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Affirmative Action in College Admissions Eliminated by Supreme Court; Interview with "The Future of Affirmative Action" Author and Expert Witness for Students for Fair Admission Richard Kahlenberg; Interview with UNC Law Professor and UNC Burton Craige Distinguished Professor of Jurisprudence Michael Gerhardt. Aired 10:30-11a ET

Aired June 29, 2023 - 10:30:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:30:00]

DAVID CHALIAN, CNN POLITICAL DIRECTOR: So, this has been one of issues where Republicans believe, A, public opinion is on their side, but that it's not just the public opinion of a die-hard Republican base, but that they see it as an issue that also may benefit them, their position on it, with independent voters. And white suburban independent voters, specifically, that this is something where they think they can broaden beyond their base, and now they have a 6-3 court decision here to bolster that argument.

KATE BOLDUAN, CNN NEWS CENTRAL CO-ANCHOR: All right. David, stick with us. We're also getting -- there's a lot of reaction coming in, a lot of news coming in with regard to this very, very momentous decision coming down from the Supreme Court from our colleagues, Arlette Saenz and Kevin Liptak, over at the White House. They're reporting an administration officials says that the Biden administration from the White House to the Department of Education is now reviewing the affirmative action decision from the Supreme Court. You can be sure we're going to hear much more from White House and the Department of Education coming up on that.

But I want to get back over to Jessica Schneider. I was am seeing some notes, Jess, that Clarence Thomas was reading his -- from his concurring opinion from the bench, and now Sonia Sotomayor is reading from her dissent?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes, this is lasting a very long time. You know, just for the viewers at home, typically what happens when these opinions are released is the author of the majority opinion, in this case Chief Justice John Roberts, they'll read from the bench. The chief justice actually read for quite a long time from the majority opinion.

Then we heard from Justice Thomas reading his concurring opinion, because remember, he's been very outspoken against affirmative action for decades. He's been outspoken about it. He actually talked in his autobiography about how it affected him at Yale Law School. Saying that he really wasn't happy that his race, he believed, was such a factor in his admission.

But Justice Sonia Sotomayor, we understand, is now reading from the bench. She is reading her dissent. This is a very full-throated fiery dissent, where she is really lashing out at the court. You know, typically these dissents are respectful, and she still is respectful, but this is very disappointed, very angry in the way that this decision will really reverberate, she believes, to expand inequality. I'll read you a little part of her dissent here.

She says, 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. And then she goes on to say, and these are probably the most stinging words, because the court's opinion is not grounded in law or facts, and contravene the vision of equality embodied in the 14th Amendment, I dissent.

And her broad point here is that this decision is going to lead to the detriment of undergraduate education and then maybe the future of those students who may have gotten a better undergraduate education if affirmative action hadn't essentially been struck down as it has been today. So, she has a very biting dissent, very angry about what this decision will mean in the years and decades ahead for failing to erase racial inequality. She has maintained that race needs to be taken into account to create this diverse student body, to give people different racial backgrounds, a chance to get into a great school, perhaps an Ivy League school, and really try to change society in the process.

So obviously, the fact that these opinions are-- or these, the majority, the dissent, the concurrences, they are still being read from the bench just about 25 minutes after this opinion came out. It shows you all of the emotions that this case has elicited both from the conservative members who have voted to dismantle affirmative action, and then from these liberal justices who are, essentially, lashing out at this court's decision today. Guys.

JOHN BERMAN, CNN NEWS CENTRAL CO-ANCHOR: And Jessica, on that point, I want to read an excerpt, this is from Justice Ketanji Brown Jackson, the newest Supreme Court justice. This is on the North Carolina case, because remember, she recused herself from the Harvard case because of her association with Harvard. Justice Jackson writes, with let them eat cake obliviousness today, the majority pulls the rip cord and announces color blindness for all by legal fiat.

