Joe Selvaggi speaks with Thomas A. Berry, research fellow at Cato Institute’s Robert A. Levy Center for Constitutional Studies; they explore the implications of the U.S. Supreme Court’s recent ruling in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, how it mostly bars race as a factor in determining who gets admitted to college, the sharply contrasting views of American history the decision exposes, and what comes next for colleges seeking to ensure diverse enrollments.
Thomas A. Berry is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was an attorney at Pacific Legal Foundation and clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. His areas of interests include the separation of powers, executive branch appointments, and First Amendment freedom of speech. Berry’s academic work has appeared in NYU Journal of Law and Liberty, Washington and Lee Law Review Online, and Federalist Society Review, and other publications. His popular writing has appeared in many outlets including The Wall Street Journal, USA Today, CNN?.com, National Law Journal, National Review Online, Rea?son?.com, and The Hill. Berry holds a JD from Stanford Law School, where he was a senior editor on the Stanford Law and Policy Review and a Bradley Student Fellow in the Stanford Constitutional Law Center. He graduated with a BA in liberal arts from St. John’s College, Santa Fe.
Read a transcript here:
Joe: This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. Does our nation’s Constitution require laws to be colorblind? Since the ratification of the 14th Amendment in 1868, the Supreme Court has said yes, but with some very narrow exceptions. One of those exceptions has been in the case of higher education admission standards, where consideration of race, its advocates assert, facilitates a more diverse and thus better learning experience. To challenge that exception for education, an Asian student organization called Students for Fair Admissions took its case to the district, circuit, and ultimately the Supreme Court, where it challenged and won its case against Harvard University and University of North Carolina, convincing the court that the universities failed to demonstrate that the benefit of racial diversity outweighs the harm caused to those less favored. The majority in the case decided that though universities can continue to strive for a diverse student body, race cannot be one of the criteria on which to base that diversity. While court watchers were expecting wide differences of opinion amongst the nine justices, the six opinions written in over 237 pages reveal deep divisions in the Supremes’ perception of the role of race in modern American society. To wit, the majority decision, written by Chief Justice Roberts, makes clear that “at the heart of the Constitution’s guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial class.” By contrast, the dissents written by Justice Sotomayor and Jackson assert that the majority’s decision “cements a superficial role of color blindness as a constitutional principle in an endemically segregated society where race has always mattered.”
On what principles and precedents are each side of this decision resting? And what can Americans learn from this case about the meaning of equal protection under United States law?
My guest today is research fellow at Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor in chief of the Cato Supreme Court review, Thomas Berry. Attorney Berry will review the details of the Students for Fair Admissions case and share his views on the foundations on which this case was argued, interpreting how and why the majority and its consenting opinions differ so markedly from those in the dissent. We will discuss the implications of the results of the case for future admission committees and consider constitutionally viable alternatives to race focus selection in the future. When I return, I’ll be joined by Cato research fellow and constitutional scholar, Attorney Thomas Berry.
Joe: Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi and I’m now pleased to be joined by research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor in chief of Cato Supreme Court review, Thomas Berry. Welcome back to Hubwonk, Tommy.
Thomas Berry: Thanks for having me.
Joe: Well, I appreciate you being on the show. This is a big week for constitutional scholars like you, so I’m very grateful for your time today. We’re going to be talking about the Students for Fair Admissions versus Harvard case along with the UNC case decided last week in a 6-3 decision. I’ve had the opportunity to read all 237 pages, I think that was my count. But, of course I’m looking at it with through a lay person’s eyes. The majority again — I’ll give you some background for our listeners — the majority was written by Chief Justice Roberts and the dissent by Justice Sotomayor. I recommend all our listeners take the time to read the decisions for me it lays bare the in plain terms two completely different views on race on the Constitution on what constitutes precedent, the values and goals of affirmative actions all that stuff. It’s worth your time so please read it, but let’s start for the benefit of our listeners let’s start at the beginning. Who were the plaintiffs or what were the plaintiffs in this case. It was students for fair admission. What were they arguing in front of the court?
