The Daily - The Supreme Court Ends Affirmative Action

Episode Date: June 30, 2023

On Thursday, the Supreme Court overturned decades of precedent by striking down affirmative action and declaring that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful.Adam Liptak, who covers the United States Supreme Court for The New York Times, explains the ruling, and what it means for American society.Guest: Adam Liptak, who covers the court for The New York Times.Background reading: The Supreme Court’s vote to reject affirmative action programs was 6 to 3, with the liberal justices in dissent.In 2016, in its last major case on affirmative action in higher education, the Supreme Court upheld an aspect of an idiosyncratic admissions program at the University of Texas at Austin.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Katrin Benhold, and this is The Daily. The Supreme Court on Thursday overturned decades of precedent by striking down affirmative action. Colleges and universities in America will no longer be able to use race as a factor in the admissions process. will no longer be able to use race as a factor in the admissions process. Today, our colleague Adam Liptak on that ruling and what it means for American society. It's Friday, June 30th. Adam, it's been another blockbuster term for the Supreme Court. This decision today is one of the biggest in years.

Tell us about the ruling. The Supreme Court rejected affirmative action in higher education. Or more precisely, it said that race-conscious admissions programs were unlawful. And the court acted, as we've seen many times, in a classic 6-3 divide. The six Republican appointees in the majority, the three Democratic appointees in dissent, an enormous decision both in its scope and even in its physical manifestation. They wrote more than 200 pages, six different justices wrote opinions. And this is a major rejection of decades of important precedents. At the same time, the court did leave open some ability, sometimes,

some ability, sometimes, for college and university admissions personnel to take account of race, at least in admissions essays. Remind me of the details of the case. It was brought by a group called Students for Fair Admissions, which says it represents students who were disadvantaged by the admissions programs at Harvard and the University of North Carolina. And in particular at Harvard, they made the case that Asian American students were subject to negative treatment by the admissions programs at that elite institution. And the case is essentially charged that affirmative action was discriminatory and went after it on the grounds that it violated the Equal Protection Clause of the Constitution. So this is a big deal, undoing decades of precedent.

Can you remind us, Adam, of the legal history behind all of this? Affirmative action in higher education has been justified since 1978 on what may surprise people on a ground of justification that's maybe not the most obvious one. The court has said throughout and in the intervening decades that the point of affirmative action is not to repair the injustices that blacks and other minorities have suffered in our nation's history through slavery, Jim Crow, and systemic racism. That's not the justification for it. The court has said that affirmative action is justified by educational diversity, by the idea that students learn better from each other if they're brought together with other students of diverse backgrounds, including racially diverse backgrounds. But it used to be kind of righting past wrongs, right?

There was a time when originally affirmative action was being justified on those grounds. When it was originally implemented, that was the policy justification for it. And what many people in the civil rights era thought was that was what was required. But when the policy was challenged and when it got to the Supreme Court,

the court said the link between current admission practices and historical wrongs was not strong enough. says educational diversity is important enough that it can and should be the sole justification for taking account of race in admissions decisions. So educational diversity as something that sort of benefits all students, not just the minority students, was the legal justification for affirmative action so far. What was the majority's rationale among the justices today to strike that down? Chief Justice John Roberts, writing for six justices, said educational diversity is a commendable goal. But he added that for that to be a sufficient justification for affirmative action, it needs to be subject to demanding

judicial scrutiny to make sure it actually makes sense, to make sure it actually works. And he said that you can't measure when you've achieved educational diversity. And because you can't measure it, it doesn't satisfy that form of judicial scrutiny because you don't know when you've reached it. He added that race-conscious admissions have negative consequences because in boosting some groups, other groups suffer, and also that race-conscious admissions are beset by stereotyping. The idea, he says, is that if educational diversity suggests that all black students have the same views, that's not really fair to individual black students. It's interesting, if he says that,

if he acknowledges explicitly that diversity in education is a commendable goal, what's the difference actually in what colleges can do if they want to achieve this goal. So what we have now with race-conscious admissions being struck down, you can't in a check-the-box fashion give a boost to members of historically disadvantaged minorities. That's no longer acceptable, even if it's one factor among many. But importantly, Chief Justice Roberts says you can take account of race in a different way. In admissions essays say that if a student wants to write on an individualized basis, that she has overcome adversity by confronting racial discrimination, or he seeks to celebrate his background in terms of racial or ethnic ancestry.

