The Daily - Why the Supreme Court Might End Affirmative Action

Episode Date: November 3, 2022

For decades, many universities have used race as a factor when deciding which students to admit. In the past, the Supreme Court has backed that practice, called affirmative action, in the interest of creating a diverse student body.This week, however, the majority-conservative court is considering a case that may change affirmative action forever.Guest: Adam Liptak, a correspondent covering the Supreme Court for The New York Times.Background reading: The Supreme Court appears ready to rule that race-conscious admissions programs at Harvard and the University of North Carolina were unlawful.In the clash over affirmative action, both sides invoke Brown v. Board of Education, the unanimous 1954 decision that said the Constitution prohibits racial segregation in public schools.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 Sabrina Tavernisi, and this is The Daily. For decades, many universities have used race as a factor when deciding which students to admit. But a landmark case argued this week in front of the Supreme Court may be about to change that. Today, I talk to my colleague Adam Liptak about what may well be the end of affirmative action. It's Thursday, November 3rd. So Adam, this is another really big term for the Supreme Court. big term for the Supreme Court. And when I talked to you a few weeks ago, you said that the biggest case of this term was one about affirmative action, and that it would be a blockbuster. Yeah, just as the decision in June overturning the constitutional right to abortion was huge,

a case argued on Monday on challenges to race-conscious admissions programs in higher education may well reshape American life. Adam, give me the basics of the case. What's it about? Well, we actually have two cases, one against the University of North Carolina and one against Harvard. But they share basic themes, and they're both brought by the same plaintiff, which is an organization called Students for Fair Admissions, run by a conservative legal activist, Edward Bloom, who's brought a number of race and voting rights cases to the Supreme Court,

and he's had substantial success there. They both say that affirmative action in higher education, meaning taking account of race for any reason, is unlawful. And in the case of Harvard, there's a distinctive element. They say that Harvard has discriminated against Asian students in particular. Okay, so what do we need to know about how the court has ruled on this in the past? What do we need to know about how the court has ruled on this in the past? The court's jurisprudence in this area is based on the Equal Protection Clause of the 14th Amendment. And in many contexts, that clause of the 14th Amendment means that you can't discriminate based on race one way or the other, for good purpose or bad.

But not in every context. And for more than 40 years, the Supreme Court says there's an exception for that, for educational diversity, that the interest in having varied student bodies who can learn from each other overcomes the usual legal rule that you can't draw distinctions based on race. So that was first established in a 1978 case called Bakke, and then it was officially endorsed by a majority of the court in a 2003 case called Grutter. And in making this exception to the general rule, the court said you can take account of race so long as it's one factor among many in considering the whole student. Holistic admissions. It can't be a

quota. It can't be the only factor. And they said it wasn't about righting past historical wrongs, but instead it was about making for a more diverse college campus at which all students of all backgrounds can learn better from each other. Interesting. So according to that precedent, affirmative action isn't actually about righting historical wrongs. It's about life on a college campus. Basically, this argument that a more mixed student body adds up to a better learning environment. Yeah, and that's counterintuitive to a lot of people because holistic admissions are by design sort of opaque and gauzy rather than the tougher question of what does the United States owe to the descendants of people whom it enslaved and

brutalized. Okay, so that leads us to oral arguments in what happened at the court this week, Adam. We will hear argument first this morning, case 21707, students for fair admissions versus the University of North Carolina. Mr. Strawbridge. Mr. Chief Justice, and may it please the court. Well, it starts with a lawyer for students for fair admissions, Patrick Strawbridge, standing up and making the basic case. Racial classifications are wrong. That principle was enshrined in our law at great cost following the Civil War. The court has broadly enforced the Constitution's prohibition on the use of racial classifications.

