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--:-- Noel King: 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.
--:-- Noel King: 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.
--:-- Noel King: The court's ruling is, of course, not confined to those two schools, but will affect many colleges and universities in the U.S.
--:-- Noel King: The justices voted 6-3 along ideological lines, with Chief Justice John Roberts writing the majority opinion and Justices Sotomayor and Kagan dissenting.
--:-- Noel King: Justice Ketanji Brown-Jackson dissented in the UNC case and recused herself on Harvard, where she was on the board until recently.
--:-- Noel King: Coming up on Today Explained, a ruling that overturns decades of past precedent and where college campuses go from here.
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--:-- Noel King: It's Today Explained.
--:-- Noel King: I'm Noel King.
--:-- Eric Hoover: The Supreme Court has considered race-conscious admissions several times in the past and preserved it with some nuances and some exceptions.
--:-- Eric Hoover: So today's ruling is a break with decades of precedent.
--:-- Eric Hoover: Affirmative action refers to policies and practices, designed to promote opportunities for members of historically underrepresented groups.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: And then, just a few years later, President Lyndon Johnson signed another executive order expanding on Kennedy's order.
--:-- Eric Hoover: You do not take a person who for years has been hobbled by chains and liberate him, bringing up to the starting line of a race and then say, you are free to compete with all the others.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: OK, so how is affirmative action used right now today in the case of colleges and universities?
--:-- Eric Hoover: Right, I'll just throw in another term here, and that is race-conscious admissions policies, evaluations of college applicants that take their race and ethnicity into account.
--:-- Eric Hoover: Admissions decisions don't just boil down to ACT and SAT scores and high school grade point averages.
--:-- Eric Hoover: It's also, on some level, an inquiry into who a student is, the opportunities he or she has had, and perhaps the barriers and challenges that they might have faced.
--:-- Eric Hoover: So not just their achievements matter, but the context for those achievements.
--:-- Eric Hoover: And for all of us, I think it's fair to say race is a part of our context.
--:-- Eric Hoover: But we would assume all of those applicants believe themselves to be qualified in some way or another.
--:-- Eric Hoover: Yeah, I think you raised a super important point here that often gets overlooked.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: When did the Supreme Court enter stage left, as it were?
--:-- Eric Hoover: 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.
--:-- Eric Hoover: Here's the story real quick.
--:-- Eric Hoover: Alan Bakke was a white man who twice applied for admission to the University of California at Davis's medical school.
--:-- Eric Hoover: He was rejected both times.
--:-- Eric Hoover: And key fact, back then, the medical school reserved 16 of its 100 spots in each year's entering class for qualified minority applicants.
--:-- Eric Hoover: And this was part of the university's affirmative action program and strategy.
--:-- Eric Hoover: And it said at the time that the purpose was to redress longstanding unfair minority exclusions from the medical profession.
--:-- Eric Hoover: 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
--:-- Eric Hoover: So the legal question was, did the University of California at Davis violate the 14th Amendment's equal protection clause?
--:-- Eric Hoover: And there was not a single majority opinion in this case.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: And Powell, character that he was, joined that opinion as well, and he wrote that the use of race was permissible.
--:-- Eric Hoover: In a flexible program designed to achieve diversity, but it is only one factor weighed competitively against a number of other factors deemed relevant.
--:-- Eric Hoover: In other words, it was okay as long as race wasn't determinative
--:-- Eric Hoover: And it wasn't used in too rigid of a way.
--:-- Eric Hoover: But yes, colleges can consider an applicant's race in this holistic way.
--:-- Eric Hoover: So racial quotas are a bridge too far.
--:-- Eric Hoover: Race can be considered, but you can't set seats aside for racial minorities.
--:-- Eric Hoover: And then where does affirmative action and the Supreme Court go from there?
--:-- Eric Hoover: The next big deal is a case in Michigan back in 2003.
--:-- Eric Hoover: There were two lawsuits filed against the University of Michigan at Ann Arbor.
--:-- Eric Hoover: And at the time, starting in the late 90s, the University of Michigan used a point system.
--:-- Eric Hoover: And you got 20 points if you were a member of an underrepresented minority group.
