Tangle - The Supreme Court's affirmative action ruling.

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Starting point is 00:01:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place you get views from across the political spectrum, some independent thinking, and a little bit of my take. I am your host, Isaac Saul, and I hope you all had a great Fourth of July weekend. It was nice. I got a few days off, a little break upstate with some family, and a lot has happened since we were here on Thursday. We had three very big Supreme Court case rulings that we are going to cover this week, unless something bigger comes up, which I think is going to be hard to do. And today we are going to start with the affirmative action ruling that came down last week. Before we jump in, though, we're going to start off with some of the quick hits we missed

Starting point is 00:02:03 and then today's quick hits. So some of the news we missed while we were away. First of all, the Supreme Court struck down President Biden's student loan forgiveness plan. The Biden administration said it was pursuing a new plan to wipe out some student loan debt. Number two, the Supreme Court also ruled that a web designer could deny wedding-related services to a same-sex couple if the design conflicts with her religious beliefs. Number three, Yevgeny Progozhin, the head of the Wagner Group that led a brief uprising in Russia,

Starting point is 00:02:42 resurfaced in Belarus and called his revolt, quote, a march of justice. Number four, a mass shooting at an annual block party in Baltimore left two people dead and 28 injured. Separately, a mass shooting in Philadelphia killed at least five people and injured two others. Number five, Jair Bolsonaro, the former president of Brazil, was barred from running for office for eight years after a court found that he abused his power during last year's election. All right, that is it for the quick hits we missed over the weekend, and this brings us to today's quick hits. Number one, thousands of hotel workers in Los Angeles went on strike Saturday demanding a $5 wage hike and improved health care. Number two, the Israeli military deployed hundreds

Starting point is 00:03:25 of soldiers and launched airstrikes in a counterterrorism operation in the West Bank. It's being described as the biggest air attack in the West Bank in nearly 20 years. Number three, in the wake of the Supreme Court's affirmative action ruling, Black and Latino groups have filed a civil rights complaint against Harvard, arguing that its legacy admissions program favors white students. Number four, Tim Shih, a businessman and former Navy SEAL, announced he was running as a Republican for Senate in Montana

Starting point is 00:03:53 against Senator John Tester, the Democrat. Number five, a federal judge has limited the amount of contact the Biden administration can have with social media websites. We're coming on the air with breaking news. The Supreme Court has just issued a pair of opinions and closely watched cases involving affirmative action in college admissions at the University of North Carolina as well as Harvard University and has struck down those policies as unconstitutional. Students for fair admissions, a nonprofit organization, had sued the University of

Starting point is 00:04:36 North Carolina and Harvard. And the question at issue here, can public and private colleges and universities continue to use race as one factor among many in deciding who gets admitted? We begin tonight with the Supreme Court striking down affirmative action and reshaping college admissions. In a 6-3 decision, the justices ruled that Harvard University and the University of North Carolina violated the Constitution by considering race when deciding whether to admit someone to their school. On Thursday, the Supreme Court determined in a 6-3 decision that considering race in university admissions was unconstitutional. The ruling will reshape how the nation's most elite universities attempt to diversify their campuses and also has the potential to impact the makeup of the nation's workforce. A brief bit of history here. In Brown v. Board of Education in 1954, the Supreme Court struck

Starting point is 00:05:32 down racial segregation in public schools, rejecting the idea that race be used to influence educational opportunities. In 1978, in Regents of the University of California v. Bakke, the court struck down a racial quota system in higher education that was created to diversify universities, but left the door open for race-conscious admissions for schools who wanted to pursue diverse student bodies. In 2003, the Supreme Court ruled in Grutter v. Bollinger that the University of Michigan Law School could consider race in its admissions processes as an attempt to create a diverse student body. In that case, Justice Sandra Day O'Connor famously suggested that in 25 years, the use of such preferences may not be necessary,

