Legal Docket: The end of affirmative action

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NICK EICHER, HOST: It’s Monday the 25th of August.

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

JENNY ROUGH, HOST: And I’m Jenny Rough.

Just over two years ago, the Supreme Court stuck down race-based college admissions programs.

THOMAS: Such discrimination is plainly and boldly unconstitutional.

Such discrimination is plainly and boldly unconstitutional.

MONTAGE: President Trump wants to bring more transparency to the college admissions process. / Saying the move will ensure that meritocracy and excellence / characterize American higher education. / The president is expected to sign an executive order directing Education Secretary Linda McMahon to revamp a federal database … / “They are just going to look at whether there’s a racial disparity in test scores” / and now he’s saying many schools are not following a Supreme Court decision that essentially barred affirmative action. / “The Trump administration wants to pressure schools to conform to those measures, to the exclusion of black students and other students of color.” / “What they can’t do is determine that someone is a minority and maybe give them more points in the admissions.” / The Trump administration says it wants to shine a light on how colleges decide who gets in and who doesn’t.

EICHER: Last fall was the first year colleges and universities had data on freshman class demographics following the court decision.

ROUGH: This year is year two. So let’s unpack the decision and evaluate the new landscape.

ROBERTS: These cases involve the admissions system used by Harvard and the University of North Carolina.

Chief Justice of the United States, John Roberts.

He’s reading from the bench on June 29, 2023, the day the court announced the opinion in Students for Fair Admissions versus Harvard, and Students for Fair Admissions versus the University of North Carolina.

EICHER: Typically, we don’t get to hear the justices announcing the court’s opinions from the bench. On Legal Docket, you do get to hear clips from oral arguments but that’s because recordings of the arguments are released the same day. The court holds on to recordings of opinions for about a year before releasing them.

ROUGH: Roberts started with a brief summary of the facts:

ROBERTS: Both schools acknowledge that they use race as one factor in making their admissions decisions, and that race is a decisive factor for some of the students that they admit.

Students saw the issue through the lens of fairness.

POLANCO: I love that part of UNC, being in the classes… developing myself as a scholar, a writer, a researcher.

Cecilia Polanco was a student at the University of North Carolina from 2012 to 2016.

Polanco doesn’t know if her ethnicity gave her a leg up in her admission to UNC. But she does remember when she applied, she included this in her essay:

POLANCO: I talk about growing up and realizing I was Latina but not Mexican. Actually Salvadorian. And what does that mean? Why are we here? Why did my family immigrate here?

Polanco’s junior year, Students for Fair Admissions filed its lawsuit. Polanco intervened as a party in the case in support of the university’s affirmative action program.

EICHER: Here’s how the Chief Justice framed the legal issue:

ROBERTS: The question in these cases is whether Harvard and UNC’s program is permissible under the equal protection clause of the 14th Amendment.

… and the court’s ruling:

ROBERTS: We conclude they are not.

The equal protection clause of the 14th Amendment says, “no state shall … deny to any person within its jurisdiction equal protection of the laws.”

The text doesn’t mention race or ethnicity. But the context seems to. The states ratified the 14th Amendment in 1868, in the wake of the Civil War. Its core purpose was to protect black Americans coming out of slavery, to shield them from ongoing discrimination.

ROUGH: Students for Fair Admissions was not the first time the court considered whether race-based admissions violate that clause. Chief Justice Roberts walked through a timeline, starting with what happened after the 14th Amendment took effect.

ROBERTS: Now as anyone familiar with American history knows, however, for many years thereafter, the equal protection clause failed to live up to its full promise. Jim Crow laws and decisions of this court upholding them—

Decisions like Plessy v Ferguson.

ROBERTS: —meant that state-enforced discrimination continued in many parts of America for decades. It was a sad and egregious chapter in our nation’s history.

Plessy v Ferguson from 1896 imposed the principle of “separate but equal.”

ORGAN: And that meant we were a very divided society in terms of theaters, restaurants, beaches, water fountains, buses, all sorts of things.

Jerry Organ is a founding faculty member of the University of St. Thomas School of Law in Minneapolis.

ORGAN: And that finally changed in Brown versus Board of Education.

Brown was a primary-school segregation case the court used to overturn Plessy.

