What A Day - Could A Conservative Court End Affirmative Action?

Episode Date: January 25, 2022

The Supreme Court announced yesterday that it will hear cases on the right of universities to consider race in admissions. The court has historically ruled that universities have a limited right to consider an applicant’s race during the admission process, but the court’s conservative majority could upend decades of precedent. Lawyer and journalist Jay Willis joins us to discuss what we can expect, what this might mean for affirmative action, and the future of higher education.And in headlines: NATO said that its allies are sending military reinforcements to Eastern Europe amid tensions at the Ukrainian border, the Burkina Faso military announced that it seized control after overthrowing President Roch Marc Christian Kaboré, and four attorneys general filed a privacy lawsuit against Google.Follow us on Instagram – https://www.instagram.com/whatadayFor a transcript of this episode, please visit crooked.com/whataday

It's Tuesday, January 25th. I'm Gideon Resnick. And I'm Josie Duffy Rice. And this is What A Day, where we're happy to live in a world where Joe Biden doesn't realize he sang his internal monologue out loud into a microphone. Yeah, we're just lucky that this time he's calling Peter Doocy a stupid son of a bitch after a press conference and not thinking about what he'd like to do to an ice cream cone. Oh, God. On today's show, NATO is sending military reinforcements to Eastern Europe amid tensions at the Ukrainian border. Plus, four attorneys general filed a privacy lawsuit against Google. But first, the Supreme Court announced yesterday that it will once again decide whether or not the consideration of race in university admissions violates civil rights laws.

As recently as 2016, the court has ruled repeatedly that universities do have a limited right to consider an applicant's race when evaluating potential candidates for admission. However, the court's decisive conservative majority could upend decades of precedent on this issue. The cases, which are being reviewed together, accuse Harvard and the University of North Carolina of discriminating against Asian American students. In Harvard's case, the lawsuit alleges that Asian American applicants were discriminated against on the basis of subjective standards to gauge personal qualities like leadership. At UNC, the plaintiffs argue that the university had discriminated against these applicants, as well as white ones, in favor of admitting Black, Native American, and Hispanic applicants. The fact that Harvard is a private institution while UNC is public means they're subject to slightly different

legal standards. Yeah, and both cases were brought by Students for Fair Admissions, the group founded by the conservative legal activist Edward Bloom. The lower federal courts that have previously heard both cases all ruled for the universities. But as we mentioned, the makeup of this Supreme Court is vastly different since the court's last time tackling this issue in 2016 when it upheld the admissions process at the University of Texas at Austin. Only two members of that majority in that decision are currently on the court. And we've already seen numerous indications of this conservative majority's eagerness to take on massive cases pertaining to abortion, guns, the pandemic, and more. So it's not looking good. For more on this, what we can expect, and what this might mean for affirmative action and the future of higher education, we have with us my good friend Jay Willis, lawyer and journalist and the editor-in-chief of Balls and Strikes, a progressive news site that covers the Supreme Court.

Happy to be here to talk about America's most important constituency, white kids who are mad that they didn't get into Princeton. Exactly. Can you tell us a little bit about the cases that the Supreme Court decided to hear today? Yeah. So there are two consolidated cases about admissions policies at Harvard and the University of North Carolina, but I'm just going to call them together the Harvard Affirmative Action Case because that's what everyone who's been watching this for the last decade or so has been calling it. And it's really a long bubbling challenge to the use of race-based preferences in admissions in higher education. I won't go through

the like deeply exhaustive details of how Harvard's admissions policies work, but the upshot the challengers say is that they discriminate against Asian American applicants at the expense of African American, Hispanic, and Native applicants. You see what these people did here? They found someone who's not white to be leading this charge. But the case isn't just about like the specific admissions policies at Harvard and UNC. It's also just a facial challenge to the existence of affirmative action in higher education in general. So whether it's allowed at all. And you see kind of a parallel with these discussions that we're having about abortion access, right? There's always this litigation over different anti-choice laws

and whether that's allowed under Roe. And conservatives have been steadily chipping away at that for decades. And we're seeing the same thing with affirmative action now, right? Where not only are we litigating specific affirmative action policies, but they're also asking the Supreme Court to just get rid of it altogether. So Jay, does it seem as though these are going to be narrowly decided or are they going to be taking on the question of affirmative action writ large? So the reason that there's, I guess, reason to fear that this case is the question of affirmative action writ large? So the reason that there's, I guess, reason to fear that this case is the end of affirmative action is sort of this case's place in the context and the history of challenges to affirmative action. Maybe you've heard of this