Starting point is 00:06:15 but there was good reason to use them at the time. Then, last year, two lawsuits related to admissions policies at the University of North Carolina and Harvard landed before the Supreme Court. We covered those oral arguments in a previous edition of the Tango podcast. Both lawsuits were filed in 2014 by a group called Students for Fair Admissions, or SFFA. The lawsuit filed against Harvard alleged the school was violating Title VI of the Civil Rights Act, which bars entities that receive federal funding from racial discrimination. The plaintiffs argued that Asian Americans are less likely to be admitted than similarly qualified white, black, or Hispanic applicants under current Harvard admissions policies. In the second case, the plaintiffs argued that the University of North Carolina was violating the 14th Amendment's Equal Protection Clause by considering race in its admissions

Starting point is 00:07:02 processes when such considerations are not necessary to create a diverse student body. That clause bars racial discrimination by government entities. So, what just happened? Well, in both cases, the plaintiffs prevail. Chief Justice John Roberts wrote an opinion for the majority made up of the six Republican appointed justices, Roberts, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas, Samuel Alito, and Neil Gorsuch. In his opinion, Roberts addressed the two cases simultaneously. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints, Roberts wrote for the majority. We have never permitted admissions programs to work in that way, and we will not do so today. Instead, Roberts argued that the court has allowed race-based admissions to be used within

Starting point is 00:07:54 narrow restrictions, and that Harvard and UNC's programs, which may have been well-intentioned, do not comply with those restrictions. Both programs had goals that were held to be too vague for courts to measure, and the courts asked how they could determine when they had succeeded in sufficiently training future leaders or properly promoting the robust exchange of ideas. While both colleges claim race is never a negative factor, Roberts wrote that college admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter. Roberts also wrote that Harvard and UNC's programs lacked the logical endpoint that was once alluded to by O'Connor in the Grutter ruling.

Starting point is 00:08:34 Both universities conceded in court that their programs did not have a sunset date, while UNC suggested that in the future it could weigh race to an even greater extent than it already had been. In that regard, Roberts did write that colleges can still consider race if an applicant cites it to explain how race impacted their character or life experiences. Applicants must be judged based on their experiences as an individual, not on the basis of their race. All three Democrat-appointed justices, Sonia Sotomayor, Elena Kagan, and Katonji Brown Jackson, dissented. Justice Jackson recused herself from the Harvard case as she was a former member of the Board of Overseers at the school. In their arguments, the three liberal justices made the case that affirmative action is still a necessary system to help right the wrongs of centuries of

Starting point is 00:09:20 racial discrimination at American schools, where non-whites were long denied a mission based solely on their race. Sotomayor, a Princeton and Yale graduate who has called herself the perfect affirmative action baby, argued that society is not and has never been colorblind. The dissenting justices wrote that the decision upended decades of precedent and ignored the context with which the 14th Amendment was passed, arguing that the drafters understood it may be used for programs like affirmative action. Along with leaving the door open for certain considerations of race like the one laid out by Roberts, the majority decision also allowed service academies like West Point or the U.S. Naval Academy to continue to use race-conscious admissions. The Biden administration had joined the case as a friend of the court and argued that military leaders believe it is important to have a diverse officer corps. In a footnote of the ruling,

Starting point is 00:10:09 Roberts wrote that since the service academies did not join the case and have distinct interests, the court did not weigh in on their admissions processes. Polling before and after the decision suggests Americans largely align with the Supreme Court's stance. About 52% approve of the court's ruling on restricting the use of race as a factor in college admissions, according to an ABC-Ipsos poll, while just 32% disagree and 16% say they don't know. Similarly, Pew has found that 50% of Americans disapprove of considering race in admissions at elite universities, while just 33% approve. Today, we're going to write about the reaction to these rulings from the right and the left, and then my take. First, we'll start with what the right is saying.

