Today, Explained - Supreme Court: Race need not apply

Episode Date: June 29, 2023

The Supreme Court ruled against race-conscious admissions policies at Harvard and UNC. The ruling is likely to reshape affirmative action in America. This episode was produced by Avishay Artsy, edited by Matt Collette, fact-checked by Laura Bullard and Miles Bryan, engineered by Patrick Boyd and Michael Raphael, and hosted by Noel King. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Good morning. We're coming on the air because the Supreme Court has just released a major decision concerning one of the most defining cases brought before the justices this term. The Supreme Court today struck down race-conscious admissions policies, often called affirmative action, at Harvard and the University of North Carolina, saying they violate the Equal Protection Clause of the Constitution. The court's ruling is, of course, not confined to those two schools, but will affect many colleges and universities in the U.S. The justices voted six to three along ideological lines, with Chief Justice John Roberts writing the majority opinion and Justices Sotomayor and Kagan dissenting. Justice Katonji Brown Jackson dissented in the UNC case and recused herself on Harvard, where she was on the board until recently. Coming up on Today Explained, a ruling that overturns decades of past precedent and where college campuses go from here.

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withdrawals. Get more everything with FanDuel Sportsbook and Casino. Gambling problem? Call 1-866-531-2600. Visit connectsontario.ca. It's Today Explained. I'm Noelle King. The Supreme Court has considered race-conscious admissions several times in the past and preserved it with some nuances and some exceptions. So today's ruling is a break with decades of precedent. Eric Hoover is a senior writer at the Chronicle of Higher Education, and he's going to walk us through those decades. Eric, start this way. What is affirmative action? So, broadly speaking, affirmative action refers to policies and practices designed to promote opportunities for members of historically underrepresented groups. In 1961, President John F. Kennedy issued an executive order

instructing federal contractors to take affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin. Not every child has an equal talent or an equal ability or equal motivation. But they should have the equal right to develop their talent and their ability and their motivation to make something of themselves. And then, just a few years later, President Lyndon Johnson signed another executive order expanding on Kennedy's order. You do not take a person who for years has been hobbled by chains and liberating, bringing up to the starting line

of a race and then say, you are free to compete with all the others and still justly believe that you have been completely fair. And it's at that point at the height of the civil rights era that the term affirmative action becomes entwined, if you will, with widespread efforts to promote racial equality. Okay, so how is affirmative action used right now today in the case of colleges and universities? Right. I'll just throw in another term here, and that is race-conscious admissions policies, evaluations opportunities he or she has had, and perhaps the barriers and challenges that they might have faced. So not just their achievements matter, but the context for those achievements. And for all of us, I think it's fair to say race is a part of our context. But we would assume all of those applicants believe themselves to be

qualified in some way or another. Yeah, I think you raised a super important point here that often gets overlooked. When we're talking about the use of race in admissions, we're talking about race coming into play among students who are all qualified. Maybe they don't have exactly the same grades or test scores, but an applicant's race is only going to, quote unquote, matter if they are qualified in terms of all these other data points. When did the Supreme Court enter stage left, as it were? You have to go back to 1978, the first time the Supreme Court weighed in on the use of race-conscious admissions policies, and that was in something called... Regents of the University of California against Bakke.

Here's the story, real quick. Alan Bakke was a white man who had twice applied for admission to the University of California at Davis' medical school. He was rejected both times. And key fact, back then, the medical school reserved 16 of its 100 spots in each year's entering class for qualified minority applicants. And this was part of the university's affirmative action program and strategy. And it said at the time that the purpose was to redress longstanding unfair minority exclusions from the medical profession. The racially conscious admissions program at Davis and any racially conscious admissions program designed to increase the number of minority

students at a professional school is fully consistent with both the letter and the spirit of the 14th Amendment. So the legal question was, did the University of California at Davis violate the 14th Amendment's equal protection clause? And there was not a single majority opinion in this case. Four of the justices contended that any racial quota system supported by the government, and this was a state university, violated Title VI of the Civil Rights Act of 1964. Key player here, Justice Lewis Powell, agreed, and he cast the deciding vote, ordering the medical school at UC Davis to admit this man, to admit Bakke. The other four justices held that the use of race as a criterion, not the only one, but as one of many,

in admissions decisions was constitutionally okay. And Powell, the character that he was, joined that opinion as well, and he wrote that the use of race was permissible. In a flexible program designed to achieve diversity, but it is only one factor weighed competitively against a number of other factors deemed relevant. In other words, it was okay as long as race wasn't determinative and it wasn't used in too rigid of a way. But yes, colleges can consider an applicant's race in this holistic way, and holistic is kind of the key word today when we talk about race-conscious admissions.