Thomas: It was a group that had several members and essentially the members who claimed that they were harmed were applicants to Harvard or to UNC who were rejected. And in particular they focused on applicants of Asian American descent, who argued that on the basis of their race, they had significantly lower odds of being admitted to these institutions than they would have had if they were other races. And so, they focused on the particular statistics of admissions. One of their key statistics that they brought to the court’s attention was the admission odds of various races based on academic decile. So, I don’t remember the exact statistics offhand, but it would be something like, you know, an African American in the top decile had say, a 95% chance of being admitted to Harvard, and Asian American in that top decile might have only a 50% chance of being admitted. And so, their argument was that race plays a significant factor in many admissions decisions, that it’s often determinative of these decisions, and that that violates the law and in terms of how it violates the law it’s slightly different in the two cases. For UNC, which is a public institution, they argued it violates the 14th Amendment, and then for Harvard, which is a private institution, they argued it violates Title VI of the 1964 Civil Rights Act.
Joe: Okay, I want to go deeper on this so let me paraphrase what you’re saying, given that this assumed it’s a zero-sum game, meaning Harvard and UNC have a fixed number of people they admit, meaning that every time you favor one group you disfavor another group and the statistics in the case of the plaintiff support their view that one group was discriminated in favor of a different group. So, let’s go back and rather than assess whether what we’ll call affirmative action is a good idea or a bad idea as some normative thing we want to want to make sure it comports with the strictures of our Constitution. That’s what the Supreme Court’s there for. Is it constitutional? That’s what we’re deciding. A little bit of a history lesson, our listeners know about the Bill of Rights, you mentioned the 14th Amendment, given some historical context that came we call those are Civil War amendments. Give our listeners a little background on how the 14th Amendment is the foundation for this entire debate.
Thomas: Sure. So, the three reconstruction amendments, the 13th, 14th, and 15th, all enacted shortly after the Civil War, during the period of Reconstruction in an attempt to bring the South back into the U.S. and to once and for all prevent not just slavery, but also the extreme subjugation of African Americans in the South, the 13th Amendment banned slavery, the 14th Amendment has several key provisions, it guarantees the privileges or immunities of citizens guarantees due process of law for all persons, and it guarantees the equal protection of the law for all persons, and crucially it guarantees it at the state level, whereas previously every constitutional amendment had only applied at the federal level, and then 15th Amendment guaranteed the equal right to vote, not discriminated on the basis of race. So, the 14th Amendment’s Equal Protection Clause — one of the key historical debates is how broad is this meaning. It’s undisputed that the most direct problem they were trying to solve was racial subjugation, the subjugation of African Americans in the South, you know, rampant lynchings with no legal recourse, but the text isn’t limited to race-based protection. It simply says equal protection period. And so, the standard view, the view that’s come to be accepted, is it applies not just to race-based discrimination, but all sorts of discrimination, gender-based, basis of parentage country of origin, etc.
Joe: So, to be clear, as you say, the historical context is it was immediately following the Civil War, we had the stain of slavery, this was the 13th Amendment did away with slavery and the 14th Amendment said look, you have to apply your laws in your state, we are the federal government, but in the state laws have to apply equally to all people, regardless of race,” —was there any mention of race meaning did it say, did it mention, as we do now, the whole host of different race categories or did it simply say “equal is equal.”
Thomas: It doesn’t list race at all, no categories, no definition about how you draw the line you know who’s in what race and etc. simply says equal is equal, and that’s oftentimes the shorter a law is the more debate there’s going to be about what it does, and that’s been the case for the Equal Protection Clause. And of course now one of the key debates is, everyone agrees it has a non-discrimination principle, but the reason affirmative action is a hard case is, what if that so-called discrimination — what some view as discrimination — is for an anti-subjugation purpose? And that just wasn’t so as much on the radar at the time it was drafted because the key problem was the subject, stopping the subjugation of African Americans in the South.
Joe: Right, so it said discrimination didn’t say whether it’s for good or for bad, it just said it’s all it’s all bad, but let’s stick to our history lesson and go back to post-Civil War. Naturally, many of the states in the South that didn’t sit well treating everyone equally. So, despite these well intended and well, I don’t know if you’d say well-written amendments, they were written and ratified. Did everyone following the Civil War in the Southern states get treated equally? How did that work out?