Starting point is 00:11:03 Many on the right support the decision, arguing that the court has reinforced the idea race should never be used to discriminate. Some suggest that colleges can move to economic-based affirmative action if they want more diverse campuses. Others argue that the dissent in the opinion ignores the law and embraces the idea two wrongs can make a right. The Wall Street Journal editorial board called it one of the court's finest hours. The opinion clears up a half-century of muddled Supreme Court rulings. In 1978 in Bakke, it opened the door to racial preferences in a plurality opinion by Justice Lewis Powell. When the issue inevitably came up again in Greta v. Bollinger in 2003, the court again fudged by declaring the narrow use of race kosher while adding that it should not be necessary in

Starting point is 00:11:45 25 years, the board said. Twenty years later, the two schools told the court they could foresee no end to using race to achieve diversity on campus. The dissent by Justice Sonia Sotomayor goes further in suggesting that the systemic inequities may always require discrimination by race to counter discrimination by race, the board said. But this view turns the plain meaning of the 14th Amendment on its head. It also leaves Justice Sotomayor in the odd position of arguing that, as the chief puts it, the court should tell state actors when they have picked the right races to benefit. He adds that while the court ruled in its landmark Brown v. Board of Education that separate but equal is inherently unequal, Justice Sonia Sotomayor argues that it depends. In the New York Post, Ricky Schlott said colleges

Starting point is 00:12:30 should apply affirmative action based on need. You can pay for SAT prep. You can pay for someone to write a college application essay. You can pay a private school to fill a high school transcript with AP courses, Schlott wrote. The bottom line, money helps when it comes to college admissions. Colleges claim to solve this by implementing race-conscious admissions practices, but they're ignoring a blatantly obvious alternative, wealth-based affirmative action. This is a solution that would help diversify campuses socioeconomically and by proxy, racially, considering America's vast racial wealth disparities. More Harvard students are in the top 1% of family income than the bottom 50%, Schlott said. It's clear that Harvard's student body

Starting point is 00:13:11 isn't remotely reflective of the country at large. Economic-based affirmative action is a system that's proven to work for students of all backgrounds. After California outlawed race-based affirmative action in 1996, UCLA Law School implemented a wealth-conscious admissions process. Analysis of their admissions data revealed that Hispanic students were twice as likely to be accepted and Black students 11 times as likely as they otherwise would have been. In National Review, Rich Lowry criticized the dissent from Justice Jackson. Her opinion hardly qualifies as a legal opinion, but instead reads like a guest essay by anti-racist guru Ibram X. Kendi, Lowry said. In making their case against

Starting point is 00:13:52 racial preferences, the justices in the majority invoked the 14th Amendment and Title VI of the Civil Rights Act of 1964. If Jackson were being consistent, her sneering would extend to the Civil Rights Act, for it, too, favors colorblindness for all. No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Jackson spends a lot of time recounting the country's racial sins and then declares them inescapable today. Even if this simplistic account were true, she fails to establish why racially biased college admissions are legal or warranted, Lowry says. In classic two wrongs make a right

Starting point is 00:14:37 reasoning, she says that UNC's admissions process is fairer than it used to be when it excluded Black people, as if past discrimination justifies current discrimination harming people who had nothing to do with the prior injustices. All right, that is it for what the right is saying, which brings us to what the left is saying. Many on the left criticize the ruling, saying it upends decades of precedent and will harm Black and minority students. Some suggest the majority's legal reasoning is embarrassing and ignores the clear original intent of the 14th Amendment. Others argue that affirmative action was a broken policy and that prior legal rulings ultimately doomed it.

Starting point is 00:15:24 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Starting point is 00:15:44 Interior Chinatown is streaming November 19th, only on Disney+. pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca. The New York Times said the court has overturned decades of precedents that upheld race-conscious admissions as consistent with the 14th Amendment. The result of Thursday's decision means the end of a system that provided decades of opportunity for thousands of students who might otherwise have been turned away from some of the nation's biggest colleges and universities, the board wrote.