lady, Abigail Fisher, petitioner in Fisher v. University of Texas. It was a series of Supreme Court cases that was basically the conservative legal movement's last big push to end affirmative action. And that upheld a affirmative action program at the University of Texas. And the vote there was four to three upholding that. No Kagan, she had recused herself because she had worked on that case while she was solicitor general. And no Scalia because he was dead. So in the majority, you had Kennedy, Ginsburg, Breyer, and Sotomayor. In the dissent, you had the conservatives, Alito, Roberts, and Thomas. So if you're doing some math, two of those justices who were in the majority are now Brett Kavanaugh and Amy Coney Barrett,

and Scalia is now Neil Gorsuch. Not great. And you're going to see this pattern in the abortion context, in affirmative action, in many others, just this increasingly aggressive position from conservative litigators, taking extreme positions that just ask the court, like, look, let's stop tinkering around the edges here. Let's just talk about what we really want to talk about. Let's not even bother to put a legal gloss on it. Can you tell us a little bit about what the precedent has been around affirmative action? So you mentioned Fisher, which was the most recent case, but there's kind of a longer history of

affirmative action precedent. So what does that look like? So a lot of people think that affirmative action is about quotas, you know, strict numerical set-asides for minority students. And that's not true at all. The court barred those way back in 1978. It said that schools can consider race for the purpose of putting together a diverse student body, but you can't just make it a numbers game. So as it exists today, affirmative action means that school administrators can consider race, but only as kind of a soft factor, right? Part of the phrase is a holistic review process that evaluates each applicant on an individual basis. And in my view, this acknowledges the basic reality that a system where access and success is based heavily on like test scores and GPAs and neighborhood schools and wealth and tutors and stuff is not going to account for group differences in access to those things caused by deep seated histories of racism and discrimination that continue today. However, I am not a conservative judge. So sort of ask like the obvious question here to like, what impact is this potentially going to have on higher education writ large?

If affirmative action were to be tossed, it is going to create student bodies that look a lot less like the country at large and more like the very narrow slice of society that is like the kids of Fortune 500 executives. So in a 2003 case that upheld the use of race as kind of this soft factor, the justices placed a lot of weight on briefs that were filed with the court by businesses, by the U.S. military, that talked about how important diversity was to success. Success in business, success in national defense. And without affirmative action, you're going to have access to some of these like most elite institutions that really act as like tickets to upward socioeconomic mobility. You're going to

have those by and large limited to already wealthy people for whom that's not going to do a whole lot that they don't already have. To that end, what other implications could all this have beyond just sort of the potential restructuring of the way that higher education looks? The strangest thing about kind of what gives away the game for critics of affirmative action is that they kind of ignore the most lucrative, the biggest leg up in the admissions game, and that's legacies and children of wealthy donors. So there's a 2017 study that found at 38 schools, I think five Ivy League universities, there were more students in the student body from the top 1% than the bottom 60%.

Wow. Harvard's class of 2021, 29% legacy students. If you had relatives who went to Harvard, you were about three times more likely to get in than if you didn't. And these applicants, surprise, about two thirds white. This litigation over affirmative action, it doesn't address that. It doesn't address sort of the perpetuation of wealth and status through admissions to higher education. It's just targeted at racial minorities, which of course is just part of the conservative legal movement's favorite, longest running culture war, right? I have some guesses as to how you're going to respond to this, but are you surprised that they are taking up this case right now? Yeah,

it's not a surprise at all. The same people who pushed Abigail Fisher's case are behind these cases. It's a conservative activist group that basically combs the country for plaintiffs who can be good challengers to these policies and just tries to take another crack at it every time. And so far, they've run into moderate to conservative courts that are just squishy enough to allow some semblance of affirmative action to survive. But with this six-justice conservative supermajority, like, now's the time. They can't wait to do it. The University of North Carolina case, a federal appeals court hasn't even heard on it yet. All we have is a district court decision from that. And the plaintiffs are petitioning to go straight to the Supreme Court. You have to remember that these lawyers who are

getting appointed to the bench now, these conservative justices, they have been steeped in the conservative legal movement in this ideology for decades, for their entire legal careers. They have been part of a movement that is centered on undoing Roe, undoing Bakke and Grutter, the affirmative action cases, undoing some of the more progressive decisions that came from the Warren court. Like this is their chance to etch their names into history. Why wait a couple of years? All right. Well, Jay, thank you so much for joining us to talk about where our highest court in the land is going these days. We really appreciate your time. Thanks again for having me.