Thomas: No, far from it. You know, a parchment guarantee is just that, a parchment guarantee and you need a government that actually enforces that guarantee. And for many decades, the federal government essentially abdicated from any role of actually enforcing equal protection in the states and there was once Reconstruction ended and the federal government pulled out, there was pretty rampant and horrible subjugation, unequal treatment, segregation. The Supreme Court to its discredit upheld segregation as, as you know that said separate but equal is still equal under equal protection. And so, it wasn’t really until the 1950s and the 1960s that the federal government and the federal courts started getting serious about enforcing these provisions, both in the courts and also through federal legislation.
Joe: I think this is important, because without giving a complete legal lesson to our listeners, what we’re talking about is Plessy versus Ferguson which said look equal might mean separate but equal as long as both races are provided the same stuff. I mean I think in that case it was railroad cars as long as one railroad car was as nice as the other, there was no real problem with having a whites-only and blacks-only car. That lasted for 50 years, right, until the court or the nation came to its senses and said, categorically, from experience, separate isn’t equal separate water fountains or whatever, lunch counters, it’s an abomination and a violation of constitutional principles when we had then ultimately Brown versus Board of Education, to me this is sort of an important analysis or distinction which is we had separate but equal, or we had separate and it was inherently Brown overturned that. What would you say now in modern times this forbidding separateness, where is that taking us now? Where is Brown and how does that shed light on what we’re going to be talking about today?
Thomas: Well the key, the key debate or the key controversy I would say is did Brown enact a principle of color blindness, or did it enact a principle of what some would call anti-subjugation, or bringing equality of outcome? So, one point of view is that it simply said treat everyone equally doesn’t matter whether they’re starting on a worse footing or on a better footing, just don’t look at race when you are accepting people to a school, giving them provisions, whatever. Just ignore it, that’s not what you should be dividing people by. Whereas another point of view says that the reason Brown v. Board of Education was important is because blacks were so much worse off, in fact their standards weren’t equal, they were much worse, and that you have to, to really achieve equal protection, you have to have your eyes open to: Is one race being treated worse off than other in society as a whole, and if they are, you might have to take remedial measures to bring them to a position of equality. So, these are the competing views of what is Brown’s real legacy and what was its real constitutional holding.
Joe: It’s interesting to me that constitutional scholars — again we’re going to talk about the decision — come down completely differently whereas essentially Brown said, you can’t segregate, you can’t discriminate on baseless of race. Some would say that’s an affirmative requirement to positively or affirmatively integrate meaning you can’t merely not segregate you must affirmatively integrate, and I think that informs what we’re going to be talking about today which is that in some special cases the Constitution does allow race to be considered, if it’s important enough I guess I’ll use those lay terms. Describe for our listeners, when has the court said okay look the Constitution is colorblind full stop, but there are times when you may discriminate. Share with our listeners either you know whether it’s directly relevant to the case or other cases where the Supreme Court said discrimination is okay.
Thomas: Only two so far. So, this is the doctrine known as strict scrutiny; it comes up in a lot of different doctrines, First Amendment as well. It’s the notion—it kind of comes from the same idea that the Constitution is not a suicide pact, that every rule no matter how strict and how categorical it might be phrased, hypothetically there could be such a compelling government interest that you have to at least temporarily override that right for another interest that is so much — at least at that moment — so compelling that it that it necessitates briefly overriding it. But courts have had a very, very high bar for showing that government interest; so far, the two cases where courts have allowed race-based, distinct taking account of race and discrimination — one is in the prison setting. If there is an ongoing risk of a race riot, courts have okayed segregating prisoners by race, but only temporarily as long until the unrest ends. And the other is in the affirmative action / educational context, which is most relevant here. In a case called Bakke, and then more explicitly in a case called Grutter, the Supreme Court said that for the purposes of having a diverse student body, and for the purposes of the educational benefits that come from diversity, you can take race into — as one factor — into account in admissions decisions to ensure that students who go to it who attend that educational institution are exposed to diverse racial viewpoints and perspectives.
Joe: And so in Grutter we’re saying that there’s a, a compelling interest, meaning there is a benefit, a deep benefit to integrating, as I mentioned before, it’s an affirmative requirement that your education is better if you’re racially diverse. Ergo, we will also discrimination in this case because the benefits are so obvious. Are there limits to — in the Grutter case, when it was decided, was it said “OK, you’ve now got a blank check,” or did the Court acknowledge that this was potentially fraught with risk, or a dangerous decision or precedent?
