Samuel A. Alito, Jr.: The personal score that's given to Asian applicants to Harvard, why do they -- why are they given a lower score than any other group?

Seth P. Waxman: Okay.

So the answer to why they -- as a group, why there is a slight numerical disparity with respect to the personal rating of Asian Americans, but -- and also a slight numerical disparity to the advantage of Asian Americans with respect to the extracurricular rating and the academic rating was the answer that their expert gave with respect to the latter two, which is that the only way that you can -- the only model that can be created to figure out what was going into the personal rating couldn't look at almost anything that admissions officers look at in those ratings. It can't -- there's no way that it could model what the guidance counselor letters said, what the teacher letters said, what the essays said, what the interviewers' letters said.

In other words, what they --

Samuel A. Alito, Jr.: Well, I thought the interviewers did not rate the applicants lower than other -- than other applicants based on race.

Seth P. Waxman: There --

Samuel A. Alito, Jr.: There was not the disparity in what was done by -- what was said by the interviewers.

Seth P. Waxman: The -- with respect to the alumni interviewers --

Samuel A. Alito, Jr.: The alumni interviewers.

Seth P. Waxman: -- based on -- based on the subset that was included here, that their subset, by the way, excluded all ALDC applicants, that is, even though they acknowledged that there was not only no evidence of discrimination against Asian American ALDCs, but they did better, they eliminated from their -- their model applicants that represent on average 30 percent of the admitted class --

Samuel A. Alito, Jr.: I -- I -- I still -- putting aside the -- the teacher recommendations or guidance counselor recommendations, which I'll come to, I still haven't heard any explanation for the disparity between the personal scores that are given to Asians.

They rank below whites.

They rank way below Hispanics and really way below African Americans. What -- you're talking about hundreds and hundreds of applicants, maybe thousands. What is the explanation for that?

Seth P. Waxman: So the explanation that was -- I -- I can't do better than the findings of fact in the trial court as affirmed.

And I -- and I -- but I want to make two points very clear with respect to your question. We -- all of this evidence was -- all of this was on display and in front of the trial court for, this Asian American part of it, for well more than a week, maybe two weeks. The district court found, considering all of the evidence, that there is "no credible evidence that corroborates the improper discrimination suggested by SFFA's interpretation of the personal rating," page 264.

Samuel A. Alito, Jr.: Well, all right.

I'll try one more time.

The district court found "a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers."

Seth P. Waxman: That's correct.

And what she said is the record will not allow a full explanation of that because, it -- the -- the -- this -- this -- there is -- there was no evidence with respect to what teachers said, what guidance counselors said, what these students wrote -- wrote about. But what we can say with respect to the allegation of discrimination in this case, which was the -- the -- the definition of discrimination that was at issue in Bakke and Grutter and Fisher and which their expert, which their lawyer got up at opening statement and said: "When we talk about discrimination in this case, we're talking about discrimination in admissions outcomes." And here again, the district court found and the court of appeals also concluded that there was no evidence of discrimination in admissions outcomes against Asian Americans --

Samuel A. Alito, Jr.: If you -- if you --

Seth P. Waxman: -- whatever you think about the personal rating, which is, after all, simply a number that --

John G. Roberts, Jr.: Justice -- Justice Alito would like to ask a question.

Seth P. Waxman: I'm sorry.

Samuel A. Alito, Jr.: Go ahead.

Seth P. Waxman: I'm not trying to filibuster you.

Samuel A. Alito, Jr.: Finish your -- finish your sentence.

Seth P. Waxman: Okay.

Samuel A. Alito, Jr.: Then I will ask one more question on this.

Seth P. Waxman: I just -- I -- I want to make one other thing clear to the extent that it's not clear from the record.

The personal rating, like the academic rating and the extracurricular rating and the athletic rating, is a number that is put down by a "first reader." That is, the file comes in, it's not usually complete, and just as a matter of triage, one of the 40 admissions officers goes through and gives these numerical numbers. It is -- the testimony was it is not considered in any way once the subcommittees and committees meet.

It "fades into the background." It is not the basis of admissions decisions. And so not only did the court find as fact that those -- that that slight disparity was not evidence of discrimination even in the personal rating, it had no effect with respect to outcomes.

Samuel A. Alito, Jr.: It makes no difference whatsoever?

Seth P. Waxman: It's --

Samuel A. Alito, Jr.: It doesn't affect --

Seth P. Waxman: -- it's not that it makes no difference whatsoever.

Look at what the expert testimony was, and I -- I realize we're --

Samuel A. Alito, Jr.: Does it make a difference or doesn't it make a difference?

Seth P. Waxman: It doesn't make a statistical difference in admissions outcomes --

Samuel A. Alito, Jr.: Then -- then why do you do it?

Seth P. Waxman: -- as both courts found.

Samuel A. Alito, Jr.: Then why do you do it?

Seth P. Waxman: We -- I said, I mean, as --

Samuel A. Alito, Jr.: If it doesn't matter, why do you do it?

Seth P. Waxman: We do it as a matter of triage.

Right now, Harvard is getting -- last year got 61,000 applications for 1600 slots. And it is an entirely rational way of figuring out where -- how you're going to allocate your attention to ask an admissions officer, as the file is being developed, just go through in a very rough way and rate a particular application based on what you can see on these four metrics. The fact that Asian Americans got a marginally -- on average, a marginally lower personal rating score is no more evidence of discrimination against them than the fact that they got a marginally higher rating than any data can show on academics and extracurriculars. It doesn't mean that they're either smarter or people think they're smarter.

John G. Roberts, Jr.: Thank you, counsel.

Sonia Sotomayor: Counsel --

John G. Roberts, Jr.: We'll get to you in a moment. There's been a lot of talk about African American applicants to Harvard in sort of a general indistinguishable way when, in fact, they cover a very broad swath of -- of applicants.

Seth P. Waxman: Of course.

John G. Roberts, Jr.: What do you do with respect to an African American applicant? I mean, you're concerned about diversity of viewpoint.

Let's say his viewpoints tend to be very close to, you know, the white applicants, he grew up in Grosse Point, you know, had a great upbringing, comfortable, his parents went to Harvard, he's a legacy, and yet, under your system, when he checks African American, he gets a -- a tip.

He gets a benefit from that. Isn't that --

Seth P. Waxman: So --

John G. Roberts, Jr.: -- isn't that very stereotypical on -- under the Harvard program?

Seth P. Waxman: -- I -- I think it's -- it's -- well, first of all, it is simply not the case that every -- every black applicant gets a "tip." In fact, I'll direct the Court's attention to page 1,811 of the Joint Appendix, which includes this beautiful chart which represents an undisputed model of the relative importance of race on application outcomes. And the one that you cannot actually even see to your far right is race.