So racial quotas are a bridge too far. Race can be considered, but you can't set seats aside for racial minorities. That's right. And then where does affirmative action and the Supreme Court go from there? The next big deal is a case in Michigan back in 2003. There were two lawsuits filed against the University of Michigan at Ann Arbor. And at the time, starting in the late 90s, the University of Michigan used a point system. and you got 20 points if you were a member of an underrepresented minority group. So in the end, a 6-3 majority ruled that Michigan's admissions policies did not allow for the individual consideration of each applicant. Moreover, unlike Justice Powell's discussion, where the race of a particular black applicant, as he put it, could be considered without being decisive. Respondents readily conceived that this automatic distribution makes race decisive for virtually every minimally qualified,

underrepresented minority applicant. This was too automatic, too mechanized to pass constitutional muster. But there's a second case, and this was the Grutter case. And this was a challenge to the University of Michigan's law school's admissions process, where race was also a factor, but it was considered in this, key word, holistic way. No one was accepted or denied based automatically on one variable, such as race, and that many other factors might have contributed to considerations

of diversity in addition to race. And so the court found that the law school's race-conscious admissions program does not unduly harm non-minority applicants. So again, you have an example of what was not okay to do and an affirmation of how colleges could continue to consider race in admissions. Okay, this is interesting. So along the way, the court has ultimately, in both of these cases, said there's some stuff you can't do, but overall, you can do what you've been doing, with a bit of nuance. Then we get to Fisher v. University of Texas in 2016. Tell us who Abigail Fisher was and what the crux of that case involved.

Yep. Abigail Fisher was a white student who applied to the University of Texas in 2008. At the time, Texas had enacted what's known as a top 10% plan. And that was any high school senior ranked in the top 10% of their high school class would be automatically admitted to Texas. But Texas rounded out the rest of its class by using an admissions policy that did consider applicants' race and ethnicity. So she wasn't in the top 10%. She applied for admission, and she was denied. She would have been in the pool where race and ethnicity came into play.

She argued that the university's use of race in the admission process violated the Equal Protection C clause of the 14th Amendment. The upshot was that University of Texas at Austin was using race in a constitutionally permissible way, that it hadn't violated the standards set forth in Backe or in the Michigan cases. And so she lost, and University of Texas prevailed, and it was a surprising case at the time. But again, a narrow majority found that Texas was not doing anything really outside the tradition of legal precedent that it had already affirmed twice. Okay, so up until this point, it sort of seems like affirmative action is safe, and that brings us to the present day. Tell me about these two new cases that the Supreme Court has just weighed in on. So this is a group of plaintiffs known as Students for Fair Admissions. They sued Harvard over its admissions process, alleging that their admissions policies violate Title VI of the Civil

Rights Act of 1964 by discriminating against Asian American applicants in favor of other applicants. Asians should be getting into Harvard more than whites, but they don't because Harvard gives them significantly lower personal ratings. Harvard ranks Asians less likable, confident, and kind, even though the alumni who actually meet them disagree. On the same day, the same group filed a lawsuit against the University of North Carolina at Chapel Hill arguing that their holistic review process, which takes race and ethnicity into account, violates the 14th Amendment. The assumption that race necessarily

informs something about anyone's qualifications is antithetical to this court's precedents and to our Constitution. And so here we are, deja vu all over again. These are very similar arguments that have been made before, although there's a kind of a novel thing here happening at Harvard, the allegation that Harvard was discriminating not against white applicants, but against a subgroup of minority applicants. Students for fair admissions in this lawsuit are led by a longtime opponent of affirmative action named Edward Bloom. Can you tell me about how he fits into all of this? Yes, definitely. Edward Bloom is a key player in this tale, and he is the architect of the lawsuits filed against Harvard and UNC, as well as the lawsuit that Abigail Fisher filed against

the University of Texas at Austin. So who is this guy? Well, he's a conservative activist, and previously he has opposed key voting rights protections for minorities. The United States law today, as interpreted about 20 years ago by the Supreme Court, allows colleges and universities to put a thumb on the scale based upon a student's race or ethnicity. In the case of Harvard and other elite universities, that thumb on the scale is now diminishing the opportunity of Asian Americans to be admitted, while boosting the likelihood that African Americans, Hispanics, and whites will be admitted. His main argument is, again, echoing arguments have been made before, is that a consideration

of an applicant's race in any way whatsoever violates the Equal Protection Clause of the 14th Amendment. And he believes that race has no place in evaluations of applicants, and that when race can be a plus factor for some applicants, say, Black or Latino, Latina applicants, then it is going to undermine the rights of other applicants in that pool, say, white and Asian American ones. — Edward Bloom's arguments sound like the same arguments that have been made before the Supreme Court in the past and that have failed. Why do you think this case succeeded? Yeah, well, I think as is often true in life, in the universe that we live in, timing is everything.

The core of the arguments that have propelled the lawsuits against Harvard and UNC here aren't new. But the ideological balance of the Supreme Court has shifted since the last round. As we know, President Donald Trump appointed three conservative justices to the court during his time in office. Now there's a solid 6-3 conservative majority. And not just a conservative majority, but a deeply conservative one. So, you know, previously, the Supreme Court has upheld the limited consideration of race and admissions by the narrowest of majorities. And then today, given the conservative leaning of the court, Ed Bloom seems to have finally found a more receptive audience with the justices.

This will have wide-ranging effects across American higher education. Many colleges across the country have been bracing for this opinion, trying to figure out how in the admissions process going forward they can create a diverse campus and collection of students in their student body, which is not only a value to incoming students, but many of their parents, without considering race. Well, the Supreme Court has now said you cannot consider race in any way, shape or form. And if you do, you'll be violating this ruling and the U.S. Constitution.