Thomas: It was very well aware of the fact that this could go too far and in fact on the very same day Grutter was decided there was another case, Gratz, where they struck down an affirmative action program because they thought it was too quota-like. So, they’ve essentially said it can’t be mechanical, you can’t say, you know, every year we’re going to admit the top 500 African Americans, the top 3,000 whites, you can’t be that — you can’t categorize people that numerically and just say top X number gets admitted it has to be just one factor in a holistic review of each individual applicant. Now this has caused a lot of confusion because in effect, you see schools that keep having the same racial breakdown year after year. So, it looks an awful lot like they’re tweaking their holistic review to hit rough quotas if not exact quotas, but the Supreme Court at least said in Grutter, it has to be person by person, not quota based.
And they also said, and this is one of the key points that came up here, that this can’t just go on forever with no endpoint in sight, that the goal has to be reaching a point where affirmative action is no longer necessary and you have a diverse student body without any benefits. And so there is language in Grutter that said you have to constantly reevaluate, see are you making progress, and we hope and expect that 25 years from now this will no longer be necessary, and there is a dispute of was that a time limit or was that just wishful thinking?
Joe: Yeah, well clearly Harvard thinks it was just wishful thinking because — and so I’m saying with UNC — they’ve made no case to say that we’re moving in the right direction meaning we’re moving away from using race as a criteria, now 20 — so if you consider their making decisions on who come to Harvard in the fall when they graduate it will be 25 years since Grutter was decided so let’s let’s jump to the you know I don’t want to bury the lead here let’s talk about the case itself. It came down six to three, I don’t want to say along party line some of my guests, perhaps you as well don’t see a distinction between right and left but you know many different criteria for evaluating how judges decide but Justice Roberts wrote the decision with concurrence from Justice Thomas, Gorsuch, and Kavanaugh and Justice Sotomayor wrote the dissent with concurrence, I think you call concurrence dissent concurrence —
Thomas: Just another dissent.
Joe: Just another dissent, okay, with Justice Jackson. From my perspective it lays bare very, very different world views. You know one that says, you know I’m going to paraphrase the particularly the dissent and their uneasiness with the decision I think I’ll paraphrase and say, in a world where there’s no racism, and we are colorblind then sure no, no racial preferences are needed. We don’t live in that word, they’re absolution needed, and not only are they constitutionally OK, but they’re morally required. I don’t know if that I’m putting words in your mouth but let’s start with what the court found in this decision, clearly the headline is they struck down affirmative action. What’s the gist of their argument?
Thomas: Sure, well it’s a little hard to say, to what extent has the court changed its precedence versus is changing how it’s applying it. The court never comes out and says we’re overruling Grutter where blanket, not allowing affirmative action at all. All they explicitly held is that Harvard and UNC’s programs don’t meet strict scrutiny, but the test that they applied seems in practice an awful lot stricter and an awful lot harder to pass than the way the court applied that test in Grutter, so I think the conventional wisdom is that for all intents and purposes, Grutter has been overruled even if the Court wasn’t willing to go so far and say that explicitly. They essentially held that it was impossible to have objective standards, just how much racial diversity is necessary to meet the educational goals, how would you tell the difference between sort of the benefits of diversity, the benefits of viewpoints, how would you tell is this paying off or is this not paying off? And they said in every other context of strict scrutiny, you have explicit metrics for did this work or not, you know for the race riots did we save, did we save people from injury or not? You can at least do that, have that test. They also pointed out that the distinctions often seem a bit arbitrary and vague, you know, Asian Indians and East Asians are all lumped together as just Asians, Hispanic is a huge category that extends from people from Spain and Portugal to people form South America and people from the Caribbean, and all sorts of distinctions. People from the Arabian Peninsula are often just categorized as white, so a lot of people in the same category might lend diversity, a lot of people in different categories might not lend diversity. So the Supreme Court said this just isn’t a plausible dividing line. And then finally they focused on timeline, and they said, you haven’t given us any action plan for how you’re going to be reducing this from one year to the next, and eventually reaching zero. And so, they said Grutter required you to have some action plan for reducing it at a distinct and sort of clip where this isn’t just going to go on for another century.