Starting point is 00:16:43 The effects will be felt nationwide and soon. In states that have already banned affirmative action in higher education, the percentage of Black students has dropped, in some cases dramatically. This is the second time in just over a year the court has overturned long-standing precedent, however imperfectly implemented, to end programs that had expanded the basic rights and freedoms to a large group of Americans who had suffered under a legal system that treated them as second-class citizens. Why now? Nothing has changed in either case. Not public opinion, not the underlying facts, not even the behavior of the two schools targeted in the court's decision, which were both following the guidelines the Supreme Court set out in a previous ruling on affirmative action in 2003,

Starting point is 00:17:25 guidelines the Supreme Court set out in a previous ruling on affirmative action in 2003, the board said. Only one thing has changed, the court's membership. The majority opinion takes a long time to make a simple and simplistic point. There is no real difference between the centuries of racial discrimination against Black people and targeted race-conscious efforts to help Black people. Both are equally bad in this view. In The Nation, Ellie Mistal said mediocre whites can now rest easier. The 14th Amendment was, of course, written explicitly to revoke the racism practiced by whites against Blacks through their slaver's constitution, but Roberts doesn't care about all that, Mistal said. His opinion attempts to capture the 14th Amendment and redeploy it to

Starting point is 00:18:05 justify a white version of colorblindness that just so happens to lock in a status quo that benefits whites. Affirmative action wasn't made vulnerable just by Republican lawyers and activists, but by the soft bigotry of parents whose commitment to integration and equality turns cold the moment their children fail to get into their first choice of college or university. The legal arguments here are embarrassing. The fact-finding district court determined that universities do not intentionally discriminate against AAPI students, and more specifically, that there is no evidence that affirmative action is hurting them. I have written that I think Harvard does discriminate against AAPI applicants, but that discrimination has nothing to do with affirmative action.

Starting point is 00:18:47 In California, which ended its affirmative action policies over 25 years ago, the studies show that without affirmative action, Black enrollment plummets, Latino enrollment plummets, AAPI enrollment goes up a little bit, and whites flood the remaining opportunities. In The New Yorker, J. Caspian King criticized affirmative action in the way Asian Americans have been left out of the conversation. The evidence the plaintiffs had amassed that Harvard in particular discriminated against Asian applicants through a bizarre and unacceptable personal rating system is overwhelming, he wrote.

Starting point is 00:19:19 In 1978, the court determined that race could be considered to produce a diverse student body, but not as a form of reparations to reduce the harms of slavery and injustice. Affirmative action was doomed from that moment forward because it had been stripped of its moral force. It's one thing to argue that slavery, lynchings, Jim Crow laws, mass incarceration, and centuries of theft demand an educational system that factors in the effects of those atrocities. If a Black student descended from slaves who grew up in poverty got a bump on his application when compared with a rich private school kid from the suburbs, so be it, King wrote. But that is not, in fact, how affirmative action usually plays out at elite schools.

Starting point is 00:19:59 Most reporting on the subject, including my own as well as a story in the Harvard Crimson, shows that descendants of slaves are relatively underrepresented among Black students at Harvard compared with students from upwardly mobile Black immigrant families. It is easy, and perhaps virtuous, to defend the reparative version of affirmative action. It is harder to defend the system as it has actually been used. All right, that is it for the left and the right are saying, which brings us to my take. So I have long been torn on affirmative action because the concept of it makes perfect sense, while the execution of it seems totally broken. Like I wrote when we covered oral arguments in this case, I think these three things are all

Starting point is 00:20:52 true. One, affirmative action was necessary and totally just when it was implemented. Two, the trap of affirmative action was always obvious and the problems presented in this case are unavoidable when you allow race to be considered. Three, the existence or non-existence of affirmative action is not going to solve the biggest problems facing our country's secondary education system. The reasons for number one should be obvious. American universities spent centuries prohibiting non-whites from attending. This is not ancient history. Most senior citizens in America today were alive in an era when Black people, Asians, Hispanics, and other non-whites were prohibited from going to many colleges or prohibited from attending school with whites. Obviously, if you