Race explains --

John G. Roberts, Jr.: I can't see it because it's far away.

But, I mean -- (Laughter.)

Seth P. Waxman: Nonetheless, you have the page reference.

John G. Roberts, Jr.: -- it is not zero.

Seth P. Waxman: It is very close to zero. That is, the testimony in the case was --

John G. Roberts, Jr.: Well, so there's only a little racial discrimination in the case.

Seth P. Waxman: No -- 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.

John G. Roberts, Jr.: Well, isn't that --

Seth P. Waxman: What Harvard says is --

John G. Roberts, Jr.: -- isn't that what is -- Mr. Waxman, isn't that what the case is about, the discrimination against Asian Americans?

Seth P. Waxman: There was a -- Count I of the complaint was that Harvard was intentionally discriminating against Asian Americans.

The -- the entire evidence of that case, all of the plaintiff's proof, was that Asian Americans are treated worse than white applicants; that is, that there was prejudice, intentional discrimination.

That could not -- the evidence could not --

John G. Roberts, Jr.: What do you do with the -- what do you do with the charts --

Seth P. Waxman: -- more soundly have refuted that.

John G. Roberts, Jr.: -- what do you do with the charts in their brief, I think they're on page 24 --

Seth P. Waxman: Twenty-four.

John G. Roberts, Jr.: -- or 43, the academic decile and the comparative treatment of African Americans, Hispanics, and Asian Americans? You don't see a surprising disparity in that?

Seth P. Waxman: So there's a lot to be said about that, but I guess the first thing I would say about that chart is that their own expert agreed that because that chart is simply a descriptive statistic, it is "not equal to evidence of discrimination." It reflects a pattern which might or might not be real. Now understand that that chart that they've displayed for you, they have eliminated all ALDC applicants.

So one-third of the admitted class, over six years, they're not even in that chart.

They have all -- they're -- that chart is predicated on something called an academic index.

An academic index is a formula that looks at two things, high school grades and test scores.

The academic --

John G. Roberts, Jr.: And so people in the different racial categories, they have a different result based on other factors, which includes race?

Seth P. Waxman: They -- they have a different result because, among the many, many, many characteristics of any particular individual applicant that Harvard considers, one that it does not consider is the academic INDREX.

That is, the very metric that they're displaying for you Harvard doesn't even use. The only -- the testimony in the case was the only reason that the academic INDREX is even calculated is because the Ivy League athletic rules require that your recruited athlete class, the -- the AA for your -- AI for your recruited athlete class not be more than two standard deviations below --

John G. Roberts, Jr.: Okay, Mr. Waxman, put aside --

Seth P. Waxman: -- the matriculating class last year.

John G. Roberts, Jr.: -- put aside the hypothetical about the African American applicant who's a legacy.

Take two African American applicants in the same category, however you want to take it.

They both get or both can get a tip, right, based on their race. And yet they may have entirely different views.

Some of their views may contribute to diversity from the perspective of Asians or whites.

Some of them may not.

And yet it's true that they're eligible for the same increase in the opportunities for admission based solely on their skin color?

Seth P. Waxman: So the -- the point is --

John G. Roberts, Jr.: That was a question.

Seth P. Waxman: No, I know.

I'm -- I'm -- I'm attempting to answer your question. There is no doubt that for -- as the testimony showed, that for applicants who are essentially so strong on multiple dimensions, so extraordinarily strong on multiple dimensions that they are sort of on the bubble, that they might -- they have a real candidate for admission, African American -- being African American or being Hispanic or in some instances being Asian American can provide one of many, many tips that will put you in.

John G. Roberts, Jr.: Well, people say that, yes, but you will have to concede, that if it provides one of many, that in some cases it will be determinative.

Seth P. Waxman: I do.

I do concede that.

John G. Roberts, Jr.: Okay.

So we're talking about race as a determining factor in admission to Harvard.

Seth P. Waxman: Race in some -- for some highly qualified applicants can be the determinative factor, just as being the -- you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.

John G. Roberts, Jr.: Yeah.

We did not fight a Civil War about oboe players.

Seth P. Waxman: I --

John G. Roberts, Jr.: We did fight a Civil War to eliminate racial discrimination, and that's why it's a matter of -- of -- of considerable concern. And I think it's important to -- for you to establish whether or not granting a credit based solely on skin color is based on a stereotype when you say this brings diversity of viewpoint.

It may not bring diversity of viewpoint -- viewpoint in a particular case at all.

Seth P. Waxman: Well, number one, viewpoint diversity, while Harvard values it and seeks it, is not the only -- is by far the only reason for wanting a genuinely diverse class. We want a diverse class for backgrounds and interests and lots of things other than just viewpoint. If we were to use, for example, the -- the -- the example that has been discussed, I believe, for every other advocate that has stood up this morning, you know, and ask what about taking race into account if the student writes about it, the fact of the matter is Harvard is attempting not to have among it -- among a class of -- that is diverse among many generations, a class that is racially diverse only for people for whom their racial identity and their racial experiences is of such compelling importance that they write about it, right? The -- the -- your hypothetical about the black student who may have very different views than the stereotypical -- the stereotype of what a black student will have was, in fact -- is, in fact, the subject of the -- that's discussed in the Khurana Report. The Khurana Report gave in its analysis of the importance and dimensions of diversity an actual example that came from Richard Light's book, published book, which had a particular class.

It happened to have three African American students in it.

An African American student gave an answer in a discussion, which another African American student said: That is not my view.

My view is quite the opposite.

And a third one said: I wasn't actually going to say anything, but I have a completely different view. That was an incredible learning experience not only for the non-African Americans in the discussion but for them.

And that's what Harvard is trying to get at.

John G. Roberts, Jr.: Thank you, Mr. Waxman.

Seth P. Waxman: I'm sorry for taking so long to get that.

John G. Roberts, Jr.: No, no.

I appreciate your answers. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: In -- in Bakke, Justice Powell chose Harvard's admission program as a model, and that selection has had an enormous effect for the last 50 years.

Harvard submitted a brief in Bakke, along with a number of other colleges.

I went back and I looked at it and noticed that the brief talked about Harvard's program going back 30 years, but it didn't say anything about President Lowell or what Harvard had done back in the 1920s. So my question is, did Harvard sell Justice Powell a bill of goods? Do you think Justice Powell would have championed, would have held up the Harvard program as a model, as an exemplar for the whole country if he knew about the origins of the holistic program?