Joe: And again, of course, these are research institutions that make the assertion that says there’s a tangible educational benefit to diversity, and — but they can neither define what the harm is from, let’s say, a less-diverse classroom and measure the educational benefit, not to the individual students but to the education institution itself test grades go up because you have a more diverse class, setting aside that we’re talking about just race not diversity of any other category not diversity of religion or nationality or even region, just the color of your skin, that alone enhances the educational outcome of everybody in the classroom. Has any evidence been put forward that diversity has a measurable benefit?
Thomas: I wouldn’t feel comfortable saying for sure. I know there was a ton of research thrown on both sides of the opinions and I would encourage folks who really want to dig into this, read all the opinions and look at all the papers that are cited, I will say that Justice Thomas had a strong cited research that has shown, in fact, it can sometimes be harmful to the those the beneficiaries of affirmative action, that essentially there might be an institution that’s not the best fit for them and where they’re not going to thrive as much. So, he’s held that view for a while. Justice Sotomayor very strongly opposed that viewpoint and claimed that that research has been debunked so that’s an ongoing debate. One of the difficult things here is that schools aren’t very open with a lot of their data. They usually aren’t saying publicly, you know, what are the — how are people succeeding in our classes based on race. They don’t want to give that data or allow people to break it down. So, a lot of people have to use, kind of, side effects or second-order effects to try to guess what’s actually going on here. In general, we don’t see whether grades are say, going up or down, in more or less diverse institutions.
Joe: A lot of the headlines in the press, some of the hair-on-fire kind of assertions — I’ll put the dissenting justices on sort of pretty strong language in their dissent. I’m going to quote, just right now, Sotomayor’s, I believe, I hope I’m attributing this quotation to her, her outrage about this majority decision. I’ll quote: “Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.”
I want to point — to use that as saying, it’s saying that the Court is breaking with precedent. A lot is being made of that. Do you see this decision as a break with precedent or is it a continuation or redefinition of precedent?
Thomas: I see it as a break with the recent precedent. I see it as a break with Grutter and the Fisher case, which we didn’t mention yet, but that was essentially reaffirming Grutter about a decade later, in 2016. Now, whether that’s a good — now the harder question is, is this an affirmation of say Brown versus Board of Education, 50 years before that I think many people would say Brown had it right and the colorblindness principle that Brown discussed had it right, and that all of the more different of action cases, Bakke, Grutter, and Fisher were an aberration from that, but I do have to admit that I found the chief’s argument that we’re not overrruling Grutter somewhat somewhat implausible; at least the effects are going to be that programs are going to look very different now than they did before this decision, which, I mean, that’s one way practically speaking, that’s one way to define a change in precedent.
Joe: I found it interesting though in a sense, and again quoting the dissent, they’re saying look, in this case, discrimination based on race is justified benevolent or benign discrimination is okay, you know bad discrimination is bad, good discrimination is good. It’s interesting though, because the Court is saying, we’re going to give the power to the to discriminate to these respective schools, elite schools arguably. And I also found it interesting in the argument in the dissent, they justified giving the prerogative to discriminate to these schools, based on historical abuse, meaning, in the case of Harvard, they had a blatant discrimination, limiting the number of Jewish students they had in the early twentieth century. And in UNC’s case, they were so racist, you know, Klan members and they weren’t letting any black students in the university until 1955 and even then it was only a few. So, they’re saying because these schools have been so rampantly racist in the past, ergo, they should be given the prerogative to decide how to be racist in the future. Isn’t that, you know, logically inconsistent? Is anyone calling out this this detail?
Thomas: It’s interesting so the Supreme Court has said in the past you could perhaps put this as a third category of strict scrutiny and I’m not sure if they’ve defined it as this, that if you yourself have been the victim of racial discrimination then remedial matters for that is allowed so a particular person who can point to “I was discriminated against in X way by the government,” it’s allowed, it’s acceptable to have a government program that makes up for that specific act of discrimination. This is a much broader view of that that it’s not necessarily this particular person but a whole familial chain and Justice Jackson has a hypothetical about a person who you know has an African American in North Carolina whose family goes back six generations through slavery and at each step of the way they’ve been held back through discrimination and government policies, so her argument is that, of course, the most recent person in that chain of generations is going to be held back as a result of that, through no fault of their own. I would say that a lot of progressives think that the court’s turn towards diversity was an error of its own. In some ways both conservatives and progressives disliked it for different reasons, it kind of pleased no one. It was originally just Justice Powell was the only one of nine justices who thought it was a compelling interest on its own. They would have defined it much broader to remedy historical discrimination, and I think in both Justice Sotomayor and Justice Jackson’s dissents, you see that they side, they take that view as well, that really the Court should have long ago taken a much broader view of the benefits of affirmative action, not just for diversity, not just to have a better education for everyone there, but to remedy past discrimination. And it’s interesting rhetorically just how much their dissents focus on that notion of past discrimination and past oppression, rather than diversity.
