The NPR Politics Podcast - Supreme Court Ends Affirmative Action In College Admissions

Episode Date: June 29, 2023

The ruling included two cases. The case concerning the University of North Carolina at Chapel Hill was 6-3 along ideological lines; in the Harvard case, the vote was 6-2, with Justice Ketanji Brown Jackson recusing. The decision reversed decades of precedent upheld over the years by narrow court majorities that included Republican-appointed justices.This episode: White House correspondent Tamara Keith, national political correspondent Mara Liasson, and legal affairs correspondent Nina Totenberg.The podcast is produced by Elena Moore and Casey Morell. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi. Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Nevaeh from Rockville, Maryland. It is currently 5.30 a.m. and I'm getting ready to hop into the freezing cold water for my fifth swim practice of the week. Even though school is out, I'm still sleep deprived, only this time it's by my coach. This podcast was recorded at 11.45 a.m. on Thursday, the 29th of June. Things may have changed by the time you hear this, but I'll still be attempting to tough out this amazing yet terrible sport. Okay, here's the show.

Amazing yet terrible. That sounds like a lot of sports. That about sums it up. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Mara Liason, national political correspondent. And I'm Nina Totenberg. I cover the Supreme Court. This morning, the U.S. Supreme Court said that the affirmative action policies at Harvard and the University of North Carolina are unconstitutional, thus essentially striking

down affirmative action in college admissions. Affirmative action is the policy by which a college takes into consideration an applicant's race, as well as other factors in deciding who to admit. President Biden addressed the decision in a speech from the White House shortly after it was made public. We cannot let this decision be the last word. I want to emphasize, 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. All right, Nina. So tell us about this decision. It was decided by the court's conservative wing.

Yes, it was a six to three decision written by the Chief Justice with a concurrence by Justice Thomas. And it was a very dramatic scene in the courtroom today. It was about 40 minutes of announcements from the bench, which was very dramatic, starting with the Chief Justice. And he said the 13th, 14th, and 15th Amendments were the second founding. That's how they're referred to by judges, because it changed the structure of the court. The 14th Amendment particularly guarantees equal protection of the law. And he said that means, and here he quoted the lone dissenter in the case that upheld segregation for generations, that lone dissenter was Justice John Harlan. And he quoted Justice Harlan as saying that the whole idea of the 14th

Amendment is equality, absolute equality, and to be colorblind when you are conducting business. So wait, let me just get you to spell this out. So what the majority is saying is that affirmative action policies are not colorblind. And because they are not colorblind, they violate the Constitution. That's right. And he pointed to a decision of the court 20 years ago. Remember, for almost a half century, we have been living under a Supreme Court-affirmed regime of affirmative action in higher education for most higher education institutions across this country. But in 2003, Justice O'Connor, writing for the majority, affirmed the idea of affirmative action if it's done holistically and individually.

But she suggested that there really does have to be an endpoint, maybe 25 years, she suggested. And Chief Justice Roberts said that endpoint is now here today. And he set out rules, essentially, for universities to follow that leave very little legal room. He said, as long as we have race being a factor, and we have no way to judge whether it is actually discrimination or not, courts have no way of figuring that out, he said, and the universities are basically saying, trust us, and we don't, he said. And then he set out a very specific kind of rigid, in many ways, way that universities will have to toe the line. Mara, I want to ask you, obviously, the justices are extremely passionate about this.

Do you have a sense of what the political implications here are more broadly? Well, that's a very good question. We don't know how this ruling will affect the 2024 elections the way that the struck down affirmative action, that enrollment at the most elite universities among blacks and Hispanics has dropped precipitously after states outlawed race-conscious admissions. But what we do know is the Democrats are going to have to figure out how to have a conversation, a different kind of political conversation about this. And who better to get them started than Michelle Obama, who released a statement today where she talked about how she was one of the first black students at Princeton. She knew she was a recipient of affirmative action. And she said that students will continue to be granted special consideration for admission. And she started listing some of those special considerations. Parents who've graduated from the same school.