Seth P. Waxman: Justice Powell used the -- used Harvard's description about its admissions process and the limited extent to which it was then and for the past 30 years had been using race as one factor among many to achieve genuine diversity in its student body. Harvard -- the Harvard brief -- Justice Powell didn't take it or not take it because, prior to the Civil War, Harvard College was a leader in encouraging diversity in its undergraduate applications, any more than the fact that it had a terrible stain on its history a hundred years ago. It was taken for what it was presented as, and it was -- what it was -- and it fairly presented how the Harvard admissions process worked then and works now.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: Counsel, there are two questions that I want to get to that were asked of you.

The first was Justice Alito's about the poor personal rating.

It seems to me that Petitioner claims that Harvard's discriminating against Asian Americans because it uses subjective criteria that's affecting the personnel ratings.

That's how I think I read his question, correct? So it's not that it's using race in admitting people.

It's that it's using a corrupted personnel rating, correct?

Seth P. Waxman: Well, I -- I don't want to speak for Justice -- I don't want to presume to speak for Justice Alito.

Sonia Sotomayor: I agree.

Seth P. Waxman: I think it is -- it is fair to say that the criticism of the -- this -- the personal rating --

Sonia Sotomayor: Right.

Seth P. Waxman: -- relates to the "subjectivity" that is involved really in all of the ratings but particularly in the personal rating.

Sonia Sotomayor: Well, it goes -- the evaluations that use words like "not a" -- "non-leader," "not caring," "not" whatever --

Seth P. Waxman: Yes.

Yeah.

Sonia Sotomayor: -- it applies to all races, correct?

Seth P. Waxman: Of course.

Sonia Sotomayor: All races -- applicants receive those ratings as well, correct?

Seth P. Waxman: Correct.

Sonia Sotomayor: And I think what the expert was saying, the fact that you have these numbers, standing alone don't tell you anything, correct, you have to look at all the input that goes into why --

Seth P. Waxman: Correct.

Correct.

Sonia Sotomayor: -- whether there was discrimination or not, correct?

Seth P. Waxman: Correct.

Sonia Sotomayor: All right.

So the numbers alone tell you nothing.

Seth P. Waxman: That's -- that's right. The numbers can tell you -- you could -- you could tote up 100,000 applications and look at what the first reader says -- scored and measure it against declared race and come up with a feature that says, gee, across these 150,000 or, in this case, 150,000 minus all the ALDCs, it looks like, you know, on average, Asian -- self-declared Asian Americans have this number and self-declared whites have this number. It tells you nothing about why that number was given, any more than why --

Sonia Sotomayor: And -- and -- and I don't want to cut you off, but I want to get to --

Seth P. Waxman: No, I -- I -- I need to be cut off.

Sonia Sotomayor: And so it doesn't tell you why, and there was no proof to show why.

District court found that that number did not prove discrimination, correct?

Seth P. Waxman: There was actual proof that it did not reflect discrimination.

There was a multi -- there was expert analysis on -- on -- on multi-dimensionality and that looked at the non-academic index that showed that, for example, white applicants who got a 1 or a 2 on academics and Asian Americans who got 1 or 2 on academics, for whatever reason, the latter group got lower teacher ratings than the former. And same with guidance counselor ratings.

It doesn't tell you why.

It doesn't permit -- and it certainly doesn't permit an inference that Harvard is discriminating.

The -- the district court could not have been more definitive about the absence of any racial discrimination or discrimination against Asian Americans than it was. A finding that the Office of Civil Rights in the early 19 -- in -- in -- in 1990 also found.

Sonia Sotomayor: All right.

Could you deal with Simulation D? I think that you were trying to explain why the district court rejected that stimulation -- simulation.

Seth P. Waxman: Simulation.

Sonia Sotomayor: Simulation, I'm sorry, simulation numbers as meaningful.

Could you finish your answer?

Seth P. Waxman: Yes.

And, you know, in particular, I'll -- you know, I'll -- I'll point the Court to -- because I'm not going to be able to do it as well as the district court -- to pages 208 to 220 of the Joint Appendix, which is the district court's findings on this, and 73 to 79, which is the court of appeals, and 1307 to 1325, which is the Smith Committee's analysis of this. But, basically, what the district court found was, as I said, that Simulation D would require significant sacrifices -- I don't have the quote right in front of me now -- on almost every dimension that Harvard values, including a substantial decline -- we're not talking about a decline in SAT scores or going from the 99th percentile to the 98th percentile. We're talking about the following things that the court found. The -- the percentage of the matriculating class that would be academic 1s or 2s would go down by 17 percent.

Every other factor would go down by at least 10 percent, between 10 and 22 percent. The number of -- of matriculants interested in majoring in the humanities, which is a major tip that Harvard gives because of Harvard's recent inability to matriculate excellent students who want to major in the humanities, would go down by 14 percent. The number of African Americans admitted would go down from 14 to 10 percent. It was the whole confluence of all of those consequences that led the district court to confirm that it was not a workable, effective race-neutral alternative.

Sonia Sotomayor: Well, it seems that for Justice Gorsuch, none of those other things are compelling interests.

And how do --

Seth P. Waxman: Well --

Sonia Sotomayor: -- you respond to that? He would say --

Seth P. Waxman: Well, I -- I'm not sure I'm ascribing that to Justice Gorsuch, but --

Sonia Sotomayor: Well, I -- I -- but he seemed to say an art museum is not important.

So, if the matrix shows that those interested in the arts falls to -- falls dramatically, that might be of concern to Harvard.

I think it was valuable, but --

Seth P. Waxman: It might very well be a concern.

Would it -- would it lead -- would it lead a judge skeptically applying strict scrutiny to say: Oh, it just doesn't work, you're not going to have an art museum, or you're not going to have a squash team, or you're not going to have, you know, alumni contributions. It wasn't any of those things.

It's a caricature to say that those were the reasons why this particular thing wasn't a race-neutral alternative. Now I just want to say, if you think, notwithstanding the findings, that the district court and the court of appeals didn't properly apply the kind of strict scrutiny and narrow tailoring analysis that it should have, okay, that's a remand. I don't think the record will bear that out.

It is not a reason to dispense with decades of constitutional precedent that has allowed all of these, what this Court has properly considered to be a compelling national interest in having this kind of learning environment.

John G. Roberts, Jr.: Thank you. Justice Kagan?

Elena Kagan: Mr. Waxman, there have been a lot of questions today, and I take these to be important questions, about what is the end point.

If -- if we can achieve racial diversity through neutral mechanisms rather than through race-conscious mechanisms, we should.