Joe: Which wasn’t the issue at hand, right? They’re sort of trying to revisit an earlier case. They’re saying it should be to remedy past discrimination, but of course if we use — already Harvard and UNC could you know, again for the benefit of our listeners if one wants to assert that they’re 7th after a long line of you know chattel slavery and poor and had terrible poor upbringing in a terrible school district and all kinds of problems that’s part of an application independent of one’s race one can still assert and be admitted based on the fact that they overcome adversity that’s entirely legal. It’s just that it doesn’t make a generalization say all black people have experiences or all white people have had the benefit of, perhaps what a slave owner may have had 160 years ago. Isn’t that there the rub?
Thomas: It absolutely is still available and this is one of the most common arguments against affirmative action that you can still have admissions based on, you know, poverty based on adversity, even in the majority opinion, it says that you can admit someone if their essay talks about specific ways that they’ve overcome adversity because of their race. And this is what going to be one of the key points likely to be litigated going forward. In fact, Harvard issued a statement, less than an hour after the decision, highlighting that portion of the majority opinion, and saying we’re certainly going to comply with this, the implication being, we’re going to encourage everyone to talk about how, you know, they’ve overcome adversity because of their race. Justice Jackson in her dissent hooks on that as well and says this needs going forward, schools need to make use of that. Chief Justice Roberts in his majority opinion says “Hold on, you can’t just have an affirmative action program in all but name but hang your hat on these diversity statements; you can’t achieve what we just told you is unconstitutional through other means or by another name.” So, we’re probably not at the end of this. We’re probably going to have more litigation, especially if it seems like, in effect, the admissions procedures are producing the same results that they were previously.
Joe: So, ou anticipate my — we’re getting close to the end of our time together — my question, which is, given now that this has been handed down and people are thinking about it as I say I my email blasts, they didn’t send just one each dean of each school at Harvard emails to me saying, you know, “Don’t worry we’ve got this, we’re going to keep going as we were.” What, what do you think schools will do in light of this decision?
Thomas: Yeah. I think that they’re going to certainly perhaps make diversity statements mandatory and a lot of places they’ve been optional, but they may well move to making them mandatory. There may well now be much more coaching or much more explicit instructions for students to focus on to signal their race in their applications and to focus on specific ways that it’s impacted them or that they’ve had to overcome adversity because of that. And we’re going to have litigation. Again, part of the problem here is that a lot of these admissions decisions are made behind closed doors and not a lot is public. This little this case only arose after years and years of fighting for discovery of information that these schools wanted to keep secret about their processes and particular examples of debates they had about whether to admit someone or not. So, it’s going to be, I think schools going forward are going to know, you know, these conversations could eventually be on the record in court and that’s going to make it again trickier to explicitly take race into account. But what we might see, you know, I think the effect will be interesting to see. We’ve already seen affirmative action banned in some states through state initiatives in both California and Michigan, for example, we immediately saw a very different racial composition in a lot of their university demographic breakdowns. So, is Harvard immediately going to shift to look like those, or is it going to stay looking similar to how it has been? That’s a real open question.
Joe: It strikes me also in stark contrast, because this issue was in the courts, there have been a lot of polling going on it seems that Americans both Democrats and Republicans are uneasy about affirmative action in university they seem generally like a 70/30 preference to say schools should not use race as a criteria for admissions. We wonder, what’s motivating this sort of push to insist that race or race ratios or race quotas are so important? Again, this is a difficult question to ask but why is this, are we even pushing for this?