But deeming race irrelevance in law does not make it so in life. And having so detach itself from this country's actual past and present experiences, the court has now been lured into interfering with the crucial work that UNC, the University of North Carolina, and other institutions of higher learning are doing to solve America's real- world problems. No one benefits from ignorance, she writes.

[10:35:00]

Although formal race-linked barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways and today's ruling is going to make things worse not better. The best that can be said of the majority's perspective is that it proceeds, parenthetically, ostrich-like --

BOLDUAN: Wow.

BERMAN: -- from the hope that preventing consideration of race will end racism. Again --

BOLDUAN: Preventing consideration of race will end racism.

BERMAN: That is a dissent which Elie Honig, as we know, is something that justices in the minority like to put out there for posterity but that's it. It's for posterity at this point. What matters legally now is the majority opinion, that is the law.

ELIE HONIG, CNN LEGAL COMMENTATOR: Yes, that is the law, and dissents are, for the record, and sometimes dissents become majority opinions, as we're seeing here. There were decades worth of dissents in the prior affirmative actions that have now, essentially, become the majority view. These dissents though that I believe -- I guess, there's more than what Sonia Sotomayor's and then Jackson.

SARA SIDNER, CNN NEWS CENTRAL CO-ANCHOR: Sotomayor and Justice Jackson --

HONIG: There are --

SIDNER: I want to just quickly ask you.

HONIG: Yes.

SIDNER: Is that rare to hear Justice Sotomayor --

HONIG: It is.

SIDNER: -- speaking on this and coming out and saying, I'm going to read my dissent?

HONIG: Yes. They --

BOLDUAN: They do it on big cases.

HONIG: They do it on big cases.

BOLDUAN: When they want to be heard.

BERMAN: This is an apocryphal (ph) case.

HONIG: Yes.

BERMAN: These changes so much of American society and these justices want to be on the record.

HONIG: And there's an important echo in history here. If you look at Justice Sotomayor's dissent, she refers to Justice Thurgood Marshall. And what -- similar to the passage that you were just reading about this idea of, sort of -- you know, a blissful race neutrality, blissful race blindness. She quotes Justice Thurgood Marshall. And, by the way, not in his capacity as a justice. In his capacity before he became as a justice, as a leading lawyer for the legal defense fund. And she says that he, "Rejected the hollow race ignorant conception of equal protection." So, she says, Justice Thurgood Marshall, of course, was key behind Brown versus Board of Education before he was on the court --

BERMAN: As an attorney.

HONIG: As an attorney. Key in bringing board Brown versus Board of Education at this court. She says, nobody in our history would know and understand better than he. And he, decades ago, rejected this race neutral vision of the law.

SIDNER: Laura Coates, I want to ask you a couple of things. One, about Ketanji Brown Jackson. She basically said, the justices who decided this stuck their head in the sand when it comes to the reality of what race -- of what role race plays in people's lives. What do you think about her dissent, in particular, in the case that involves North Carolina?

LAURA COATES, CNN SENIOR LEGAL ANALYST, FORMER FEDERAL PROSECUTOR, AND SIRIUSXM HOST, "THE LAURA COATES SHOW": Well, I have to admit, I would have loved to have been a fly on the wall in the discussions that happen outside of the purview of the American public, because you can bet that it was as fiery -- this is what was reduced to paper. You can imagine the conversations before that.

Now, I think it's particularly impactful given that she is the only black woman to have ever served as a Supreme Court justice and much of the commentary and conversations even around her confirmation process had to do with maybe how she might rule on an affirmative action-based case, how she ruled on other cases before and beyond. But I just want to illuminate an issue for the public, because it seemed like a very basic concept, perhaps, to lawyers as to how a court would actually decide this issue.

