Carol Ashley, lead counsel of the team that wrote the American Association for Access, Equity, and Diversity’s amicus brief
The two cases, Students for Fair Admissions (SFFA) vs. University of North Carolina (UNC) and SFFA vs. Harvard, were brought by a group led by a conservative activist on behalf of students who believe that they were unfairly denied admission to the undergraduate programs at those schools. UNC is accused of violating the Civil Rights Act of 1964 and the 14th Amendment by using race as too strong of a factor in admissions decisions and by ignoring race-neutral alternatives. Harvard is accused of discriminating against Asian-Americans by giving applicants lower personal ratings than those of students from other races, thereby maintaining a soft quota.
Justices from the six-person conservative majority expressed deep skepticism about race-based affirmative action. Justice Clarence Thomas asked multiple times for lawyers on both sides to define “diversity” and cast doubt on the educational benefits of diversity.
“It’s kind of a purist approach to admissions,” said Paulette Granbury Russell, president of the National Association of Diversity Officers in Higher Education (NADOHE). “I just think that even though the attorneys were arguing that the consideration of race-conscious approaches should be narrowly tailored, and the process by which you consider them has to meet the strictest standard of scrutiny by the court, there may be a majority that are not convinced of that.”
Also at issue was the question of how long affirmative action measures should last. In her majority opinion in Grutter v. Bollinger, the 2003 case that affirmed that race could be used as one of many factors in admissions, Justice Sandra Day O’Connor wrote of her expectation that, in 25 years, racial preferences would no longer be necessary. 19 years after her opinion, justice and lawyers debated how much force O’Connor’s prediction should have as a deadline, and when affirmative action programs should sunset.
“Why should we think there will even be an endpoint?” said Justice Amy Coney Barrett.
A recurring theme discussed by both sides was the question of whether it is possible to separate a person’s race from their identity as a whole. Lawyers for SFFA suggested that such distinctions were achievable, arguing at one point that it was possible to consider an applicant’s culture without considering their race. 
Peter McDonough, vice president and general counsel, American Council on Education