Organ analyzes school enrollment data in higher education. He says affirmative action in college admissions was one way to compensate for the residual effects of racial discrimination.

ORGAN: But it’s hard to implement affirmative action without saying we are going to treat some people differently than others.

It is, and the court struggled for decades with universities that used racial preferences in admissions. In 1978, the Supreme Court decided Regents of the University of California versus Bakke. It said race-based admissions were kinda okay.

But it was a highly fractured decision. Chief Justice Roberts again:

ROBERTS: The case produced six different opinions, none of which commanded a majority of the court. But one opinion written by Justice Powell for himself alone would come to serve as the touchstone for race-based admissions policies going forward.

EICHER: Justice Lewis Powell said racial quotas violated the equal protection clause. Meaning, universities could not reserve a certain number of seats for only minority applicants. But he contended that schools could consider race as one of many factors.

Fast forward 25 years to 2003. The Supreme Court again considered race-based admissions in two companion cases arising out of the University of Michigan. In Grutter versus Bollinger—

ROBERTS: A majority of the court, for the first time, held that universities could make race-based admissions decisions to pursue the educational benefits of diversity.

But the Grutter decision came with an expectation.

ROBERTS: Grutter imposed one critical limit on race-based admissions programs. At some point, the court held, they must end. The court made this important point six different times in six different ways.

A 2016 case, Fisher versus the University of Texas also upheld race-based admissions.

ROUGH: And that brings us to 2023 and the Students for Fair Admissions cases.

Cecilia Polanco, the student who intervened in the UNC case, told me that being a party helped her better understand the arguments.

POLANCO: Coming in, I think … I was very convinced about my position. So seeing the expanse of the arguments, I saw … there might be cases in which affirmative action might not be serving its purpose. And other situations where yes, this is needed in a corrective way.

She also gained insight into how judges are supposed to apply the law — not personal policy preferences.

POLANCO: And through the legal perspective it is much more to what is the precedent set by the law so far about this? And is it time for it to be updated?

The court said, it is time.

Under the legal test of strict scrutiny, the court had been finding that diversity in education was a compelling interest—so long as race was used narrowly, considered one factor among others.

To the present day, Students for Fair Admissions, the court changed its mind. It said diversity goals are not a compelling interest after all.

ROBERTS: Courts may not allow the separation of students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit meaningful judicial review.

So why did the same Constitution, the same 14th Amendment, considering the same legal question ,result in so many different opinions? Well, the facts change, the Court changes —and the question itself strikes at the heart of human limitations, as Professor Organ explains.

ORGAN: We’re flawed. You’re talking about human institutions with human beings who are flawed. We have kind of tribal instincts. … We tend to socialize with people like us. And the obvious difference is skin color. ... You know, are we a less discriminatory society than we were 100 years ago? Yeah. ... But there are still challenges. ... We still have problems to work through. But particularly for Christians it requires us to remember all of us are created in God’s image. … One way of embracing that is that the equal protection clause makes sense. … We're all of equal worth and dignity, and we should be treated equally.

EICHER: The court’s opinion also made much of the fact that neither Harvard nor UNC had an end-date in sight to stop its current programs and start applying race-neutral ones.

And it pointed out that racial boxes in application forms are arbitrary and confusing. Asian American, for example, doesn’t distinguish between South Asian and East Asian.

ORGAN: And what do you do about someone from Lebanon or Iran or Egypt? … If you don’t fit in this box, you default as white.

Polanco ran into that problem.

POLANCO: I don’t identify with a race. Maybe if there was a brown race, maybe that. You know, just to line up with the colors. … I hear people say, “I don’t see color.” No, it’s about actually seeing it. … It’s just, make the space for this whole color wheel.”

ROUGH: At the court, I remember I passed Lady Justice with her blindfold.

And as I’ve talked with Christian lawyers about this case, some told me the ideal is impartiality, not favoritism by race. Yet ignoring God’s design in making us different can also mean failing to see real challenges.

That moment in front of Lady Justice brought to mind a famous Supreme Court quote.

THOMAS: As Justice Harlan proclaimed in dissent in Plessy v. Ferguson, our Constitution is colorblind and neither knows nor tolerates classes among citizens.