We've said that many times. So the question is, when can we say that we can achieve our racial diversity goals in that way? And I guess I have a two-part question and -- and then an assumption that I want you to bake into the two parts. The first is, what is Harvard doing in an ongoing way to test whether that is true? And the second is, does Harvard see any progress along that dimension? In other words, I think it was said by Petitioner's counsel, oh, Harvard is doing -- you know, is putting this -- is -- is -- is -- is using as great a preference as it ever did.

And the question is, over time, has Harvard found that it has become less necessary to use race-conscious means or not? Here's the assumption that I want to have you bake into this, which is I take Petitioners to be saying, and I think that this is an important thing, that it doesn't matter if some part of the reason for adopting race-neutral approaches is to achieve racial diversity.

I think that they very clearly said that.

I'm not sure I understand why given their legal arguments, but I think that they very clearly said that. So assume that you can, you know, sit down and say we're -- we're -- we're -- we're -- we're trying to figure out what race-neutral mechanisms to use, and part of the goal is to achieve racial diversity.

What is Harvard doing to answer that question and is it any closer?

Seth P. Waxman: I have firmly in mind the second part of your question.

If I don't also answer the first, please remind me. The evidence in the case is that for decades Harvard has been taking steps other than the conscious -- other than race-consciousness to increase the level of diversity, including ethnic and racial diversity. And these are discussed, actually, in the Smith Committee report and the -- and Dean Smith's testimony and in the findings.

It, for example, in the wake of Grutter and actually before substantially increased the amount of resources that it put in outreach, in partnering with organizations that -- that assist and, you know, advance the educational potential of minority and low socioeconomic students. It has -- it has achieved some success in -- in -- in getting additional applications not just from minorities but from minority applicants who are actually really qualified to attend Harvard. It thought about, well, maybe a way to increase this is to substantially increase our financial aid, and the -- there's evidence in the case, there's actually a beautiful chart that shows how the level of financial aid went up at various points over two decades and what happened with respect to the racial diversity of the applicant class and the matriculating class. And what the testimony showed and the findings was it made a difference to a point. After a certain point, it no longer made any difference.

Harvard tested the proposition that its early action program, it's -- it's not early decision in the way that most schools are because you're not committed to it, but that by admitting a significant percentage, I don't know, 20 or 25 percent of its class for people who applied, you know, early, early on in the academic year, it was disadvantaging minority applicants and applicants from low socioeconomic circumstances because they didn't have the kind of resources, guidance counselors and test prep and all that sort of stuff, to be able to take advantage of it. They -- they -- they ended it and asked other universities to do the same thing. With two exceptions, no one else did.

And what they found at the end of five years was that it had the opposite result; that is, it made it more difficult for them to recruit and matriculate underrepresented minorities. And there were -- there were a bunch of other things in the record about things that Harvard has done, some of which have had substantial success.

And so the notion that Harvard is doing things the same way and is always going to do the same things the same way is just wrong. Harvard is -- Harvard completely recognizes and endorses this Court's statement in Grutter that "there are serious problems of justice connected with the idea of preference itself." That's why it holds itself -- why it is attempting to achieve all of the compelling benefits of -- of a genuinely diverse student body in the most race-neutral way that it can. And in terms of -- I don't know if this is the first part of your question, but Harvard is actually attempting -- is measuring how it is doing in terms of diversity and the benefits of diversity and what needs to be done and what other things can be done in a race-neutral way on a very regular basis. And I -- I can give you the data on -- you know, with respect to either, but, for example, Harvard -- there is a -- Harvard said -- committed itself in 2018 that it would, you know, continue to look for race-neutral alternatives and have another systematic review, you know, systematic, statistically, you know, rigorous review about how it is doing. That committee has been formed and has already met for the five years that will -- you know, that will transpire next year.

Yes, we are trying.

Yes, we have tried other things that have helped.

Are we there yet? No.

And that's the reason why the 45 percent -- the district court's finding of 45 percent.

That's what it shows.

It shows --

Elena Kagan: Thank you.

John G. Roberts, Jr.: Thank you, Mr. Waxman. Justice Gorsuch?

Neil Gorsuch: Yeah.

I -- I -- I just was hoping to get an answer to the second half of the question --

Seth P. Waxman: Oh, okay.

Neil Gorsuch: -- which was when -- when does Harvard anticipate this will end?

Seth P. Waxman: Yeah.

Neil Gorsuch: Grutter spoke of it being a 25-year window, as you're well aware. Harvard could tomorrow do without federal funds and continue to discriminate on the basis of race however it pleased.

I'm sure that would be a hardship.

But what -- what is -- what is Harvard's view on how long this will take?

Seth P. Waxman: So Harvard, like the Solicitor General and like UNC, understood all four paragraphs of what Justice O'Connor wrote in her opinion and takes it to heart.

What Justice O'Connor said was it's been 25 years since Grutter, there's evidence that our society is changing, it is -- we expect that 25 years from now the use of racial preferences will no longer be necessary.

Neil Gorsuch: So Harvard agrees with that?

Seth P. Waxman: And --

Neil Gorsuch: Does Harvard agree with that?

Seth P. Waxman: I don't -- I -- Harvard does not currently, based on its data, expect that in 2028 it will have -- been able to use a -- only race-neutral alternatives.

Neil Gorsuch: So --

Seth P. Waxman: So what this --

Neil Gorsuch: -- so -- so --

Seth P. Waxman: -- but what I do agree with --

Neil Gorsuch: -- what -- what are -- what are Harvard's --

Seth P. Waxman: -- if I -- if I may --

Neil Gorsuch: I'm -- I'm -- just -- I'm just -- just -- it's a real simple question.

If Harvard doesn't have an answer, that's fine, but does Harvard have some view about when?

Seth P. Waxman: Harvard -- yes, Harvard's view about when doesn't have a date on it. Harvard takes to heart Justice O'Connor's opinion that "in the context of higher education, the durational requirement can be met by periodic reviews to determine whether racial preferences are still necessary" --

Neil Gorsuch: Okay.

Seth P. Waxman: -- "to achieve student body diversity."

Neil Gorsuch: Thank you.

Seth P. Waxman: And we want to be put to that strict scrutiny test.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: I do have two or three questions. First, you're seeking educational diversity, as I understand it, at Harvard, but my understanding, correct me if I'm wrong, is that you don't ask about religion. And why the disparate treatment of religion and race when -- when evangelical Christians, Catholics, Muslims add to the educational diversity at Harvard and other religious groups add to the diversity and why -- why not ask about that?

Seth P. Waxman: So Harvard greatly values religious diversity.

It is extraordinarily proud of the religious --

Brett M. Kavanaugh: How can it track it if it doesn't ask about it?

Seth P. Waxman: Oh, how can it track it?

Brett M. Kavanaugh: How can it track it in the admissions process? It may happen by happenstance.

I'll let you finish.