--:-- Eric Hoover: So in the end, a 6-3 majority ruled that Michigan's admissions policies did not allow for the individual consideration of each applicant.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: This was too automatic, too mechanized to pass constitutional muster.
--:-- Eric Hoover: But there's a second case, and this was the Grutter case.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: And so the court found that the law school's race conscious admissions program does not unduly harm non-minority applicants.
--:-- Eric Hoover: So, again, you have an example of what was not OK to do and an affirmation of how colleges could continue to consider race in admissions.
--:-- Eric Hoover: OK, this is interesting.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: Then we get to Fisher v. University of Texas in 2016.
--:-- Eric Hoover: Tell us who Abigail Fisher was and what the crux of that case involved.
--:-- Eric Hoover: Abigail Fisher was a white student who applied to the University of Texas in 2008.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: But Texas rounded out the rest of its class by using an admissions policy that did consider applicants race and ethnicity.
--:-- Eric Hoover: So she wasn't in the top 10%.
--:-- Eric Hoover: She applied for admission, and she was denied.
--:-- Eric Hoover: She would have been in the pool where race and ethnicity came into play.
--:-- Eric Hoover: She argued that the university's use of race in the admission process violated the equal protection clause of the 14th Amendment.
--:-- Eric Hoover: 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 Backey or in the Michigan cases.
--:-- Eric Hoover: And so she lost and University of Texas prevailed.
--:-- Eric Hoover: And it was a surprising case at the time.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: OK, so up until this point, it sort of seems like affirmative action is safe.
--:-- Eric Hoover: And that brings us to the present day.
--:-- Eric Hoover: Tell me about these two new cases that the Supreme Court has just weighed in on.
--:-- Eric Hoover: So this is a group of plaintiffs known as Students for Fair Admissions.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: Asians should be getting into Harvard more than whites, but they don't because Harvard gives them significantly lower personal ratings.
--:-- Eric Hoover: Harvard ranks Asians less likable, confident, and kind, even though the alumni who actually meet them disagree.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: The assumption that race necessarily informs something about anyone's qualifications is antithetical to this court's precedence and to our Constitution.
--:-- Eric Hoover: And so here we are, deja vu all over again.
--:-- Eric Hoover: These are very similar arguments that have been made before.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: Students for fair admissions in this lawsuit are led by a longtime opponent of affirmative action named Edward Bloom.
--:-- Eric Hoover: Can you tell me about how he fits into all of this?
--:-- Eric Hoover: 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.
--:-- Eric Hoover: So who is this guy?
--:-- Eric Hoover: Well, he's a conservative activist, and previously he has opposed key voting rights protections for minorities.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: His main argument is, again, echoing arguments that 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.
--:-- Eric Hoover: And he believes that race has no place in evaluations of applicants.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: Edward Bloom's arguments sound like the same arguments that have been made before the Supreme Court in the past and that have failed.
--:-- Eric Hoover: Why do you think this case succeeded?
--:-- Eric Hoover: Yeah, well, I think, as is often true in life in the universe that we live in, timing is everything.
--:-- Eric Hoover: The core of the arguments that have propelled the lawsuits against Harvard and UNC here aren't new.
--:-- Eric Hoover: But the ideological balance of the Supreme Court has shifted since the last round.
--:-- Eric Hoover: As we know, President Donald Trump appointed three conservative justices to the court during his time in office.
--:-- Eric Hoover: Now there's a solid 6-3 conservative majority.
--:-- Eric Hoover: And not just a conservative majority, but a deeply conservative one.
--:-- Eric Hoover: So, you know, previously the Supreme Court has upheld the limited consideration of race and admissions by the narrowest of majorities.
--:-- Eric Hoover: And then today, given the conservative leaning of the court, Ed Bloom seems to have finally found a more receptive audience with the justices.
--:-- Eric Hoover: This will have wide-ranging effects across American higher education.
--:-- Eric Hoover: 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.
--:-- Eric Hoover: Well, the Supreme Court has now said you cannot consider race in any way, shape or form.
--:-- Eric Hoover: And if you do, you'll be violating this ruling and the U.S. Constitution.
--:-- Noel King: Coming up after the break, where do colleges and universities go from here?
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--:-- Noel King: We should never allow the country to walk away from the dream upon which it was founded.