Thomas: I think I think it’s in it’s in good faith and I think just the view that Justice Sotomayor and Justice Jackson put forward very passionately is the view of a lot of people and especially a lot of people in university admissions and university leadership that’s a view that race does matter in daily life that even people born to relative wealth still face discrimination based on the color of their skin. And so, there’s a notion that nothing else can serve as a proxy for that.
I think it’s a genuine good faith disagreement about both the facts of how much does that matter in society and then the legal question of, even if it does, to what extent can we have reverse discrimination, as some people call it, to make up for that. Does equal protection clause mean equal treatment or equal results? So, it’s certainly a view held in good faith by a lot of university leadership, but the concerns against it are also held in good faith and I think in particular university leadership has not fully grappled with the harms against others who you really can’t say are in any kind of privileged position such as, you know first-generation Asian American applicants who are finding themselves not just at a lower chance against underrepresented minorities but at a lower chance of admission against whites. And that to me is very hard to justify when you’re you know, giving whites a boost up compared to the first-generation immigrant just based on racial composition.
Joe: But I think I hope we don’t bury that that they were the plaintiffs were advocating for the harm brought to Asian Americans students these are 17 year olds who are not guilty of anything I don’t think who scored high and all their, I guess there’s six criteria, and still didn’t get in you know what do you say to someone, as we’ll all acknowledge Asians also were subject to discrimination anti-Asian laws were among the or interning Japanese Americans, you know these are all horrible things were done to Asians. They certainly shouldn’t suffer from because they’re Asian when applying to universities. This seems like an absurd remedy to help people who may not have been hurt and hurt people who certainly did not hurt.
Thomas: I mean, you know, yeah, absolutely and I think this is a great example of strategic litigation and having a smart strategy, which is that because of that Asian American plaintiffs are simply more sympathetic with good reason than white plaintiffs, and in a lot of the previous cases we mentioned like Grutter, Fisher, and Bakke, the plaintiffs in those were all whites. And I think this is one of the — the SFFA, the group that challenged this — realized, you know, in a lot of ways, the treatment Asian Americans are having now, there’s a lot of echoes to the treatment that Jews had in the early part of the twentieth century, where quotas were capped on them, even though they were not in a position of privilege in society. So, in the court of a public opinion, who your plaintiffs are and what their life story is can matter.
Joe: Yeah, it really, it astonishes me that the court and I’ll just finish with the my final quotation from Justice Thomas talking about some Asian, I found it interesting and I’m trying to pique our
listeners interest in reading the decision. I’ll just quote from Justice Thomas: “So, Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.”
Joe: I don’t know how you could say it any more clearly than that, that I think distills it out and, you know, the view of the majority and you know again, as you say, I think we’ll give everyone the benefit of doubt. Both sides see the world very, very differently. These are all nine smart people at the top of their game. It’s amazing to me that this this this decision lays bare two completely different worldviews. I’ll give you the last word. You know, are we going to be remembering this is this going to be talked about, you know, months to come or is this going to just get obscured by the next controversial decision?
Thomas: Oh no, this is a big one. I think this is the biggest case of the term. I think people saw this coming from a mile away is the biggest case of the term and it lived up to that and the fact that the opinions went for 237 pages shows that the justices knew that this is probably going to be their last word on affirmative action for quite a while and this really is a sea change from the past 50 years going back to Bakke in the 1970s. And it’s been, it’s been de facto understood that affirmative action at least for the purposes of diversity was allowed in public institutions. I’ll say one very odd caveat: In a footnote, the court explicitly exempted military institutions. So, there’s not a lot of those, but there’s going to be litigation going forward about are they exempt as well the court just said, we’re not going to we’re not going to touch that they might have unique interests and diversity that other institutions don’t have. But for the rest of the higher education institutions in the country, this is likely to be a sea change and they’re all thinking right now about, are we going to resist this? Are we going to comply with this? Or what are we allowed to do going forward?
Joe: Ironically as a veteran, the Navy at least was very proud of the fact that nowhere in promotion applications is any mention of race anywhere so they’ve committed to literal color blindness and nothing else, so maybe things have changed but you know again, perhaps a podcast for another day. I appreciate you taking your time today in a very busy constitutional decision season. Thank you very much for joining me again, Tommy, you’re always a wonderful guest to have on the show.
Thomas: Oh, thank you very much for having me.
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