If Supreme Court Justice Samuel Alito’s questioning of North Carolina Solicitor General Ryan Park, who is defending the University of North Carolina’s use of affirmative action in their admissions decisions, had been a chess game, I’m pretty sure the jurist would have announced, ‘Checkmate.’
Like a tiger toying with a kitten, Alito very efficiently struck what just may have been a death blow to the university’s destructive “race conscious” admissions policy.
Plaintiffs in the case claim that UNC discriminated against white and Asian-American applicants “by giving preference to black, Hispanic and Native American ones,” The New York Times reported. Citing “longstanding Supreme Court precedents,” Park defended the university’s admission policies. He also argued that it “fostered educational diversity.”
In the video below, Alito first notes that “the word ‘Asian’ does not appear one time in your brief.” He points out the many ways Asian-Americans have been discriminated against throughout U.S. history and asks Park to comment on how his “arguments impact them.”
“Two points,” replies Park. “One is that discrimination against Asian-Americans is wrong. It’s bad. We do not condone it at all.” He argues: “There were no claims developed by Petitioner involving the mistreatment or maltreatment of Asian-American students.”
“But what is your response to the simple argument that college admissions are a zero-sum game?” Alito asks.
Summarizing Park’s reply, Alito states, “So, you’re saying that race, in and of itself, has no effect at the University of North Carolina.”
“Absolutely not your honor – “
Alito cuts him off and springs a trap. “Okay, then you would have no objection to an opinion from this Court saying you may not consider race?”
Park is panic-stricken by Alito’s conclusion, naturally, because he is there to defend the use of race in college admissions decisions. He tries to come up with a cogent argument, but fails miserably. The damage had been done.
After flailing about, Park says, “I do want to make clear that we fully support the limited consideration of race as it has been authorized by this court. …”
Following some back and forth, Park tells Alito, “We certainly believe that race, within the context of an applicant may be considered as a ‘plus factor’ … “
Alito pounces on Park’s comment. He repeats it and than expands upon it, concluding, “And, therefore, those who don’t get the plus factor have what is essentially a negative factor.”
Finally, Alito compares UNC’s policy to giving an applicant of black, Hispanic and Native American descent a five-yard head start, the ‘plus factor,’ over a white or Asian-American applicant in a 100-yard dash.
Park tries unsuccessfully to counter Alito’s analogy. He sees his chances of victory in the case fizzle before his very eyes.
The New York Times Supreme Court reporter Adam Liptak discussed the timeline for the case in a recent article. He said that “in the coming days,” the justices “will cast tentative votes at a private conference.” Typically, he notes, a decision is issued about three months after arguments have been made in a case. But, he writes, “rulings in a term’s biggest cases — and these certainly qualify — tend not to arrive until late June, no matter how early in the term they were argued.”
Given the Court’s conservative majority, many are expecting their ruling will put an end to “explicit” affirmative action, meaning that applicants may no longer have to “check a box” on an application. But Chief Justice John Roberts and Associate Justices Amy Coney Barrett and Brett Kavanaugh expressed support for taking an applicant’s race into consideration via their essays.
NBC News reported that, during his questioning of one of the petitioner’s attorneys, Cameron Norris, Roberts asked if it would be “acceptable” for an admissions officer “to take into consideration what an applicant would say in an essay about having to confront discrimination growing up and how he or she did that?”
Both Coney Barrett and Kavanaugh asked similar questions, according to the report.
So, although affirmative action as we know it may end, there will still be ways for a candidate to make their race known on an application, and for an admissions officer to include race as a factor in their decision.
Either way, don’t expect a ruling in this case anytime soon.
A previous version of this article appeared in The Western Journal.
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