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advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. We should never allow the country to walk away from the dream upon which it was founded. That opportunity is for everyone, not just a few. We need a new path forward, a path consistent with a law that protects diversity and expands opportunity. So today I want to offer some guidance to our nation's colleges as they review their admission systems after today's decision. Guidance that is consistent with today's decision. They should not abandon, let me say this again, they should not abandon their commitment to ensure student bodies of diverse backgrounds and experience that reflect all of America.

It's Today Explained. We're back with someone who was very close to today's ruling for a look at what post-affirmative action college campuses might look like. My name is Julie Park, and I'm an associate professor in the College of Education at the University of Maryland, College Park. And for this interview, I should mention I served as a consulting expert on the Students for Fair Admission versus Harvard trial on the side of Harvard. And what did Harvard want out of this trial? Harvard was seeking to defend themselves against allegations that they had unfairly treated Asian Americans in the admissions process, that they had in some way intentionally and systematically discriminated against Asian Americans. Some states at this point have already banned race-conscious admissions policies. What happens when that happens? What we have seen in a number of states that banned these types of policies were really drastic drops in African-American, in Latinx student enrollment. That's what we've seen in

states like, you know, California, Michigan, Texas, etc. In 1996, California voters approved a ballot initiative, Proposition 209. It said that race, ethnicity and sex could not be used in hiring or admissions decisions at state institutions, including colleges and universities. The result, a dramatic drop in the number of underrepresented minority students. There are a lot of smart kids in this country, and there are very, very, very few selective schools. And so if everybody is qualified, it could be one or two factors that put a particular student over the edge. Schools still want diversity. And so how will they get it now?

I mean, I'm hoping they're going to pull out all the stops. And so they're going to try to expand their outreach to groups that have been historically underrepresented. So say if the Supreme Court says you cannot consider race, ethnicity, that doesn't mean you can't still consider it in things like recruitment and outreach, etc. And so I think they are going to invest additional resources. And then they're also going to, I hope, have some soul searching and look at some of the policies that they have used over the past years that might be somewhat counterproductive to equity. And so that might be things like prioritizing recruited athletes who tend to be disproportionately white. It might

include looking at things like early decision policies, which really privilege students who can apply without having to compare financial aid offers, because through applying early, it basically is a binding decision. It also, for large public institutions, it might influence, or I hope it will influence, how they recruit out of state. So currently, a number of public institutions recruit at predominantly white affluent high schools outside of the state because they want, or they will say they need non-resident dollars to balance their budgets. And so that's a practice. One researcher, Karina Salazar, calls recruitment redlining,

where they will go out of their way to avoid black and brown high schools, sometimes those that are in their own backyards, and they will go out of their way to these more affluent high schools. So are they going to pull back on some of those practices that undermine equity? I think those are pretty low-hanging fruit. But what are they actually going to do? We will see. Do you think if diversity is still a priority, colleges might look at dropping policies like legacy admissions that do traditionally help affluent white kids? Yeah, I think so. I mean, I don't see how they couldn't.

How much of the impact is that going to have? Like, is that going to open up a ton of seats that are necessarily going to go to students who have been historically underserved? I'm not sure, right? Yeah. Admissions is not a formula where it's like, oh, you take this group out, you swap this group in, etc. But, you know, any bit helps. So I think, and certainly just out of principle, I don't really see how you defend legacy admissions if you say you have these values around equity and inclusion. Your side did not win in this case, and there will be some significant changes as a result of the decision handed down today. Where do you think we go from here? Yeah, I think from here, it's really all hands on deck, right, in terms of recognizing, you know, what policies need to be re-evaluated

because they undermine equity and social mobility and access to higher education, and then also thinking about what additional policies do we need to increase and encourage both applications from groups that have been historically excluded, as well as supporting their enrollment and retention. I think the country needs to think about what do we need as a country to make sure that we are serving, right? That college graduates are supposed to go into occupations that serve the common good, that serve all sectors of society. And we know that that is impossible without racial and ethnic diversity, that you aren't going to have people who are able to reach communities that have been historically underserved

without having high numbers of college graduates from those same backgrounds who are very interested in asking the right types of questions, who can think outside of the box to think about, you know, what does the entirety of this country need? And so the ruling may be a setback, but from there, I think the commitment has not been eroded. I think from the civil rights community, what we're hearing very much is this kind of call of, we won't go back. We want to see opportunity and we want to see support for students from all different backgrounds, both racial, ethnic, but then also economic, to be able to access higher education and have it be a space where they can thrive.

That's Julie Park from the University of Maryland at College Park. Earlier in the show, we heard from Eric Hoover at the Chronicle of Higher Education. Today's show was produced by Avishai Artsy and edited by Matthew Collette. It was fact-checked by Laura Bullard and engineered by Patrick Boyd and Michael Rayfield. I'm Noelle King. It's Today Explained. The Congressional Black Caucus of the Supreme Court has thrown into question its own legitimacy. Is this a rogue court? This is not a normal court.