Seth P. Waxman: Okay.

Harvard is not tracking it in the admissions process other than to the extent that and many, many students indicate what their religion is.

Harvard -- Harvard has not provided, thought it necessary, and so far as I know, nobody has suggested that Harvard has any need to provide a tip for religious diversity because the Harvard undergraduate population is so religiously diverse. There are currently 47 --

Brett M. Kavanaugh: That answers my --

Seth P. Waxman: -- chaplains --

Brett M. Kavanaugh: -- that answers my question.

Seth P. Waxman: Yeah.

Brett M. Kavanaugh: I understand. Okay.

That answers --

Seth P. Waxman: I just -- I just want to say that our ministry minister -- ministers to 27 different religious denominations.

Brett M. Kavanaugh: All right.

It was a factual question. Second, I think you agree that the baseline in our precedents, operating within the confines of our precedents, as you want us to do, is race neutrality.

And we've allowed, though, limited consideration of race in educational -- in higher educational admissions. As you've heard, two limits on that, as I understand it, one, the adequate race-neutral alternatives; two, the durational limits, the 25 years or whatever durational limit you think works there. I just want to make -- make sure you agree with how I set that up.

In other words, race neutrality is the baseline.

There are two limits on the consideration of race-conscious educational admissions at colleges and universities.

Adequate race-neutral alternatives would be one.

A durational limit, 25 or something else, would be the other.

Is that how you read our precedents or not?

Seth P. Waxman: I read your precedent in that -- I think you have other requirements too, which is it has to be flexible, it has to be one factor among many, you know, et cetera, et cetera.

Brett M. Kavanaugh: Right.

Seth P. Waxman: But, with -- the only -- I agree with your two categorizations, except that with respect to the durational requirements, we understand it to be the -- the -- the -- inconsistent with the language from Justice O'Connor's opinion that I quoted the Court --

Brett M. Kavanaugh: Okay.

Seth P. Waxman: -- which is that the narrow tailoring requirement and the race-neutral alternative requirement, strictly, scrupulously, and skeptically applied, will tell us when race-neutral alternative --

Brett M. Kavanaugh: Okay.

And one last one.

This picks up on Justice Kagan's and Justice Gorsuch's questions, I believe. But, on the adequate race-neutral alternatives question, it seems that Harvard would have to sacrifice potentially something else to achieve what you think would be meaningful, sufficient racial diversity.

And I think the questions, Justice Gorsuch, were, well, why don't you have to then sacrifice those something elses to achieve the -- if you're going to otherwise use race-conscious means?

Seth P. Waxman: There's no question that our --

Brett M. Kavanaugh: In other words, we -- I think that's a legal question we're going to have to ultimately figure out.

Does a university have to sacrifice those other things or not?

Seth P. Waxman: And so what this Court's precedents say, you know, Bakke, Grutter, and Fisher, are, of course, race -- you know, there are race-neutral alternatives that may require some sacrifices.

A university is not required to sacrifice, you know, so much that it changes the essential character.

I -- I -- I wish I had the -- this Court's own words, but I think that's the test, and that was certainly the test the district court applied.

Brett M. Kavanaugh: That -- that suffices and you answered it.

Thank you.

Seth P. Waxman: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: Mr. Waxman, this is not a question about Harvard's history of anti-Semitism, but I do want to go back to the opinion in Bakke and Justice Powell's holding up Harvard's application process as a model and then Justice O'Connor in Grutter again referred back to Harvard's admissions process. And I want to know whether Harvard's admissions process has meaningfully changed from the time that Justice Powell held it up? I mean, what Justice Powell found attractive about it, what Justice O'Connor endorsed, was the holistic aspect of it and that race can be used as a tip.

In its essence, is it the same?

Seth P. Waxman: Yes, race can be used as a tip, as one of many, many, many tips in an effort to achieve diversity that is across many, many dimensions beyond ethnic.

Amy Coney Barrett: And so, in the way that Harvard thinks about its admissions process, it is the same now as it was in Bakke?

Seth P. Waxman: Yes.

Harvard is -- can I just give a -- a one-sentence --

Amy Coney Barrett: Yeah.

Sure.

Seth P. Waxman: -- explication of that? What the Harvard admissions committee is attempting to do, with the benefit -- the luxury of a pool of applicants that is supremely qualified, is to bring together a class of 1600 matriculants who are best in the judgment of the admissions committee and the faculty that oversees it, are best able to learn from and teach each other as an organic whole.

Amy Coney Barrett: So my question is -- we've been talking a lot about end point, and my question is: So Bakke was, you know, almost 50 years ago now.

If Harvard's admissions process is essentially the same in the way that it accounts for race and thinking about end points, and I -- I recognize and you described some of the things that Harvard is doing to try to recruit more minority applicants, but why are we to think that there will be an end point? And Grutter's pretty insistent.

I mean, Grutter says the requirement that all race-conscious admissions programs have a termination point, so there has to be one, and if it really hasn't changed much since Bakke --

Seth P. Waxman: So the system that is we're taking race into account as one factor among many, obviously, the extent to which race is race qua race is a factor, is dependent on the extent to which so-called race-neutral alternatives have already helped Harvard to matriculate a class that is diverse along this dimension and others. And Harvard does track its progress in this regard and accommodate the admissions process.

For example, in terms of where we are, when will we get there, you know, the -- the record contains, you know, any number -- the -- a faculty committee study, a working group, a task force, all of which made reports about this, but it also annually does a comprehensive survey of its graduating seniors and asks them questions that go to this. And the -- the survey in the record on the benefits side to -- I think to Harvard's great satisfaction showed that two-thirds of all of the seniors said that their Harvard experience strengthened their ability to relate to people of different races, nations, and religions, and 70 percent said that Harvard's experience had led them to seriously question or rethink their beliefs about a race or ethnic group different than their own.

That is --

Amy Coney Barrett: But that's showing the educational benefits of diversity, right?

Seth P. Waxman: And it shows that -- it shows that in terms of are we there yet, you know, we're not going to achieve a hundred percent.

Honestly, 70 percent is pretty darn good. And it would not have been -- at the time that Harvard wrote its brief in the Bakke case and at the time that Grutter was decided, those were not the statistics.

Amy Coney Barrett: So you think you're getting closer to a termination point?

Seth P. Waxman: I -- we are very definitely getting closer to a termination point both in terms of engineering race-neutral alternatives but also achieving a class that is diverse across religious viewpoint, racial, ethnic, you know, academic, political -- you know, yes, we are -- we -- we are proud of the progress we've made. As Dean Smith said, we still have work to do, including with respect to the way in which we treat students and allow students to interact with each other once they get here.