It all comes down to the term called strict scrutiny which essentially says, if you have something like race, called a suspect classification. If race is an issue, we're going to make sure that there is something that's narrowly tailored to accomplish an end in a compelling interest of the government to actually continue with what they're doing. They used and applied that analysis in this instance. And spoke about what the motivation for having race as a basis for or a part of an admissions process and they tried to undermine each of those particular prongs as not being timely or necessary any longer. So, that's the legal framework here.

But it's hard to divorce oneself from the ideological framework that has been brewing for quite some time about the role of race in America. And remember, when we first talked about the equal protection in this country in the 14th Amendment, it was about trying to remove race as a determining factor in the treatment of other people. Obviously, harshly. Think about the timing of it. But now, it's being used, of course, the premise of it, used differently nowadays to talk about instead, well, I think we meant that race should never have been a factor where people have been treated badly. Well, that could be true, but it also does not do much as Justice Brown Jackson spoke about, the reality of race in this country today.

And that's the rub for these dissenting opinions compared to the majority. The idea of while we would endeavor to be a society, where race plays no factor in any aspect of our culture, conversation, constitutional mandates, there is a reality that is sad but perhaps true. And so, this rub was the tension that this dissenting opinion actually speaks about.

[10:40:00]

SIDNER: I want to just quickly read one -- a very powerful statement from Sotomayor because you mentioned 14th amendment, and so obviously did she. She said today, the court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the 14th Amendment is not only contrary to precedent and the entire teachings of our history. She goes to say, but is also grounded in the illusion that racial inequality doesn't exist.

I -- these are very strong statements from them. But they are the minority, it was a six to three vote. So, Elie, that says something as well. This is not five to four, this is not close. These dissenting opinions are strong, but the law of the land has been changed here.

HONIG: It has been changed, and now the law is that universities, colleges cannot consider race specifically and standing alone as a factor. Important to note, there is an interesting back and forth here, the majority, the six conservatives in the majority say, well, in some instances it can be fine for colleges in considering the whole of the applicant to look at, perhaps, an essay. How has race impacted this person's life?

But important to note, the dissent is not at all satisfied with that. There's a passage that jumped out from a -- from Justice Sotomayor's dissent, this is at page 47. Here's what she writes, this supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig. She argues, the dissent argues, that is not sufficient, that is not going to get the job done, but yes, this is the new law of the land, this is the majority, this is our Supreme Court.

BERMAN: I will tell you that universities around the country have been preparing --

SIDNER: Yes.

BERMAN: -- for this ruling, assuming something like this would happen, and some have already started to change some of their policies internally. One of the things we're seeing, Emerson College in Massachusetts, no longer considering legacy in admissions. What they're basically -- they were preparing and saying, look, if affirmative action is going to go away, if we can't consider race then we will not advantage legacy applicants who, depending on how far you go back, tend to be whiter --

SIDNER: They tend to be white, yes. BERMAN: -- tend to be whiter in that case. So, they're adjusting therein. We're also getting fresh reaction from Capitol Hill. Let's go right there. Manu Raju, what are you hearing?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes, actually the reaction, pretty much along straight party lines. Democrats reacting with some outrage. Republicans hailing this decision and praising what came down from this conservative majority on the Supreme Court.

Just a taste of what some of the members have said, it just didn't matter (ph) in the last few minutes. Chuck Schumer, the senate majority leader said that, the Supreme Court has been, "Giant roadblock on our country's march towards justice." He said, the consequences of this decision, he says, will be felt immediately among people applying in the next admissions cycle. And they'll have, in Schumer's words, fewer opportunities than their siblings did just years ago.

The Congressional Black Caucus which is, mostly, just Democrats in the house, Democratic caucus, members were African American in that Congressional Black Caucus, a very large block in that -- in the House said that, by delivering a decision on affirmative action so radical that to deny young people seeking education. They said that the Supreme Court has thrown into question its own legitimacy.

Now, Republicans have a much different view. Virginia Fox, the Republican who chairs the House Education and the Workforce Committee said that, no longer will academias, ivory towers be able to divide and promote preferences based on the color of one's own skin.