Starting point is 00:21:34 do this for decades, undoing that policy is not simply going to level the playing field. Most of us now know the famous Lyndon Johnson quote, you do not take a person who for years has been hobbled by chains and liberate him, bringing up to the starting line of a race and then say you are free to compete with all the others and still just to believe that you have been completely fair. justly believe that you have been completely fair. Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. At the same time, it has been 20 years since Sandra Day O'Connor wrote about the need to sunset affirmative action. Her vision then was prescient. As the goals of affirmative action have been achieved, diversifying college campuses and the workforce, closing the racial wealth gap and creating more equal opportunities, it would begin to disadvantage students of lower socioeconomic status who are not minorities. students of lower socioeconomic status who were not minorities. Or, in the case of Harvard, it would begin to disadvantage certain minorities who were overachieving academically.

Starting point is 00:22:55 The examples that came out in this case also exposed other problems. For instance, when you solely emphasize race, you may end up opening doors for wealthy Black immigrants while boxing out actual descendants of slavery or oppression in the United States, the exact population the program was designed to benefit. I think it should be clear that colleges have an interest in diversifying their campuses to represent the world their students will be graduating into. But to me, that diversity should not primarily rest on race. When considering ways to balance the scales in today's America, elite universities would be wiser to primarily consider economic and wealth diversity among its student body, as Ricky Schlott argued under what the right is saying. And as King laid out under what the left is saying, it's also become clear that affirmative action is mostly benefiting rich kids, not struggling descendants of slavery and

Starting point is 00:23:39 Jim Crow. Not only is it no longer achieving its stated purpose, the disadvantages for Asian Americans are now too big to ignore, and the court has plenty of legal ground to stand on in ruling that affirmative action is unconstitutional. While racial inequality persists, a policy of affirmative action based on socioeconomic status would organically offer more opportunities to students of color, but also prevent the obvious and inverted dynamic we have now. Wealthy students who can afford SAT tutors and paid services to get into these schools have a gigantic advantage over students who can't. Secondary to these considerations could be things like immigration status, language use, political diversity, and race in the context Roberts offered. At the same time, these elite universities should consider

Starting point is 00:24:25 abandoning practices like legacy admissions, which, as Justice Jackson has argued, are effectively a kind of race-based admissions. After all, if you are prioritizing the parents and grandparents of applicants who went to a school in an era when non-whites weren't allowed in, then you are de facto discriminating based on race, which is exactly what some students are now arguing. These changes to me would be the way to create a superior learning environment on college campuses. I also think it's important to remember that this is not a ruling that will impact many or even most students. As Noah Smith has put it, far too much of our discourse about education focuses on a tiny handful of elite private universities in the Northeast. Just 6% of college students attend a university with an acceptance

Starting point is 00:25:11 rate of 25% or less. This ruling is not going to impact the vast majority of students of color who absolutely need and deserve more education opportunities, but we're not likely to get them from these elite schools. There simply aren't enough seats in those classrooms. So, while I think ending affirmative action as it exists is pretty defensible, the legal arguments here are more difficult to parse. As the New York Times editorial board explained in its piece, the initial Supreme Court ruling on affirmative action focused on the right for colleges to pursue diverse campuses rather than a form of reparations to solve for slavery and Jim Crow. It was a compromise ruling that set up all these future challenges and ultimately led to affirmative action's demise. I do believe the drafters of

Starting point is 00:25:56 the 14th Amendment understood that policies like affirmative action, racial discrimination for good were going to be implemented. Indeed, some were still living when affirmative action was introduced, and we have no indication to upset their sensibilities of the amendment's goal. Any way you slice it, the key now is finding a way to make this a positive for the country as a whole. Elite universities have an obvious interest in diversifying their campuses. Classroom discussions on race will be much richer and more informative if they aren't held in a room full of white people, just like discussions about politics would be more enriching if the room isn't full of only liberals or ones about immigration included actual immigrants.