Amy Coney Barrett: Okay.

Thank you.

Seth P. Waxman: Thank you.

John G. Roberts, Jr.: Thank you, counsel.

Seth P. Waxman: Thank you.

John G. Roberts, Jr.: General Prelogar.

Welcome back.

Elizabeth B. Prelogar: Thank you, Mr. Chief Justice, and may it please the Court: The Court has heard hours of argument on the constitutional issues in this case, and so I would like to take a step back and focus on the profound consequences of the Court's decision here for the nation that we are and the nation that we aspire to be. Petitioner seeks a sweeping ruling that would harm students at schools and colleges throughout the nation.

A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation's leading educational institutions. Race-neutral alternatives right now can't make up the difference, so all students at those schools would be denied the benefits of learning in a diverse educational environment, and because college is the training ground for America's future leaders, the negative consequences would have reverberations throughout just about every important institution in America. For the United States military, as I've explained, having a diverse officer corps is a critical national security imperative.

For corporate America, diversity is essential to business solutions.

For the medical community and scientific researchers, diversity is an essential element of innovation and delivering better health outcomes. Overruling Grutter would have devastating effects on our nation's efforts to move ever closer to a more perfect union where our nation's diversity is a source of its greatest strength.

And I think the Court should not take the destabilizing step of overruling precedent here. Justice Gorsuch, you asked a series of questions about race-neutral alternatives, and I want to offer the position of the United States. I think, Justice Barrett, you also asked these questions about things like legacy, donors, children of faculty and staff. And I want to be very clear on behalf of the United States that if it could be shown that eliminating those kinds of preferences would actually enable a university to meet its -- its diversity goals and to be able to offer the educational benefits of a diverse student body, then, yes, we think absolutely that can function as a race-neutral alternative.

And it's incumbent on universities to consider those kinds of options as they chart a path forward. And so I think, to -- to the extent that the Court has any concerns about that or thinks that the lower court in this case did not apply that kind of standard, that would be wrong because the Court has made clear that strict scrutiny in this context is strict and that universities have to undertake continual obligations to search for those types of alternatives in order to be able to achieve diverse student enrollment without taking race into account.

Samuel A. Alito, Jr.: Grutter was about college admissions, but in your opening statement, it seemed to me you want to extend it to employment.

Is that right?

Elizabeth B. Prelogar: No, Justice Alito, I was trying to make the observation that the experience of students in those four years of college have effects on the course of their life.

Samuel A. Alito, Jr.: Then why were you talking about corporate America?

Elizabeth B. Prelogar: Because corporate America, like the United States military, relies on having a diverse pipeline of individuals who had the experience of learning in a diverse educational environment and who themselves reflect the diversity of the American population. We're not asking the Court to extend Grutter in any way here.

We're only asking the Court to reject Petitioner's request for the Court to overrule that precedent because I think it would have these destabilizing ramifications in just about every important industry in America.

Amy Coney Barrett: General, if we were talking about the 25-year mark, so let's imagine we fast-forward and it's, you know, five years from now and we're considering whether to -- same question, would it be overruling Grutter at that point to say this is the end point, we're at 25 years, no more race-consciousness in admissions?

Elizabeth B. Prelogar: I think it would if this Court based that decision on the nature of the compelling interest here.

I just don't think it's a tenable way to read Grutter to say that the Court was suggesting that 25 years from now, poof, the interest in diversity in higher education is no longer compelling. That is and will remain a compelling interest.

And Grutter observed that over time, it would be possible for schools and universities to achieve that interest without having to take race into account. And I understand the concerns, Justice Barrett, that you've raised, Justice Kavanaugh, that you've raised about the fact that the arc of progress in society has perhaps been slower than the Grutter Court imagined. I think, if this Court has those concerns, it could emphasize that the narrow tailoring requirement remains very strict in this case.

Universities should be held to a high standard and a heavy burden to explore those alternatives, to put into practice the race-neutral alternatives that currently exist and to try to get to the point that the Grutter Court imagined and that we will eventually reach as a nation where it is no longer necessary to take race into account.

Amy Coney Barrett: But what if the structural barriers -- I mean -- there's not a remedial justification on the table here.

Our precedents rule that out. What if the structural barriers just make it impossible 25 years from now to sit here and say that without race-conscious admissions, you know, especially if Harvard wants to keep everything exactly the same with respect to its other metrics like SAT scores not dropping at all and -- and the museum and the squash team and all of that stuff, what if it's just impossible? And so what if Grutter was grossly optimistic in what it thought was achievable and perhaps, you know, Grutter, as we've talked about earlier in the argument, emphasized the risky and potentially poisonous nature of race classifications, what if there's no end point? I mean, could we still say that there's a compelling interest in the educational benefit of a diverse classroom if it comes at the cost of something that Grutter itself recognized was very dangerous and corrosive to society?

Elizabeth B. Prelogar: I do think that, yes, the compelling interest would still exist there.

I recognize the force of the point that there are structural barriers that can impede progress, but I think it would be wrong to suggest that those barriers are going to exist in perpetuity in all places and with respect to all schools. The states are not similarly situated in this regard.

There are nine states, as Petitioner has emphasized, that have barred the use of race in college admissions, and many of the universities and colleges in those states have been able still to achieve enrollment of diverse student bodies. And I think that it's incumbent on -- on every college and university around the nation to study from and learn from those examples, and it's not accurate to say that if we look forward into the future in 25 years, still, all places throughout the nation, it will be necessary to have race-conscious admissions. But I do want to be responsive as well to the point that -- that you made about resisting any changes whatsoever and be clear, again, on behalf of the United States that we do not think that a university could reject a race-neutral alternative because it would have those kinds of modest impacts on things like SAT scores. I think that that can clearly be the kind of thing that would qualify as a viable or workable race-neutral alternative.

And if the Court has any concerns that lower courts are not applying that stringent standard, then I would urge the Court to make that clear in a decision and -- and provide guidance going forward.

Brett M. Kavanaugh: I think that's very important, what you just said.

So you're saying an adequate race-neutral alternative, it would be permissible for the Court to say that you have to eliminate things like legacy, children of donors, if you could obtain a sufficient -- meet its diversity goals, was your word, by doing so and doing race-neutral admissions.

Do I have that correct?

Elizabeth B. Prelogar: Yes, that's exactly right, Justice Kavanaugh.

And I think that that flows directly from this Court's --

Sonia Sotomayor: But I'm sorry, at what point does that become dramatic? Harvard won't be Harvard if it drops from 2200 to 500.

Elizabeth B. Prelogar: Yes, and I was speaking --

Sonia Sotomayor: And -- and -- or there is a point at which a change is significant or insignificant.