Those are acceptable because those are based on individuals, students who have grit or stamina or who have worked to understand their heritage, that's perfectly fine. But it can't be on the basis of checking the box and saying that someone from a given group gets an advantage. So the race box as such, as we know it, will become illegal. That sure seems to be the message of the decision, yes. And it would seem from Chief Justice Roberts' opinion that at least in the

admissions process, having a goal of a certain representation of a certain group or what he would call racial balancing is unlawful. Now, we may still have a good sense of what the student body looks like once admitted, but during the admissions process, taking account of race as such, race qua race, is unlawful. Interesting, but you said that in the admission essays, for example, students can talk about their race and the impact it had on shaping their lives. So as an admission officer, you now won't have the race box, but you can read that essay to kind of decode what race that person is. But are you allowed to take that into account now? Or are you only looking at sort of what qualities might make them a good applicant?

That's a good and subtle question. I think what the Chief Justice would say is if you stop at the point at which you say, wait a second, this person is black, this person is Hispanic, this person is Asian, and not put it into an individualized context, then you're violating the decision. But if what you're doing is trying to get a full sense of the applicant, including by reference to background and context, background and context, that's perfectly acceptable. Even as I say it, it means that there are going to be quite close and hard distinctions in the lives of admissions officers to decide which side of the line you're on. So in some ways, it seems like this new policy might be hard to police because it's a pretty fine distinction, and it sort of requires jumping into the admissions officer's heads.

That's true, and it's probably the case that if admissions offices are dead set on trying to maintain diverse student bodies in the general aggregated sense, that they will have ways to cut corners and maybe even cheat. But they will be monitored by groups hostile to race-conscious admissions and may face litigation if there are close questions. So, one, some number of admissions officers will try to comply with the law because it's the law. Two, others inclined to cut corners might be afraid of litigation. And three, there will be some level of what opponents of affirmative action will call cheating. And does Robert's decision say that you can use other categories

aside from race? Could you, I don't know, use zip codes, income levels as a proxy? As to whether you can use proxies, he says you can't do indirectly what you are not allowed to do directly. Mm-hmm.

But other factors that might well generate racial diversity, like socioeconomic factors or taking the top students in high schools across the state, because high schools are often not evenly distributed demographically, that will give some minorities a better chance, or outreach. Those kinds of indirect proxies are probably still okay. And so this is true now for all universities and other educational institutions in the country? It's true for all public universities, which are subject to the

constitution. It's true for almost all private universities. If you take federal money, you have to abide by a federal civil rights law that is said to reflect the Equal Protection Clause. So it applies to just about every institution of higher education, with one significant exception. Chief Justice Roberts said the court is not addressing whether race-conscious admissions are acceptable in the military academies, saying that they have special concerns, an apparent reference to the fact that the military academies train the leaders of diverse armed forces, and that for reasons of unit cohesion, morale, and so on, you want to have a diverse officer corps leading a diverse fighting force. So it's okay to actively boost diversity in

the military, but not in higher education. What's the constitutional basis for that exception? So the Chief Justice doesn't say it's okay, but only that they're not deciding it. But I guess the constitutional difference, he might say, is what's the compelling interest. And the compelling interest in national security might be sufficient to have a different rule for military academies than you do for Harvard. Okay, so in this opinion, basically, Chief Justice Roberts is laying out pretty far-reaching changes for American society. What do the liberal justices have to say in their dissent? Justice Sonia Sotomayor writes the main dissent. She's joined by Justices Elena Kagan and Katonji Brown Jackson. And Justice Sotomayor, in an unusual move, the first time in years this has happened,

