LePage attorney leading anti-affirmative action cases pending in Supreme Court

This week, justices on the U.S. Supreme Court weighed two cases that challenge the lawfulness of affirmative action and ultimately could upend the admissions process many colleges use to try to boost diversity on campus. 

The hearing against the legality of race-conscious policies in college admissions included cases at Harvard University, the nation’s oldest private university, and the University of North Carolina, one of its oldest public universities.

Depending on the scope of the court’s ruling, the outcome of these lawsuits could affect admissions at hundreds of colleges and universities across the country and even potentially affect broader efforts like workplace diversity programs.

The oral arguments, scheduled to last just over two-and-a-half hours, stretched for nearly six hours in one of the most controversial cases before the court this year.

During the hearing, supporters of affirmative action rallied on the steps of the Supreme Court.

Christina Huang, co-lead of UNC for Affirmative Action, called out the notion that higher education should take a colorblind approach to admitting applicants.

“Ignoring race is not being colorblind, it’s putting on rose-tinted glasses to wash out the racial discrimination that has and continues to bar students of color and people of color from equal opportunities,” Huang said.

Trump’s Maine lawyer on the case

The cases were brought by the nonprofit Students for Fair Admissions to argue that consideration of race is discriminatory and violates civil rights laws. 

Patrick Strawbridge via Consovoy McCarthy

The Harvard case argues that Asian American students are less likely to be admitted to Harvard than white, Black or Latino applicants.

The UNC case argues that the university’s consideration of race in its admissions process violates the Constitution and discriminates against white and Asian American applicants by giving preference to Black, Native American or Latino applicants.

Both universities have argued that the use of affirmative action in admissions has helped the institutions provide equitable opportunities for Black, Latino, and other students of color who may have not had the same educational opportunities as their white peers due to systemic racism.   

Arguing on behalf of Students for Fair Admissions, Patrick Strawbridge of North Yarmouth said Grutter v. Bollinger, a landmark 2003 case upholding the legality of affirmative action, was “egregiously wrong.” 

“Racial classifications are necessarily invidious,” argued Strawbridge, a senior partner at Consovoy McCarthy, a boutique law firm with offices in Boston and Arlington, Virginia.

Strawbridge is no stranger to high-profile cases. He previously represented former President Donald Trump and other GOP efforts, including filing a motion to stop the counting of Pennsylvania’s mail-in ballots during the November 2020 election — an action that is now wrapped up in the overall effort by the former president to overturn the results and delegitimize the election process.

In May 2020, Strawbridge also argued before the U.S. Supreme Court on Trump’s behalf in a case where Congress sought to compel the then-President to release his income tax returns.

Strawbridge also represented former Gov. Paul LePage in 2018 when Maine Equal Justice sued the governor’s office over LePage’s refusal to implement Medicaid expansion after the legislation passed as a citizen initiative. LePage retained Strawbridge’s services after then-attorney general, Gov. Janet Mills, declined to have her office’s staff represent LePage in the case.

Conservative justices cast doubt

Members of the court’s conservative wing, who now make up a 6-3 majority of the bench, on Monday questioned if it is legal for universities to consider race and for how long such policies should endure. 

Justice Clarence Thomas, a conservative justice and the only Black man on the Supreme Court, asked each of the lawyers who argued in favor of UNC’s admissions process to explain how racial diversity benefits the educational experience of students.

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

Park referenced studies that found diverse groups of people perform at a higher levels, have less group-think, more sustained disagreement and more efficient decision-making outcomes.

Thomas sounded unmoved: “Well, I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation too.”

Justice Brett Kavanaugh asked how religious diversity is considered in the admissions process and why it has “disparate treatment” from racial consideration. 

Liberals defend ‘pipelines to leadership’

The more liberal justices, who are in the minority, defended the use of race in admissions and argued it would be difficult to achieve diversity without any consideration of race. 

Justice Elena Kagan, the former dean of Harvard Law School, noted the importance of racial diversity on college campuses because they are “pipelines to leadership in our society.”

Justice Ketanji Brown Jackson questioned if a college could consider the breadth of a student’s experience without consideration of race. 

She presented a hypothetical example of a Black student, descended from slaves who were not allowed to attend UNC, who would not be allowed to write about that in his application. But a white student, descended from generations of UNC graduates, would be able to reference the importance of that family connection.

“What I am worried about is … the context of a holistic review process of a university that can take into account and value all of the other background and personal characteristics of applicants, but they can’t value race,” Jackson said in arguments with the lawyer challenging UNC’s policies. 

“What I’m worried about is that it seems to me to have the potential of causing more of an equal protection problem than it is solving,” Jackson added. 

Jackson participated in the debate of the UNC case but not the Harvard case. Jackson, the first Black woman to serve as a Supreme Court justice, is a graduate of Harvard College and Harvard Law School and sat on the Harvard Board of Overseers until last spring.

‘How do you know when you are done?’

Since 1978, the Supreme Court has maintained that colleges and universities may consider race or ethnicity as a “plus factor” in admissions to try to create more diversity on campuses. 

Schools cannot have racial quotas or use race as a sole determining factor. It is one factor among many they may consider in acceptance.

But the victories for affirmative action have been narrow in the last three different Supreme Court decisions, where the justices split 5-4, 5-4 and 4-3 to uphold its constitutionality.

The Supreme Court last ruled on an affirmative action case in 2016, recent history in the timeline of case law.  

Chief Justice John Roberts, Thomas and Justice Samuel Alito were the dissenters in the 2016 decision. Now they have three more conservatives on the bench with them: Kavanaugh, Amy Coney Barrett and Neil Gorsuch.

DOJ predicts broad effects of potential ruling

Gen. Elizabeth Prelogar, solicitor general for the Department of Justice, joined the defendants to argue in favor of current policies. She noted racial diversity is particularly important at the nation’s military schools and academies to help ensure a more diverse officer corps that reflects the diversity of enlisted soldiers. 

But she said the effects of a ruling could be much more broad.

“The 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,” Prelogar said. 

“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.”

Top photo: Demonstrators in front of the U.S. Supreme Court as two cases challenging affirmative action were being argued inside. Oct. 31, 2022. | Ariana Figueroa, States Newsroom.

States Newsroom reporter Ariana Figueroa and Beacon editor Lauren McCauley contributed to this report.

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