Elizabeth B. Prelogar: I agree, Justice Sotomayor.

And I think that the -- the lines that the Court has drawn in this context -- context flow from Grutter itself, where the Court made clear that a university doesn't have to sacrifice its reputation for academic excellence.

In other words, it doesn't have to accept those kinds of dramatic changes to the academic quality of the incoming student class. I was speaking to --

Sonia Sotomayor: Well, your adversary on Simulation D says the change was only from -- it was less than a 40-point change, and so he says that's insignificant. Why do you think his point is not valid?

Elizabeth B. Prelogar: With respect to Simulation D in particular, it wasn't just changes to SAT scores.

I think the most substantial reason that the district court rejected that as a workable alternative here is because it would have had a precipitous decline in the number of African American students. They would fall by about 30 percent in the enrollment of the class.

And that was coupled with the impact on reductions in the number of students who had the highest academic and extracurricular ratings who could then be admitted in the class.

But I -- I don't --

Sonia Sotomayor: So you're sacrificing the essence of Harvard, academic excellence?

Elizabeth B. Prelogar: That was what the district court found with respect to Simulation D.

But, you know, I -- I guess I would say I think that that was a factual finding in this case.

The First Circuit affirmed it.

But, as Mr. Waxman said, if you do not think the district court applied the right stringent standard in evaluating that as a race-neutral alternative, then that is a basis to send this case back, because we agree that strict scrutiny is strict in this context.

Brett M. Kavanaugh: The other side points to the examples, as you've heard throughout, of California and Washington, Michigan and Florida and other states and says, well, if they just put their effort to it, they will be able to use race-neutral alternatives and still be able to achieve its diversity goals -- I'm going to bracket the fact that "its diversity goals" is still pretty vague, but we talked about that in the last case -- but would still be able to do so. Do you want to respond to that?

Elizabeth B. Prelogar: So, as I was saying to Justice Barrett, I do think it's the case that there are some states and certainly some institutions today that can fully achieve a diverse student body without needing to take race into account. With respect to California and Michigan in particular, since your question referred to them, I would point the Court to the amicus brief filed by those university systems in those states, which have explained that, actually, they have struggled, despite implementing any number of race-neutral alternatives, to actually see true diversity across all of their campuses, including their most selective campuses. And University of California in particular points to Berkeley and UCLA as places where there have been these dramatic declines in diversity, racial diversity, on campus.

Brett M. Kavanaugh: I -- I guess this will be repetitive, but you've said "true diversity," "meet its diversity goals." You know, I'm not sure exactly what that means, and that's -- I'm going to have to figure that out, I guess, but without any more precise guidance on what exactly "meet its diversity goals" means as to numbers, it's a little hard to assess, I think.

Elizabeth B. Prelogar: Well, let me try to be more precise.

I think that the relevant compelling interest here comes directly from Grutter, where the Court recognized that it is student body diversity in all of its many manifestations.

The Court has made clear it's not simple ethnic or racial diversity, and that's what creates a lot of the guardrails in this area in terms of no racial quotas, no automatic awards of points, no separate set-asides or separate admissions tracks. The nature of the interest is not in achieving a precise numerical threshold of minority enrollment at a particular university. Instead, the Court has defined this as the educational goals that derive from having a diverse student body along multiple dimensions. And that is the -- the ultimate aim of these policies.

Neil Gorsuch: So -- so a university that -- that did use a -- a -- a numerical goal or did grant a -- a tip based on race alone would be a problem?

Elizabeth B. Prelogar: Yes, I think, if a university used a numerical goal and that functioned as an inflexible goal for the university or -- or functioned as a quota system, that's plainly unconstitutional.

This Court's precedents don't countenance that.

Neil Gorsuch: And when we --

Elizabeth B. Prelogar: With respect --

Neil Gorsuch: -- when we look at that -- I'm sorry to interrupt.

Elizabeth B. Prelogar: Okay.

Neil Gorsuch: Go ahead and finish.

Elizabeth B. Prelogar: I -- I just wanted also to try to be responsive to your point about using race as a -- as a tip or a preference. And to be clear, that there as well, the Court has made clear that that can't be mechanical application, so you can't preference every single person automatically or inflexibly.

Neil Gorsuch: Okay.

And on -- but -- but what do we -- what is a court, a lower court, all right, faced with, you know, diversity and very hard standards to apply, supposed to do when a university's admissions data with respect to race looks more or less identical every single year?

Elizabeth B. Prelogar: So I think, at that point, the district court needs to probe whether impermissible racial balancing is happening. The Court has made clear that that is not appropriate, that the relevant compelling interest here is not in trying to achieve a precise percentage of particular racial or ethnic groups in the class year over year.

And so, if that kind of evidence existed, then I think it would be incumbent on the university to -- to establish that it is not actually engaging in racial balancing.

Neil Gorsuch: Thank you.

Sonia Sotomayor: I think, in this case, wasn't it clear there were variations among the groups?

Elizabeth B. Prelogar: Yes, that's exactly right, Justice Sotomayor.

And what the district court said with respect to the Harvard facts is that there were greater fluctuations with respect to the number of students in each group who were admitted year over year than there were fluctuations in the applicant pool of individuals of those particular races. And so the -- the district court said that runs completely contrary to a theory of racial balancing in this case.

Sonia Sotomayor: Now going back to the earlier argument, Petitioner's counsel in rebuttal raised Berkeley's figures, and I don't remember it exactly, but it was like a third white, a third Hispanic, a third this.

He -- at the end, he mentioned a black population that seemed tiny. But how do you deal with answering Justice Kavanaugh's question of what constitutes adequacy?

Elizabeth B. Prelogar: So --

Sonia Sotomayor: Because he seemed to imply, your opponent, opposing counsel, that -- that Berkeley was already diverse.

It had numbers that were close to the population.

Elizabeth B. Prelogar: Well, Justice Sotomayor, I would point to the brief filed by the University of California system in this case, and they have explained in detail how Berkeley has -- has experienced a substantial decline in the African American student population.

I think it's gone down to 3 percent.

And they further have explained the toll that's taken on their ability to offer the educational benefits of diversity, as well as the glaring sense of racial isolation that those students have on the Berkeley campus.

John G. Roberts, Jr.: Thank you, General. Justice Thomas? Justice Alito? Justice Kagan?

Elena Kagan: General, one of the through lines of the briefs in this case is -- I -- I think it's -- it's actually the first line of the Petitioner's brief or something like it -- is -- is essentially Brown compels the overruling of Grutter. And the Petitioners actually haven't given a whole lot of attention to that argument, but the idea is, and some of the questioning has reflected this -- this idea, is that, you know, we have this long and horrible history of racial discrimination, and, surely, that functions here to prevent racial classifications or to prevent race consciousness of the kind that Harvard and UNC are using. And I just thought I'd give you an opportunity to discuss what you think of that argument.