So Adam, what exactly is Strawbridge saying here? I really think he's making two points. One, he's making his fundamental argument that the 14th Amendment's Equal Protection Clause forbids racial classifications for any reason. Grutter is grievously wrong. He has viewed that the educational benefits of diversity justify racial classifications for any reason. Grutter is grievously wrong. His view that the educational benefits of diversity justify racial classifications contradicts the 14th Amendment's

guarantee of equal treatment. It relied upon stereotypical assumptions that race is necessarily a proxy for one's viewpoint. The second and more subtle point he's making is that the rationale the court has developed about educational diversity has embedded in it, he says, a stereotype that people of given backgrounds are likely to hold given viewpoints. The assumption that race necessarily informs something about anyone's qualifications is antithetical to this court's precedence and to our Constitution. about anyone's qualifications is antithetical to this court's precedence and to our Constitution. So for those two reasons, he thinks Grutter should be overruled. And Adam, how are the justices responding to this argument Strawbridge is making? They divide along predictable lines. And the three liberals put up a spirited defense of the importance of educational diversity and of being realistic about the role race plays in American society. I want to break down what you're talking about.

Sometimes race does correlate to some experiences and not others. Justice Sotomayor, for instance, takes issue with Strawbridge's statement that race doesn't tell us anything about viewpoint. She said race often does correlate to some experiences. If you're Black, you're more likely to be in an under-resourced school. You're more likely to be taught by teachers who are not as qualified as others.

You're more likely to be viewed as having less academic potential. So she's saying basically race is important context. Like it can correlate to a bunch of really important pieces of information about a person that shows you the full picture. That's what she's saying. And Justice Sotomayor has proudly said that she is a product of affirmative action, that her test scores were not comparable to those of white students when she got into Princeton and then Yale Law School. But she excelled at those institutions. She said she came in through a side door. And in this argument, she plainly wanted to keep that side door open. Interesting. And what do other liberal justices argue, Adam?

How are they taking into account race independent of the rest of the information in a holistic review process? Justice Katonji Brown Jackson, the newest member of the rest of the information in a holistic review process. Justice Katonji Brown-Jackson, the newest member of the court and the only Black woman on the court, said, we're talking about holistic review here. You keep saying we object to the use of race standing alone. But as I read the record and understand their process, it's never standing alone. That it's in the context of all of the other factors. We're talking about race as one factor among many. There are 40 factors about all sorts of things that the admissions office is looking at, and you haven't demonstrated or shown one situation in which all they look at is race

and take from that stereotypes and other things. So they're looking, she says, at the full person and all kinds of characteristics. And what was the response to this? Well, the lawyer says that race is not like any other factor in admissions. But our point is that all those other characteristics are not barred by the Constitution and the use of race as a classification is barred by the Constitution. But it has to be. The Constitution forbids the consideration of race. And while you can have a holistic admissions process that takes account of where someone is from, whether they're good at playing a musical instrument, whether they're a fine athlete. The Constitution, he says, forbids using race as even a factor in the admissions process.

Right, well, that gets us back to this question of what universities can do. Then Justice Elena Kagan brings it around and makes what is probably the most fundamental and practical point. I guess what I'm saying is your brief, and this is very explicit in your brief, is like it just doesn't matter if our institutions look like America. And I guess what I'm asking you is, doesn't it?

I mean, doesn't it? These are the... That without race-conscious admissions, the numbers of Black and Hispanic students in particular would drop significantly, and that would have a real impact on society. Universities are the pipeline to that leadership. Now, if universities are not racially diverse, and your rule suggests that it doesn't matter, well, then all of those institutions are not going to be racially diverse either.

And that unless we have broad representation of all kinds of groups, we're going to be missing people in the pipelines to leadership in society, whether that's the military or business or law. And I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as a people in all our variety. And if you restrict the kinds of people who have access to that, it diminishes the nation, she says. And Kagan is basically asking, doesn't it matter whether our institutions are diverse? Right. Kagan's saying without race-conscious admissions,

our schools and therefore our broader institutions are going to be less diverse, and the number of minority students will drop. Like, you know, isn't that important? students will drop? Like, you know, isn't that important? Yeah, the term diversity came up more than 200 times over five hours of arguments. And remember, the liberals have to argue on those grounds because of the precedents in this area. But they're also saying America is diverse, it's essential to who we are, and our higher educational institutions should reflect that. But the court's conservatives take a completely different view about whether diversity is an adequate justification for race-conscious admissions programs. And their questions, as the day went on, came after diversity very hard.