And we just got a comment from the Speaker of the House, Kevin McCarthy, who said that no American should be denied educational opportunities because of race. He goes on to say that, students will be able to compete based on equal standards and individual merit. And the college -- this will make the college admissions process fairer and uphold equality.

So, so much on Capitol Hill along the party lines, this is no different. This is a -- this major, major case that could upend how the selection process occurs in colleges and it could have a significant impact on diversity in those college campuses. The reaction on the Hill coming down pretty much along party lines. Democrats expressing grave disappointment. Republicans hailing it. Unclear whether there will be any sort of legislative action.

I talked to one Democratic Senator, Peter Welsh, just moments ago, about whether they'll keep things -- the Democrats in the Senate, where they control the majority there should try to move in any way to try to change -- to curtail this in any way. He said that it's really unclear what they could possibly do. Of course, they have to contend with the Republican House. So, unlikely, for any congressional action. But at the moment, Republicans hailing this decision, and Democrats are outraged. Guys.

BOLDUAN: Manu Raju continuing to get the -- some of the reaction from Capitol Hill. It really is just pouring in statement after statement I'm seeing now. Manu is going to continue working on that.

In the meantime, also joining us right now is Richard Kahlenberg. He's an -- he was an expert witness for students for fair admissions.

[10:45:00]

This is a group that involved in the lawsuits, the case brought against UNC and Harvard. And he is also a nonresident scholar, he -- at Georgetown University. Richard, your reaction to what you've been combing through this decision as well. What your reaction to what we have -- what we now know.

RICHARD KAHLENBERG, AUTHOR, "THE FUTURE OF AFFIRMATIVE ACTION", EXPERT WITNESS FOR STUDENT FOR FAIR ADMISSION: Well, thank you. Well, I'll emphasize, it's an early reaction. It's 237-page opinion and I'm still scanning through it. But I think the main point is that this is not the end of affirmative action, it's going to shift the basis of affirmative action from race to socioeconomic status.

And as a political liberal myself, I think that's a good thing. I mean, Harvard is majority-minority which is a very important thing, I'm glad that they are. But at the same time, they have 15 times as many rich students as poor students. And so, what's going to happen, I think, at most universities is they will, thankfully, not give up on racial diversity. It's extremely important to have racial diverse classes. That they will instead give a break to socioeconomically disadvantaged students of all races, and that's particularly going to help black and Hispanic working-class students who have been, essentially, shut out at places like Harvard and University of North Carolina.

At Harvard, 71 percent of the black and Hispanic and Native American students are from the richest, one-fifth of those populations. And so, we're -- to my mind, this is a conservative Supreme Court decision that will actually yield the number of liberal public policy results.

SIDNER: Richard, I do want to ask you quickly about the effect that banning affirmative action has had in places like California and Michigan, where they are really struggling now and have said over and over, look, this was put in place by voters. This was a different kind of way to put it in place. But since then, they have seen significantly lower numbers of black and Hispanics, particularly attending their colleges. How do you square that with the decision the court made and -- that I know you're happy about.

KAHLENBERG: Right. Well -- so, initially there was a drop in California and in Michigan. And then they instituted a number of race neutral (ph) alternatives. Now, if you read the Amicus briefs that those universities filed that -- they would suggest to you that this has been a disaster. That, you know, that they haven't been able to recover. But if you look at what the admissions numbers at those institutions, particularly at places like UCLA, they now have a higher black population representation today using things like socioeconomic disadvantage than they did in the days when they were able to use race in admissions. So, it -- it's much more expensive, that's the rub here. Universities will tell you, there's no way we can get racial diversity without using race because it's much easier and less expensive for them to bring in upper middle-class and wealthy individuals of all races than to do the hard work of admitting working-class students, low-income students of all races.