Starting point is 00:26:35 This is the obvious benefit of diversity. Colleges and universities can still achieve this by seeking out a diverse student body through non-racial means, like affirmative action based on socioeconomic status. There's no way around affirmative action's inherent issues, and with it effectively being ended, there is now an opportunity to improve our college campuses. Schools shouldn't simply stop considering race as a response to this ruling. They should expand their idea of what makes a campus diverse. And our most elite schools should do some soul-searching on their own overwhelmingly rich and legacy-based student bodies. All right, that is it for my take. If you're interested in a video version of this ruling

Starting point is 00:27:22 that I did right after it came out with slightly different content, you can go check out our YouTube channel. That's youtube.com and Tangle News. If you search it, you'll find the video. Give it a watch, subscribe, and be sure to keep an eye on that YouTube channel for some fresh new content that sometimes, like today, comes out before the podcast or the newsletter. All right, we're going to be skipping our reader question today because this main topic took up quite a bit of space, which brings us to our under the radar section. Nearly two months since Title 42 ended, the number of migrants crossing into the U.S. has sharply declined and remained relatively low. The pandemic-era health order allowed the government to quickly expel migrants, and its end left many immigration experts

Starting point is 00:28:10 predicting chaos on the border. Instead, illegal crossings are down to about 3,360 per day. In March, they were 7,100 per day, a historic high. Determining factors and cause increases and decreases in migration is not an exact science, but a few theories exist. Migrants might be in wait-and-see mode, waiting to understand the new policies. New opportunities to immigrate legally might be reducing illegal immigration. Or, perhaps, increased enforcement in Mexico and Guatemala could be helping. Still, officials warn they don't believe the lull will last. The New York Times has the story, and there's a link to it in today's be helping. Still, officials warn they don't believe the law will last. The New York Times has the story, and there's a link to it in today's episode description.

Starting point is 00:28:58 All right, next up is our numbers section. The percentage of Black adults in the United States who approve of selective colleges considering race and ethnicity in admissions decisions is 47%. The percentage of Black adults who disapprove is 29%. The percentage of Asian adults who approve is 37%, while the percentage of Asian adults who disapprove is 52%. The percentage of white adults in the U.S. who approve is 29%, while the percentage of white adults in the U.S. who disapprove is 57%. Of all adults in the United States, the percentage who are unsure about considering race in admissions is 16%. All right, and last but not least, our Have a Nice Day story. Sea otter populations on North America's West Coast have rebounded,

Starting point is 00:29:41 and that is good news for a zero-cost method to address climate change. For years, otters have been hunted to near extinction in pursuit of their warm and soft fur. However, according to the Monterey Bay Aquarium, there are now over 100,000 otters on the Pacific Coast again. That's good news for kelp and seagrass, which have been decimated by sea urchins, which in turn have thrived in the absence of the otters who love to hunt and eat them. A healthy kelp forest can absorb enough carbon to cancel out the equivalent of canceling the emissions

Starting point is 00:30:12 from 5 million automobiles. Reasons to be cheerful has the story, and there's a link in today's episode description. All right, everybody, that is it for today's podcast. As I said before, if you want to check out our YouTube channel, please go do that. We've got a video version of this affirmative action ruling and always fresh content coming out there sometimes before the podcast or the newsletter. Also, if you want to support this work, don't forget you can go to readtangle.com and become

Starting point is 00:30:41 a Tangle member. We'll be right back here same time tomorrow. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited by John Long. Our script is edited by Ari Weitzman, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bokova, who's also our social media manager. designed by Magdalena Bukova, who's also our social media manager. Music for the podcast was produced by Diet75. For more on Tangle, please go to readtangle.com and check out our website.

Starting point is 00:31:45 We'll see you next time. Lee becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting Thank you.

Tangle - The Supreme Court's affirmative action ruling.

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