We'll be right back. So, Adam, you were just telling me that the conservative justices were really focused on this idea of diversity and questioning it. How did you see that play out in the arguments? Well, it happened almost as soon as the lawyer for the University of North Carolina, Ryan Park, made the standard pitch for diversity. Diversity is our nation's greatest source of strength. We live in a large and sometimes unwieldy democracy. And for that democracy to flourish, people of all different backgrounds and perspectives have to learn to live together and unite in common purpose. And he's barely done sketching out that account of diversity.

I welcome the court's questions. Mr. Park, I've heard the word diversity quite a few times, and I don't have a clue what it means. When Justice Clarence Thomas, who is quite hostile to affirmative action, asks, what does diversity mean? I don't have a clue what it means, he says. It seems to mean everything for everyone. And Thomas points out to Harvard's lawyer that Harvard may be racially diverse, but as they argue that you're over 80% wealthy students, that that's not diverse. And 30% or so of a class is made up of ALDC students. A majority of its students are quite wealthy. And significant numbers are what are called ALDC students, which is an agglomeration of athletes, legacies, meaning children of alumni, and people on special lists. So Thomas is wondering, is this university actually diverse

across all dimensions, or is it unduly focused on race? You're seeking educational diversity, but my understanding, correct me if I'm wrong, is that you don't ask about religion. Then Justice Kavanaugh asked whether the university cares about religious diversity. And why the disparate treatment of religion and race when evangelical Christians, Catholics, Muslims add to the educational diversity and why... And the lawyer for Harvard says, yes, it does, and that many religions are represented. How can it track it if it doesn't ask?

Oh, how can it track it? Okay, Harvard is not tracking it in the admissions process other than... But he also said that unlike race, where students are asked to disclose racial categories, the university doesn't ask about religion. So the conservatives are really putting their finger on the weak point here, right? This whole idea of diversity, of course,

is the legal standard, but it's murky, it sounds like. Like, what counts as diversity? Why not religion? Why not class? And how come those categories are treated differently from race? Right. And Justice Samuel Alito, sort of echoing Justice Thomas, who doesn't know what diversity means, Justice Alito says he doesn't know what underrepresented minority means. When can a student honestly claim to fall within one of these groups? And he uses kind of a thought experiment.

So let's say the student has one grandparent who falls within that class. Can the student claim to be a member of an underrepresented minority? Yes, we rely on self-reporting. One great-grandparent. If that person believes that that is the accurate expression of their identity, I don't think there would be any problem. One great-great-grandparent. You're going to make me continue to go on? Well, what if one grandparent, what if one great-grandparent was a member of a racial minority?

Would the university give students credit for that in terms of a plus factor for racial diversity? And the answer essentially was that students are allowed to self-report and to identify as they wish. Interesting. So bottom line for the conservatives, even within the category of race itself, it's hard to define. It's hard to measure. It's mushy, this diversity thing. Right. Suppose you assemble the student body in which the various racial groups coincide almost exactly to the percentage of those racial groups in the general population, would you say, okay, now we've done it, we've achieved adversity?

No, Your Honor, and I don't think... And several justices then start to bring up the point that if you can't define and quantify and measure diversity, how do you know if you've ever really achieved it? How do you know if you've ever really achieved it? How do you know when you're done? I mean, Grutter also says all governmental use of race must have a logical endpoint, reasonable durational limits, sunset provisions, and race conscience admissions policies. The Grutter decision in 2003 set a kind of endpoint. Justice Sandra Day O'Connor, At a kind of end point, Justice Sandra Day O'Connor, writing for the majority, said it's 25 years after Bakke in 1978. We're now in 2003.

We expect that in another 25 years, we'll no longer need to take account of race in university and college admissions. That this is a necessary evil to take account of race. And it's something that we expect society will be done with. Grutter doesn't say this is great. We embrace this. Grutter says this is dangerous and it has to have an endpoint. And I hear you. So it sounds like in 2003, when O'Connor wrote that majority opinion, she built in this

assumption that it wouldn't be forever, that race wouldn't always be an element of this holistic consideration. Right. She had a hopeful attitude about the progress of society, that over time, things would take care of themselves, and the aftershocks of historical wrongs would dissipate, that the day will come when society is equal enough, and that you wouldn't need to take account of race in order to achieve diverse student bodies. We don't seem to be there yet as an empirical matter, but the conservatives were definitely thinking, what is the endpoint?