summarizes her dissent from the bench. And she makes several points, but basically she says that the majority is blind to American history, to the reason that we have an equal protection clause, to American history, to the reason that we have an equal protection clause, to the legacy of Brown versus Board of Education, the landmark decision that struck down segregated public schools. She said it's perfectly appropriate to try to ensure that historically disfavored minorities have the opportunity to attend elite institutions and to achieve success in the mainstream of American life. So she says that there is a constitutional promise, the promise of equal protection,

which is being ignored here. Right. She has a different view of equal protection than the Chief Justice does. The Chief Justice, in a shorthand, says the Equal Protection Clause means that the government has to be colorblind. Justice Sotomayor says the Equal Protection Clause is there for a reason. It's there in the wake of the Civil War, fought to do away with slavery and meant to elevate Black Americans in particular into normal American life, is race sensitive, is race conscious, and that it's appropriate for admissions officers to take account of that reality. She's saying that society isn't colorblind,

so college admissions shouldn't be colorblind. Yeah, that's right. So they're basically saying, despite whatever legal rationale Roberts is laying out here, the effect of this is bad, that we live in a racially unequal country, and this will only serve to further entrench racial inequality in America. Well, there's little question that they're right, that at elite institutions, the upshot of this decision will be that the campuses will be less black, less Hispanic, more Asian, more white.

And the decision, there's every reason to think, will reshape the educational experience of countless American students. We'll be right back. So Adam, affirmative action is gone. This is now the law of the land, and the college class entering in the fall of 2024 will reflect this new world. What will that new world look like? Well, we have some idea of what it will look like because over the last few decades, a number of states have implemented bans on affirmative action. And two notable examples are Michigan and California, where state ballot initiatives got rid of affirmative action in California decades ago, in Michigan in 2006.

And the experience has been mixed and a little different. For example, in California's public university system, the overall enrollment numbers for black students dropped after the state's ban was implemented. Over time, they bounced back. But that's after California spent more than $500 million on outreach programs to underserved minority students. Now, the University of California system contains lots and lots of different kinds of schools. lots and lots of different kinds of schools. And at some of the more elite institutions like UC Berkeley, you see continued struggles to maintain student diversity. And you see something similar in Michigan where the flagship university, the University of Michigan in Ann Arbor, has struggled to maintain diversity, particularly for Black students. Now, this is a state which is about 14% Black,

and enrollment at the University of Michigan is just 4%. And that's notwithstanding similar efforts in Michigan, as in California, to pour resources into recruiting, outreach, and so on. So it kind of makes back. But at least in the California example, it seems that there are some signs that when institutions do put their mind to it, they can achieve some diversity even without affirmative action. It's a complicated question, and it also depends a little bit not only on recruiting and outreach, but on whether you use other kinds of means indirectly to achieve what affirmative action achieves directly. That is, whether you look at socioeconomic factors, like trying to get students from all different kinds of high schools and so on. And of course, this all depends on whether a state or university system even agrees that it should be doing this sort of thing in the first place, that racial diversity is a priority for them. Not all states are going to spend hundreds of millions of dollars on outreach

like California. So the way this plays out around the country will be extremely variable. So Adam, are we going to see ripple effects of this into American society outside of college campuses? Well, one thing seems likely is that, as we know, elite higher education is a significant pathway to success in American society. And if the pipeline of highly credentialed minority students contracts, you may see fewer minorities in leadership positions throughout America. So that could have an important ripple effect. There's also a kind of, what to call it, teaching moment on the part of the court, if people are inclined to listen to it, that sends the message that racism is over, you don't have to worry about it, and all kinds of other parts of American society, notably employers, may listen

to that message. So the court, with its ruling in a sense, setting a new social norm and making it acceptable for employers and other institutions to stop worrying about racial diversity. Right. And it's kind of take the foot off the gas on efforts you see in major corporations around diversity, equity and inclusion, which is controversial politically already. inclusion, which is controversial politically already. So if this trend actually does ripple its way into all these corners of American society, what are American people going to say about this? Do we have a sense? You know, it really depends on how you ask the question. Broadly speaking, people are in favor of diversity. People are against quotas. Different polls give you different results. A poll on the New York Times site keyed to these decisions in particular has about 69 to 74 percent of people saying that colleges and universities should not be able to use race as a factor in admissions.