And I want to be clear, you know, I think we have a lot of -- we have a horrible history on race in this country that we have to address. There is ongoing -- there are ongoing questions of racial inequality that are important to address. But you can do that through the socioeconomic factors in particular by looking at things like wealth. It turns out that, you know, there's a huge wealth gap between black and white individuals because of our history of slavery, segregation, red lining.

And so, if universities shift to considering those types of factors, they can, you know, comply with the U.S. Supreme Court which says, don't use race, but they can also implicitly recognize our history and ongoing realities with race. and I think that's important to note. So, we're not ending affirmative action, we're shifting the basis of affirmative action to something that is going to be much more popular. The public broadly supports giving a leg up to economically disadvantaged students of all races. There are strong opposition to race -- using race per se.

So, in that sense, this decision is very different than the abortion decision. In that case, the Supreme Court was rubbing up against public opinion. In this case, they actually have public opinion on their side.

SIDNER: But they have also broken precedent very much like with the abortion case.

[10:50:00]

I do just want to push back a little bit because UC-Berkeley, one of the elite schools in California has actually only has about three percent of the students in the 2022 fall freshman class who identify as black. And there is a lot of talk about how this is impacted. So, not all universities have been able to deal with this.

When you look at what Roberts said --

KAHLENBERG: Yes --

SIDNER: -- because Roberts did bring up the fact that, look, you can consider race but it has to be in a different way. It's lived experience along with your race that can be looked at. How difficult, do you think, it will be for universities to implement this across the board, because everyone is going to have a fear that they are going to come in, break the law basically?

KAHLENBERG: Right. Well, I -- I mean, I think the safest thing for universities to do is to primarily emphasize the, you know, the socioeconomic factors as a measure of, you know, of true merits. So, you're looking at the academic record, all the other, you know, extracurriculars in light of what obstacles the student has overcome. And there, I think it is relevant to consider the race of an applicants in overcoming obstacles.

So, if a student writes in her essay about the way in which it's, you know, it's been very difficult being the only black student in an A.P. class, that that should be something that is considered not in terms of just diversity, but rather adversity. They've overcome adversity. And I think that will be a way that universities can continue to make sure that their classes are racially diverse.

On Berkeley, just very quickly. So, Berkeley and all the elite universities that can't use race, are fighting for talented black and Hispanic students with one hand tied behind their back. So, if you get into Berkeley and you're an African American student, and you get in without consider of race, you probably also get into Stanford where they can, you know, until today, have been able to use race. And where are you going to? So, it's remarkable that Berkeley has been able to do as well as it has.

The other thing to note is that Berkeley does not use wealth in admissions, which I think that they should take a look at because that is the most highly racialized socioeconomic factor that's out there. And it's completely unfair to black and Hispanic students not count being from a low wealth family. And I think Berkeley should do that, and if they do, they'll do better on racial diversity.

SIDNER: Just quickly, do you think they should not count legacy as a factor?

KAHLENBERG: Absolutely. Legacy is -- I mean, I wrote a -- edited a book called "Affirmative Action for the Rich." I mean, the -- legacy was never -- legacy preferences were never defensive, on my view. I mean, they are giving an advantage to, you know, the most advantaged groups in American society. It's, you know, affirmative action in reverse.

And I -- it was astounding to me when I testified in the Harvard case, I said, one of the things Harvard should do is get rid of legacy preferences. And they came back and said, oh, no, no, we can't do that. We have to build relationships with our alumni. And they furthermore said that, having -- this is unbelievable to me, having legacy preferences promoted diversity in their view. Because the dean said, you know, having students who've had more experience with Harvard interact with students who've had less experience with Harvard makes them better citizen leaders because they learn from one another.

I mean, the -- it was such a twisted rationale. So, yes, legacy preferences should go. And I think we will see universities end those preferences in the very near future.

BERMAN: All right. Thanks so much for being with us.