How do we get ourselves out of this stuff? And might we not, in fact, want to shut down this kind of racial preference now? And Adam, what did the university's lawyers say in response to the conservatives making this argument? They kind of struggled. But when is the end point? I meant to respond to Justice Alito, meaning that we do not need to reach and because it's hard to know when you've gotten there, they were not willing to embrace any particular endpoints.

So it sounds like conservatives are all pretty unified in this whole idea of race conscious admissions, as they're arguing, was legally built on sand. Yes, right. Thank you to all counsel in both cases. Cases submitted. So Adam, where does all of this leave us? I mean, what did the oral arguments at the end of the day tell us about what the ruling might be? So my distinct impression was that the court's conservative majority

was prepared to do away with race-conscious admissions programs, at least where they take account of race directly. So the universities are likely to lose. And one question will be what tools they will be left with to achieve racial diversity. with to achieve racial diversity? If the court says they can't take account of race directly, will they still be allowed to take account of race indirectly through proxies like looking at socioeconomic diversity by outreach, by allowing essays in which students discuss overcoming racial discrimination by top 10 programs that focus on students who graduate at the top of their high schools. So admissions officers may still have some tools left to try to make their campuses look like the communities they serve, to make their campuses look like the communities they serve.

But affirmative action in its current form is likely to be struck down. Which is a huge societal change, right? Yeah, and it goes far beyond the college campus. Not that that's a small thing, but the legal logic of a decision doing away with affirmative action in higher education could easily have an impact in other parts of society, in employment, in the military, and other areas. Adam, it strikes me that this whole idea of affirmative action for a time was supposed to make access to education more fair, right? That was the purpose. And now it seems like the Supreme Court may decide that affirmative action actually does the opposite, makes access to education less fair. I'm wondering how you think about that.

Well, it comes back to how you interpret the Equal Protection Clause in the 14th Amendment. The 14th Amendment was adopted in a historical context. It was adopted in response and in the wake of the Civil War. And its larger purpose was to bring into the American mainstream formerly enslaved people who had suffered terrible mistreatment by the nation. And so you can think of the 14th Amendment as requiring colorblindness and not taking race into consideration at all. Or you can think about it as being sensitive to contemporary reality and historical practices. So it's a face-off between two understandings of equal protection, and the Supreme Court's about to pick sides. And from the questioning at the arguments on Monday,

it seems clear which side the court's conservative majority is going to pick. Adam, thank you. Thank you, Sabrina. We'll be right back. Here's what else you should know today. The Federal Reserve raised interest rates by three-quarters of a point on Wednesday in a continuing effort to rein in rapid inflation. It has been the federal government's fastest campaign to cool the economy since the 1980s. And in a potential signal that the Fed would eventually ease up,

its policymakers hinted on Wednesday that they might slow rate increases soon. And, It's the sentence of the court as follows. Count one of the indictment, the murder in the first degree of Luke Hoyer. The court imposes a sentence of life in prison without the possibility of parole. Parkland school shooter Nicholas Cruz

formally received a sentence of life without parole at the end of a long trial in which families of his 17 slain victims testified against him. In mid-October, a jury voted 9-3 to sentence him to death. But the law in Florida, where he was tried, requires unanimity for that sentence to be imposed. Finally, the Ethiopian government and forces in the northern Tigray region signed an agreement to stop the fighting in a brutal civil war that has left hundreds of thousands dead and more than 2 million people displaced. The war began on November 3, 2020,

when Prime Minister Abiy Ahmed announced what he called a, quote, law-and-order operation against Tigrayan political leaders who had defied his authority. Today's episode was produced by Stella Tan, Sydney Harper, and Diana Nguyen. It was edited by John Ketchum and Michael Benoit, contains original music by Chelsea Daniel and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.