Families who can afford coaches to help them run faster or hit a ball harder. Students that go to high schools with lavish resources for tutors and test prep. She said, we don't usually question if those students belong. We just accept that, quote, money, power, and privilege are perfectly justifiable forms of affirmative action. So I think there's going to have to be a different kind of political conversation around this. And we know that polling is all over the place on this issue. Sometimes majorities say we don't think that people should be led into college because of their race, depending on the way the question is worded.

Other times, majorities support affirmative action. But it's still unclear what the near-term political electoral consequences of this will be. Mara, let's also talk in the primary, believe that there aren't systemic inequalities or that it is no longer a major issue that needs to be dealt with and that instead, you know, there is this colorblind America. Do you have a sense of how this might play out? Yeah, clearly, Republicans see this as a victory. They think that college admissions should be colorblind. I don't know what they think about all the other kinds of advantages that people are given in college admissions, like the ones Michelle Obama listed, legacies, etc.

But the big question for 2024 is, is there a group of voters that this decision makes angry and motivated to come out and vote. Republicans got a victory. Generally, it's the people who are aggrieved that are motivated to come out and vote. Will this energize young people to come out and vote for Democrats? We don't know. But there's no doubt that Republican politicians believe that this is why they worked so long and so hard to get a conservative court. This is one of the reasons they worked so long and so hard to get a conservative court. This is one of the reasons they worked so long and so hard to get a conservative court. All right. We're going to take a quick break. More in a second. And we're back. And Nina, we're talking about college admissions.

But I remember an earlier podcast we did about this case where you said that there could be other consequences, too, off campus. Oh, yes. And every HR department in the country is dealing with this and more than HR departments. It's certain to come up in employment. It's almost certain to come up in DEI programs across the country and how they can be structured so that you're not hauled into court, if there is a way to structure them. It's definitely going to come up in challenges to efforts by various corporate boards to bring more diverse members. There is almost literally no aspect of American life that is not touched in some way by race. It has been that way since the original sin of race in enslavement. And so our modern society is a lot better than it was 50 or 100 years ago. But let me quote more or less what Justice Sotomayor said. She said, ignoring inequality will not make it disappear. Today's endemic segregation

continues. And the opinion of the court today is based on a fiction that racial inequality will end at a particular time. That, she said, is shallow guesswork. You listed all the different places in American life where this decision could reverberate. That, she said, is shallow guesswork. You listed all the different places in American life where this decision could reverberate. Now, not all of them take federal funds, but it was interesting to me that Chief Justice Roberts explicitly exempted military academies, like West Point, from this ban. He said he did it in light of the, quote, potentially distinct interests they may represent. What did he mean?

There is a history that he knows about, which is that in the Vietnam War, the officer corps was basically white and a significant, huge proportion of the grunts were African-American or Latino. And it led to enormous friction, even attacks on officers. And the military recognized that they couldn't continue this way. And they do have affirmative action. They work very aggressively to promote a diverse officer corps because it bosses around a diverse grunt corps. Nina, you talked about all these places in American life where this decision could have an impact on practices. Would it require another court case? Would this have to come back to the Supreme Court again for this president to apply in places off campus? And do you foresee more race-focused cases making it to the Supreme Court in the coming years? Absolutely. And the court has reserved some of those. I mean, it decided a case involving the

Indian Child Welfare Act this year, upholding the act, but leaving for another day the question of whether the law's preferences for tribal members in adoptions and fostering amounts to a racial classification that violates the law. So that even in this term, they set that for another day. Everything I mentioned, it's my notion will end up in the lower courts first, and then they'll crawl up to the Supreme Court. So more to come, as you say. Much more. All right. Well, we're going to leave it there for today.

I'm Tamara Keith. I cover the White House. I'm Nina Totenberg. I cover the Supreme Court. And I'm Mara Liason, national political correspondent. And thank you for listening to the NPR Politics Podcast.