Wow. So if you ask it that way, you have substantial majorities of people saying that, and that's true of 58%, 60% of Democrats. So it's not especially politically polarized. And there are polls which suggest that members of racial minorities are uneasy with some forms of affirmative action. Or another data point is just a couple years ago, there was an effort in California to reinstate affirmative action,

which is about a blue estate, as you're going to find. And it failed, and not by small numbers. I guess another question, Adam, is will people, even though seven in ten Americans are opposed to affirmative action, will they like the impact of this ruling? So I think that requires two levels of speculation that are both of them premature. Just exactly how this shakes out on the ground and how admissions officials react and whether the modes of taking account of race that were left intact by the decision have a major impact or not. And then we'll need to see how people feel about it when whatever comes to pass comes to pass. So we don't know how this will go and what it'll do, but whatever our reaction to that is will tell us a lot about where society is at and where America is on race. That's quite right. American society seems to be at a crossroads on race, coming out of the Black Lives Matter movement and responses to what seemed to many to be deep systemic racism in police reactions

to encounters with young black men, and then followed by a pushback against the 1619 Project, against critical race theory. This is a big, sprawling societal debate, an acrimonious debate. And this new decision will help us all bring into focus what American society means to do to ensure that people who've been subjected to historical wrongs have a fair opportunity to compete in modern society. I guess, in a way, it all depends on what you think the goal of affirmative action was in the first place. Was it to make amends for past wrongs and to try to achieve racial equality?

Or was it something else? Or another way to ask the question is, what did the 14th Amendment, which called for equal protection and was adopted after the Civil War, what did it mean to achieve? Did it mean to achieve colorblindness where the government treats everyone the same? Or was it meant to address the reality that the nation had subjected enslaved people to catastrophic and gruesome abuse, does the nation owe a particular debt to that group of people? And is that what the people who drafted and adopted the 14th Amendment mean to do?

At the same time, I think we all of us hope there comes a day that people don't need a leg up. In 2003, when the court decided its last major affirmative action case, Justice Sandra Day O'Connor said she anticipated that we would need affirmative action 25 years later, which is to say in 2028. The question is, are we there yet? The majority says yes. The dissent strongly says no. Adam, thank you so much.

Thank you. Shortly after the Supreme Court issued its ruling on affirmative action, President Biden condemned the move. Discrimination still exists in America. Today's decision does not change that. It's a simple fact. He said he continued to believe in the need for racial diversity and urged colleges and universities to find other ways to achieve it.

I want to emphasize that we cannot let this decision be the last word. and urged colleges and universities to find other ways to achieve it. One emphasis, we cannot let this decision be the last word. While the court can render a decision, it cannot change what America stands for. America is an idea, an idea unique in the world, an idea of hope and opportunity, of possibilities, of giving everyone a fair shot, of leaving no one behind. We've never fully lived up to it, but we've never walked away from it either. We'll be right back. Here's what else you need to know today.

In France, a police officer who shot and killed a teenage driver earlier this week has been charged with voluntary homicide. The death of 17-year-old Nahal M., a French citizen of North African descent, has spurred violent protests in more than a dozen cities. Protesters have been calling for an end to police brutality in France, burning cars and clashing with police, according to French authorities. About 180 people have been arrested and 170 officers injured. It's unclear whether the officers' detention

would calm the widespread anger against the police, which has been simmering for years in France's poorer urban neighborhoods. And, in the United States, dangerous temperatures are expected across the South. The heat index is forecast to reach as high as 120 degrees in many areas and stay high through the weekend. Today's episode was produced by Rob Zipko, Asta Chaturvedi, and Alexandra Lee Young,

with help from Rochelle Bonja. It was edited by Lexi Diao, Paige Coward, and Lisa Chow. Contains original music by Marion Lozana and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wanderley. That's it for The Daily. I'm Katrin Benholt. See you on Monday. Thank you.