EICHER: Justice Clarence Thomas again. Of the three justices who wrote concurring opinions, he’s the only one who read aloud from the bench. He echoed the chief justice in calling racial preferences in admissions a zero-sum game.

THOMAS: Every time the government uses racial criteria to bring the races together, someone gets excluded … and the person excluded suffers an injury solely because of his or her race.

He said skin color doesn’t define viewpoints.

THOMAS: The racial boxes into which universities place applicants are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. That is decidedly false and dehumanizing.

And remedial measures once permissible, he said, no longer apply.

THOMAS: Today’s 17-year-olds, did not live through the Jim Crow era. They did not enact or enforce segregation laws or take any actions to oppress or enslave victims of the past. Whatever their skin color … they do not shoulder the moral debts of their ancestors.

Not all the justices agreed. Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented, arguing the Court ignored the 14th Amendment’s history.

ROUGH: The majority did leave one opening. Chief Justice Roberts said universities could consider an applicant’s story—but not their race alone.

ROBERTS: We do not suggest today that universities must ignore an applicant’s discussion of how race affected his or her life be it through discrimination, inspiration, or otherwise.

Barry McDonald is a constitutional law expert and professor at Pepperdine University law school. He says the essay exception could open the door to more racial gamesmanship.

MCDONALD: So it’s just really messy how this is going to work. …

Counselors are going to tell prospective applicants to just write essays talking about their racial and ethnic experiences and how they attempted to overcome that. So I think there’s going to be a lot of litigation about this where you’re probably going to have plaintiffs coming in and saying that university was putting way too much weight on life experiences and not enough on raw academic indicators.

But raw academic indicators are not as race-neutral as they might appear. Empirical data show that whites and Asians perform better on tests because they tend to come from wealthier households. Money can buy things like tutors and prep classes. Also, schools consider other factors, from athletics…

MCDONALD: If you can throw a good curve ball …

… to legacy admissions.

MCDONALD: You can no longer take into account race in college admissions, but you can continue to grant all this legacy, which is affirmative action for rich kids.

ANDERSON: Did your parents go to Harvard? Did their parents go to Harvard? Then you get extra points.

That’s David Anderson, an author and the pastor of Bridgeway Community Church in Maryland. He points out the Bible says there’s only one race, the human race. Yet he says the sin we know as “racism” is assigning value to people based on color or ancestry—and that sin still lingers. His own family lived under segregation.

ANDERSON: Did my parents go to Harvard? My mom grew up in Mississippi. She’s 89 years old. She remembers when you couldn’t drink water from certain water fountains. She never got a degree. … My mom and my mom’s mom, they never had a chance to start legacy.

EICHER: Clarence Thomas lived his own version of that story. He was admitted to Yale Law School in 1971, during a period when the university was putting in place an affirmative action policy. Thomas conceded that while it helped him access an elite education, it also cast a shadow of doubt on his accomplishments, as he explained in a memoir.

THOMAS: Now I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated and desperate.

A friend, economist Glenn Loury, explained further in a P-B-S documentary on Justice Thomas’s life.

LOURY: He thought that his degree was devalued, that he didn’t get the same kind of cachet out of the degree once he was looking for a job and trying to move in his career. He assumed that others were assuming that it’s a Yale law degree but with an asterisk next to it.

In his career in government, going back to the Reagan administration when he served as chairman of the Equal Employment Opportunity Commission, Thomas repeatedly criticized racial preferences. Instead, he promoted the “O” in EEOC: opportunity, not equal results.

THOMAS: Where you do run into the conflict is when you have a system set up under the guise of affirmative action that is called preferential treatment.

And in the summer of 2023, when the Court struck down the admissions programs at Harvard and North Carolina, Thomas finally saw that principle prevail. After decades of dissents, Thomas closed his concurring opinion by pointing to the promise of the 14th Amendment.

THOMAS: The equal-citizenship guarantee codified in the Fourteenth Amendment made us all citizens of one nation, governed by one Constitution. The Court today lives up to the promise of the second founding and ensures that the promise of equal citizenship continues to be fulfilled.

ROUGH: Justice Thomas’ story has come full circle. But the debate over affirmative action continues. And legal challenges are still emerging.

That’s this week’s Legal Docket.

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