Elizabeth B. Prelogar: I think that argument is wrong in just about every respect. There is a world of difference between the situation this Court confronted in Brown, the separate but equal doctrine that was designed to exclude African Americans based on notions of racial inferiority and subjugate them, which, as this Court recognized, the school children affected their hearts and minds in a way unlikely ever to be undone, a world of difference between that and the university policies at issue in this case, which are not intended to exclude anyone on the basis of race or -- or even to benefit particular racial groups on the basis of race but, rather, are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment. And I think it is profoundly ahistorical to say, as Petitioners do, that those situations are precisely equivalent, and it also trivializes the grievous moral and legal wrongs of state-sponsored segregation and the enormous harms that millions of Americans suffered under it.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Just to return to Justice Sotomayor's question to you, you indicated, I believe, that -- that -- that percentages varied dramatically over the years. I must be missing something. On page 23 of the Petitioner's brief, they have the statistics from Harvard from 2006 through 2018, and -- and -- and the share of Asian American students varied three -- three -- between 17 and 20 percent every year, 17 percent actually being the outlier.

Am I missing something?

Elizabeth B. Prelogar: No, Justice Gorsuch.

I think that the point I was trying to make is that that band is actually a greater amount of fluctuation than was present in the applicant pool with respect to the number of Asian Americans who were applying to Harvard every year. But -- but let me just say this --

Neil Gorsuch: Is the same thing true with Hispanics and -- and African Americans, because the numbers are pretty similar -- similarly banded for those?

Elizabeth B. Prelogar: Yes, that's my understanding, that the district court's factual finding in this regard is that there was relative stability with respect to the number of individuals in those groups who were applying and greater fluctuation with respect to admissions decisions.

Neil Gorsuch: No, these -- these -- these are -- these -- these are admitted students I'm talking about here.

Elizabeth B. Prelogar: Yes.

And the district court was drawing a comparison between the -- the bands that you were just describing and the bands that exist to --

Neil Gorsuch: The point is whatever the pool is, every year the percentage is the same.

And the U.S. Government below said this manifest steadiness speaks for itself. Am I missing something?

Elizabeth B. Prelogar: Well, let me just say that the district court made a factual finding of no racial balancing.

But, if you think the district court was wrong about that and this is clearly erroneous, then that is clearly impermissible and -- and the Court should send it back. That would provide a basis to reverse on clear error, and we are not here to suggest that racial balancing is okay under this Court's precedents.

Grutter doesn't countenance it and the Court could make that clear.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: I appreciate your statement about Brown.

I want to ask a question.

Justice Thomas's opinion in Grutter said: "I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years." And taking that statement, it would seem that extending it beyond 25 years would itself be overruling Grutter.

And I just want you to have a chance to respond. Is that an -- not an accurate characterization of the Court's holding in your view, or -- or what is your response to that description of what the Court did? A variation on questions you've had before, but I wanted to give you an opportunity to address that in particular.

Elizabeth B. Prelogar: I do think that that is not how the Court itself understood the language.

The Court made clear in the four paragraphs that we've been discussing that the Court expected that universities would no longer be able to justify race-conscious admissions policies over time, but that was because the Court expected that, due to the rate of change in society, they would be able to achieve the benefits of student body diversity without taking race into account. And so I don't think that it's tenable to read the majority opinion in that case as having determined that there was a -- a 25-year clock that would be inflexible.

Instead, it was an expectation about how -- what changes we would see in society.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett? Thank you, General. Rebuttal, Mr. Norris?

Cameron T. Norris: Thank you, Mr. Chief Justice.

Just a few points. First, I think what's lost in the United States' argument and Harvard's argument and in Grutter itself is that racial classifications themselves have harms.

They stigmatize their intended beneficiaries, they increase racial consciousness, which delays the day in which we can move to true racial neutrality, and they cause resentment by treating people differently based on something they can't change that's cosmetic and that's irrelevant to their ability to get educational opportunities. The Court said that in Adarand.

It said it in Shaw.

It said it in Croson.

Harvard doesn't challenge any of those precedents. Secondly, race-neutral alternatives. There were a few pleas for a remand that I heard from my friends, but it's hard to take those seriously when Harvard thumbed its nose at Grutter for 14 years to not consider race-neutral alternatives one time until three years after we filed a lawsuit against it. I understand Mr. Waxman to say he'll no longer defend his legacy preferences, but now what -- what -- what's at stake in terms of race-neutral alternatives are a decline, a slight decline in profile ratings, which Mr. Waxman said are not that important to the admissions process when he talked about Asian Americans, a 3 percentage point decline in people who want to major in the humanities. Students change majors like they change socks.

I mean, speaking from experience, there will be people who think that they're going to major in the hard sciences and then find themselves majoring in the humanities. That's not the stuff of strict scrutiny. Then we have the 4 percentage point decline in black admissions.

Our expert testified without contradiction that that is an absolute floor, that Harvard could get that number almost to parity if it considered wealth instead of income. And Harvard already sacrifices on all of these metrics in order to meet its racial goals.

It should do the same for racial equality. This Court made schools close to comply with Brown, as it should have.

Harvard should have to sacrifice for the same reasons. Lastly, Harvard thankfully does say it is ashamed of its history of Jewish discrimination.

I hope someday it says the same about how it's treating Asians. It is undisputed that Harvard -- there's a statistically significant relationship between being Asian and getting a low personal rating, which is supposed to measure things like confidence, likability, and kindness. Harvard's witnesses consistently testified that Asians don't deserve lower personal ratings in their experience.

Harvard didn't submit a model of the personal rating itself, which means I think they probably did study it and realized they couldn't get rid of the disparity. In the model, when you take the personal rating out of an admissions model, it shows a statistically significant disparity against Asian Americans in admissions decisions. Now the district court said I believe Harvard that it doesn't discriminate, but we don't typically let people satisfy strict scrutiny with just their testimony.

Mr. Waxman said it's attributable -- attributable to unobservables in the model, but "unobservables" is code for "Asians really deserve it," and that's simply not true.

That was not ever supported by any evidence in the record. And we keep saying Asians.

These are not Asians.

They're not from Asia.

These are people who are Americans.

They were born in Texas, California, Ohio, Tennessee.

They should not be the victims. They were born in 2005, the people who are applying to college now.

They should not be the victims of Harvard's racial experimentation. Thank you.

John G. Roberts, Jr.: Thank you to all counsel in both cases.

Case is submitted.