--:-- Noel King: That opportunity is for everyone, not just a few.
--:-- Noel King: We need a new path forward, a path consistent with the law that protects diversity and expands opportunity.
--:-- Noel King: So today I want to offer some guidance to our nation's colleges as they review their admission systems after today's decision.
--:-- Noel King: Guidance that is consistent with today's decision.
--:-- Noel King: 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.
--:-- Julie Park: It's Today Explained.
--:-- Julie Park: 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.
--:-- Julie Park: My name is Julie Park, and I'm an associate professor in the College of Education at the University of Maryland, College Park.
--:-- Julie 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.
--:-- Julie Park: And what did Harvard want out of this trial?
--:-- Julie Park: 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.
--:-- Julie Park: Some states at this point have already banned race-conscious admissions policies.
--:-- Julie Park: What happens when that happens?
--:-- Julie Park: What we have seen in a number of states that banned these types of policies were really drastic drops in African American and Latinx student enrollment.
--:-- Julie Park: That's what we've seen in states like, you know, California, Michigan, Texas, etc.
--:-- Julie Park: In 1996, California voters approved a ballot initiative, Proposition 209.
--:-- Julie Park: It said that race, ethnicity, and sex could not be used in hiring or admissions decisions at state institutions, including colleges and universities.
--:-- Julie Park: The result, a dramatic drop in the number of underrepresented minority students.
--:-- Julie Park: There are a lot of smart kids in this country, And there are very, very, very few selective schools.
--:-- Julie Park: And so if everybody is qualified, it could be one or two factors that put a particular student over the edge.
--:-- Julie Park: Schools still want diversity.
--:-- Julie Park: And so how will they get it now?
--:-- Julie Park: I mean, I'm hoping they're going to pull out all the stops.
--:-- Julie Park: And so they're going to try to expand their outreach to groups that have been historically underrepresented.
--:-- Julie Park: 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.
--:-- Julie Park: And so I think they are going to invest additional resources.
--:-- Julie Park: 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.
--:-- Julie Park: And so that might be things like prioritizing recruited athletes who tend to be disproportionately white.
--:-- Julie Park: 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.
--:-- Julie Park: It also, for large public institutions, it might influence, or I hope it will influence, how they recruit out of state.
--:-- Julie Park: 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.
--:-- Julie Park: And so that's a practice.
--:-- Julie Park: 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.
--:-- Julie Park: So are they going to pull back on some of those practices that undermine equity?
--:-- Julie Park: I think those are pretty low-hanging fruit.
--:-- Julie Park: But what are they actually going to do?
--:-- Julie Park: We will see.
--:-- Julie Park: 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?
--:-- Julie Park: Yeah, I think so.
--:-- Julie Park: I mean, I don't see how they couldn't.
--:-- Julie Park: How much of the impact is that going to have?
--:-- Julie Park: Like, is that going to open up a ton of seats that are necessarily going to go to students who have been historically underserved?
--:-- Julie Park: I'm not sure, right?
--:-- Julie Park: Admissions is not a formula where it's like, oh, you take this group out, you swap this group in, etc.
--:-- Julie Park: But, you know, any bit helps.
--:-- Julie Park: 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.
--:-- Julie Park: Your side did not win in this case, and there will be some significant changes as a result of the decision handed down today.
--:-- Julie Park: Where do you think we go from here?
--:-- Julie Park: 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.
--:-- Julie Park: 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.
--:-- Julie Park: 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.
--:-- Julie Park: 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, what does the entirety of this country need?
--:-- Julie Park: And so the ruling may be a setback, but from there, I think the commitment has not been eroded.
--:-- Julie Park: I think from the civil rights community, what we're hearing very much is this kind of call of, we won't go back.
--:-- Julie Park: 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.
--:-- Noel King: Earlier in the show, we heard from Eric Hoover at the Chronicle of Higher Education.
--:-- Noel King: Today's show was produced by Avishai Artsy and edited by Matthew Collette.
--:-- Noel King: It was fact-checked by Laura Bullard and engineered by Patrick Boyd and Michael Rayfield.
--:-- Noel King: I'm Noelle King.
--:-- Noel King: It's Today Explained.
--:-- Noel King: Thank you.
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