I'm sorry whenever we get together to talk about the Supreme Court. It's just to talk about the grimmest shit imaginable. More on all of that soon, but that's the latest for now. We'll be back after some ads. let's wrap up with some headlines headlines nato said yesterday that its allies are sending troops ships and fighter jets to eastern europe amid growing fears of a r invasion of Ukraine. While Russian diplomats have repeatedly denied plans to invade, the country has amassed over 100,000 troops along the Ukrainian border in recent months. Embattled UK Prime Minister Boris Johnson warned on Sunday

that Russia had gathered enough troops, 60 battle groups to be exact, for a, quote, lightning war that could take out Kyiv, end quote. Britain has joined the U.S. in withdrawing their diplomats' families from the Ukrainian embassy amid concerns for their safety. These heightened fears come just weeks after the U.S. and Russia failed to come to an agreement in their security talks in Geneva. Under orders from President Biden, U.S. Secretary of Defense Lloyd Austin put over 8,000 troops on alert for possible deployment to Eastern Europe. At the time of recording, no decision to deploy has been made by the U.S. Yeah, that is quite scary. The military of Burkina Faso announced yesterday that it has seized control after overthrowing the West African nation's president, Rochmar Christian Cabaret.

This makes Cabaret the third West African leader to be overthrown in the last eight months. Captain Sidzeray Kuder-Wadrago said yesterday that soldiers had suspended the country's constitution, dissolved the government, and closed the nation's borders. Cabaret, who was democratically elected in 2015, has faced harsh criticism from the military over what they allege is his failure to ensure safety after violence by militant groups displaced 1.4 million people and caused over 2,000 deaths in the past year. Cabaret's whereabouts are currently unconfirmed and Burkina Faso's defense minister said that the government has reached out to the military to hear their demands. United Nations Chief Antonio Guterres said that he strongly condemns

any attempted takeover of government by the force of arms. And the U.S. Department of State said it was, quote, deeply concerned about the coup and, quote, urged a swift return to civilian rule. In both real estate and big tech invasions of privacy, it is all about location, location, location. A new lawsuit speaks to the big tech part of this well-known saying. Attorneys General from D.C. and three other states sued Google yesterday, claiming that the company deceived customers so that they could harvest their location data even after users had opted out of tracking location history. This kind of data is crucial to Google's business.

It helps them to target users and make money from advertisers. To preserve that cash flow, the lawsuit alleges that the company employed a variety of deceptive tactics. That includes intentionally confusing menus and messages telling users that apps needed location data to function even if they did not. The offenses listed in the suit are said to have taken place between 2014 and 2019. For its part, Google described the claims as inaccurate, with one spokesperson saying, quote, we have always built privacy features into our products and provided robust controls for location data. Personally, I only turn on location tracking when I'm at the gym, so Google thinks I am literally always getting absolutely ripped. The suit aims

to stop Google from engaging in these practices and stick the company with a fine. And finally, an update on our favorite anti-vaxxed singer. The judge presiding over Sarah Palin's defamation suit versus the New York Times announced Monday that the former Alaska governor tested positive for coronavirus. Judge Jed Rakoff postponed the trial start date to February 3rd, confirming that Palin had tested positive three times and announcing to the court that, quote, she is, of course, unvaccinated. Damn.

Not wholly surprising for a person who said last month she would get vaccinated, quote, over her dead body. In case you missed yesterday's episode, Palin is suing the New York Times and its former editorial page editor for allegedly damaging her reputation after a 2017 editorial falsely suggested an image produced by Palin's PAC led to the 2011 shooting of Representative Gabby Giffords. Yesterday's diagnosis won't be the first COVID rodeo for Palin, who announced her first infection in March of 2021. We can only assume she contracted it back then to get out of a different unfortunate adult obligation like a dentist appointment. Just kidding. This is

legally a joke. So please don't slap us with a defamation suit. Yeah, please. And I'm also personally very invested in what happens in the investigation about her going into a restaurant in Manhattan, potentially with active COVID. Yeah, man. What's going on there? You know what? The rules are different in New York than they are in Alaska. Yeah, they certainly are.

Someone should let her down. Maybe the rules are different for people that have been on The Masked Singer going into restaurants in New York that I don't know about. I will always remember her as Masked Singer first, almost vice president second. Exactly as it should be. And those are the headlines. That is all for today.

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Check it out and subscribe at Cricut.com slash subscribe. I'm Josie Duffy Rice. I'm Gideon Resnick. And we're at the gym, Google. Yeah. Always. Always. Even now.

I have been to the gym exactly zero times this year, last year, and the year before. But I just leave myself on there all the time. So Google feels like I live there. That is right. What a Day is a production of Crooked Media. It's recorded and mixed by Bill Lance. Jazzy Marine and Raven Yamamoto are our associate producers. Our head writer is John Milstein with writing support from Jossie Kaufman.

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