Legal Docket: Diversity on campus

NICK EICHER, HOST: It’s Monday, November 7th.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. So Election Day’s tomorrow!

I can tell you where I’ll be. WORLD’s Election Center at wng.org/election. That's the place where we’ll be featuring live updates and interactive maps on every single Senate, House, and governor’s race.

Plus results on important state ballot measures. And reporting from our WORLD team all in one place.

EICHER: Wng.org/election for our WORLD election center 2022.

It’s time for Legal Docket.

It’s rare for the Supreme Court to overturn one of its precedents. And that’s because by and large, the court’s rulings are well-reasoned and legally workable, even though every decision produces an unhappy party.

Statistically, precedents hold up 99.5 percent of the time.

So in that half percent of cases that do not, it’s big news--as when Roe versus Wade finally fell.

And today, more potentially big news: we have two companion cases from this term where, once again, a party asks the Court to overrule precedent. The topic this time is affirmative action in school admissions. 

REICHARD: The two cases: Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard.

Justice Ketanji Brown Jackson recused herself from the Harvard case. She attended undergrad and law school there and served on Harvard’s Board of Overseers. So she only participated in oral arguments in the University of North Carolina case.

EICHER: That meant the court had to hear separate oral arguments in these cases. It did so one week ago today in a five-hour marathon session. Our Washington, D.C., legal reporter Jenny Rough was there to listen to it all in person.

Hi, Jenny!

JENNY ROUGH, GUEST: Hi, Nick and Mary.

Well, you know me. I like to nerd out on Supreme Court arguments and speaking of being a nerd: now I’ll give you some Supreme Court news that will fast become Supreme Court trivia. The U.S. Postal Service has announced that the late justice Ruth Bader Ginsburg will be featured on a stamp and, here’s the trivia part, she becomes the first female justice to appear.

REICHARD: Right, because, more trivia here, the first justice on a stamp was former Chief Justice John Marshall. In 1894, he was on the $5 stamp. A dozen other justices have been featured since then.

EICHER: A five-dollar stamp. I’ll give you both some trivia. Any idea what five dollars then would be equivalent to today? (Not putting it in script.)

Can you imagine a stamp worth that much? I looked this up: I could send you a 60-pound package two-day express and just slap a Chief Justice Marshall on there, and we’d be good to go. (You ladies started it, just sayin’.)

ROUGH: Some fun trivia there.

Okay, onto the cases now. Both UNC—the University of North Carolina—and Harvard College take race into consideration as one of many factors when deciding whether to admit students. The schools say a diverse student body has educational benefits.

Students for Fair Admissions sued. That organization believes race should not harm or help a student gain admission to higher education.

REICHARD: A 2003 Supreme Court case called Grutter v. Bollinger held it’s okay for schools to use race in a holistic review of each applicant. But its use must be narrowly tailored and only for a compelling interest. Now, Students for Fair Admissions asks the court to overrule that 2003 case. So how did things go?

ROUGH: Really interesting! The questions from the justices about diversity were diverse!

First, the court heard the case against the University of North Carolina.

UNC is a state school, so the analysis is a little different than for Harvard. For a public school, the legal question is whether the admissions policy violates the Fourteenth Amendment’s equal protection clause. That says a state cannot deny any person equal protection under the law.

Patrick Strawbridge argued for Students for Fair Admissions.

STRAWBRIDGE: Racial classifications are wrong. Whatever factors the government may use in deciding which jurors to sit, who you may marry, or which primary schools our children can attend, skin color is not one of them. Grutter is a glaring exception to this rule. The Court should overrule it.

One major line of questioning he fielded had to do with application essays. Justice Amy Coney Barrett asked him if admissions policies were race neutral, as his client wants, how should a school handle an applicant who refers to race in an essay?

BARRETT: And I want to know whether in your view of the world if a student wrote an essay describing some of the experiences that Justice Sotomayor said, you know, I struggled with socioeconomic diversity, racial prejudice, things that shape who I am. In your view of the world, could a university take that into account without offending the Equal Protection Clause?

STRAWBRIDGE: Yes. I think this court’s precedents even note that the act of overcoming discrimination is separate and apart distinction from race. What we object to is a consideration of race and race by itself.

BARRETT: Race in a box-checking way as opposed to race in an experiential statement?

STRAWBRIDGE: Which the record in this case is that they can give the preference based on the check of a box alone.

Ryan Park argued on behalf of the University of North Carolina. And said the school seeks a student body that is you guessed it, diverse!

PARK: This learning environment helps us seek truth, build bridges across students of different backgrounds, and critically here, equip students with the tools needed to function effectively as citizens and leaders in our complex and increasingly diverse society.

The justices peppered him with questions about when and how the school’s race-conscious policy will be replaced with a race-neutral one. Even the Grutter case that held it’s okay to consider race as one of many factors said it envisioned schools would develop race neutral policies in 25 years. That would be six years from now.

Justice Brett Kavanaugh asked about that.

KAVANAUGH: The opinion didn’t say until you reach a point where you’re satisfied that diversity has been achieved or something vague like that. It said 25 years in there. And so I want to hear how you address that part of the Grutter precedent,  because as I understand your answer,  you would extend it far beyond 25 years indefinitely.

PARK: We don’t read the 25-year as some sort of strict expiration. I think every institution in every state will differ.

Next up, the Harvard case. Harvard is a private school. This is not a 14th amendment issue. This dispute arises under Title VI of the Civil Rights Act. That prohibits discrimination based on race for schools that receive federal funding. Similar legal question. Different law.

Harvard is very exclusive: For 1600 spots, Harvard considers 61,000 applicants. Meaning 97 percent are rejected.

Cameron Norris argued on behalf of Students for Fair Admissions. He said that if Harvard really wants diversity, it should eliminate its preference for rich kids and children of alumni, so-called “legacies.”

NORRIS: Harvard is not diverse at all. Harvard is 82 percent wealthy. There’s 23 rich students for every one low-income student.

Here he is in an exchange with Justice Sonia Sotomayor about how a race-neutral policy could change things.

NORRIS: We have a very sophisticated race-neutral alternative in this case that takes into account socioeconomic status and forces Harvard to eliminate its preferences for the largely white legacies. The number of Asians would increase on campus; the number of Hispanics would increase on campus; the overall number of under-represented minorities would increase on campus.

SOTOMAYOR: Blacks wouldn’t increase.

NORRIS: Black representation would be 10 percent.

Justice Sotomayor later asked what’s a school to do with so many qualified candidates?

SOTOMAYOR: If you have perfect scores on every metric, you’re not guaranteed a spot at Harvard because they have enough people with perfect scores of every background that exceeds their class limit.  And you’re saying a school can’t look at its general diversity figures and say, among equal applicants, I might make race a tie breaker if the numbers that I have on that matrix seem fairly low otherwise? You’re saying no, you can’t do that.

NORRIS: No, you cannot do that.

Seth Waxman argued on behalf of Harvard. Chief Justice John Roberts returned to that tie-breaker question.

WAXMAN: Take two African American applicants. Some of their views may contribute to diversity from the perspective of Asians or whites, some of them may not. And yet it’s true that they’re eligible for the same increase in the opportunities for admission based solely on their skin color?

Waxman conceded that in some cases race will be the one factor of many that gets a student in.

ROBERTS: So we’re talking about race as a determining factor in admission to Harvard.

WAXMAN: Race for some highly qualified applicants can be the determinative factor, just as being an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.

ROBERTS: We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination. And that’s why it’s a matter of considerable concern.

REICHARD: Wow! The Chief was fired up right there! That must have been something, Jenny!

ROUGH: Yeah, it was really something to be there. The arguments were momentous and the grandeur of the architecture really fit the occasion.

Something really struck me about it as I walked through the building. You know, the Court houses artifacts and exhibits about the law, sort of like a museum. After oral arguments, I passed a display of Lady Justice. She caught my attention right away. Her sword and balancing scales and her blindfold.

The blindfold symbolizes impartiality. Judgment shouldn’t be based on appearances; shouldn’t show favoritism.

Eyesight can be deceiving. At oral argument, both parties seemed to agree that in an ideal world, admissions policies would be race neutral.

But we live in a broken world. And the question remains: How should we navigate race in college admissions given that our society still treats races differently? And given that race is intricately tied to culture, tradition, and heritage?

I’m not sure color-blindness is the answer here, but I think Lady Justice might be onto something. It’s not so much eyesight that’s needed. A just and right decision will take insight.

REICHARD: All right, that’s my partner, Jenny Rough, with this week’s Legal Docket. Great stuff, Jenny!

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