With us now is Michael Gerhardt. He is at the University of North Carolina, law professor there at the Burton Craig Distinguished Professor of Jurisprudence, and our old friend. Professor, great to see you again. You are obviously, you know, not just a member of the hair club, you know, president, you're also a member. You're at UNC where this is going to have an immediate effect. Your take as someone who is there and your take as a law professor?

MICHAEL GERHARDT, UNC LAW PROFESSOR, BURTON CRAIGE DISTINGUISHED PROFESSOR OF JURISPRUDENCE, UNC: Well, I appreciate the opportunity to be back. And of course, I'm thinking about this case from a number of different perspectives, one of which you just mentioned, that I have been on the faculty of UNC since 2005. And UNC, like, virtually every other college and university has been watching this case very closely.

I would note at the outset as well that it's nearly 45 years to the date when the Supreme Court first upheld the use of affirmative action in university admissions. I don't think that fact is lost on anyone.

[10:55:00]

So, this decision has been coming as several people have suggested for a long time. The pushback extends really from 1978, the year in which the court decided the case of Bakke which allowed for certain uses of race to today's decision which, of course, is trying to end that practice.

At UNC, like every other place, the university is going to hustle in trying to determine, OK, what are -- when -- what is -- are admissions policies going to be? What will we look at? What -- because we do care about the diversity of our class in defining diversity as broadly as possible. Socioeconomic status will undoubtedly allow for some inclusion of people, perhaps, minorities. We just have to wait to see how those statistics bear out. But at the same time, it's naive, I think, as the dissent suggested today to think that simply barring race will necessarily exclude any further consideration of race.

And what I suspect is going to happen after today among many other things is you're going to see more lawsuits. And those lawsuits will begin to focus, for example, on the use of race by students in their essays. Is it OK to raise race in essays? Because raising race in an essay creates the possibility the admissions office might rely on that factor, and there maybe any other number alternatives schools are considering which are going to be subject to judicial challenge.

The last thought I would just hear at this point is that the university -- again, like so many other universities have to be concerned about the whole person, holistic analysis. And I think it's not fair, necessarily, for the majority to suggest that race was the primary or sole consideration for a decision would in fact, it was part of a decision based on a number of different factors.

And so, what's going to happen, I think, besides those judicial challenges being directed again at UNC and other places, perhaps, because of essays, I think you're going to begin to see the universities trying to raise more money for students so they can provide scholarships that may help to promote diversity, that's a factor. As noted before, I think by Richard, when, for example, at a place like -- a great place by Berkeley may have a lower percentage of students with racial minorities.

One of the things that's also happening is Berkeley has less money to try and get people. There's going to be intense competition, already intense competition for students of all kinds. And I think that competition is going to get increasingly intense.

BERMAN: How will this be enforced? You brought up lawsuits. How is this going to play out or -- if you're a white student who's rejected, can you sue UNC and demand to see the applications of every black student who was accepted?

GERHARDT: Well, technically, you're not allowed to, sort of, look into private records of other people. So, looking at the private record of somebody else, I think, is legally prohibited. Yet, I think that what the court is opening itself up to at this point is series of lawsuits that are probably going to try and ensure that student X who might have had high grades or high ACT might -- how did that student not get in when some other students with lower credentials got in?

And the thing to remember about that is whether it's Harvard or Yale, where I happen to go to, or UNC, where I happen to teach, one of the things that happens is that schools don't define merits solely on the basis of grades or ACT scores or SAT or LSAT. They're based on a lot of different things.

So, it's been mentioned, if you get a violinist who happens to be really, really good or a jazz musician that happens to be really, really good, that could make a difference in college admissions. So, the thing that students might -- that thing that lawsuits might end up trying to challenge is the extent to which whatever benefits a person had by virtue of the high grades or scores somehow justified their admission over somebody with lower scores, that's going to be really hard to prove given the fact that diversity is a lot -- about a lot more than race.

BOLDUAN: Michael, let's just -- let's take a -- let's talk a little bit more broadly in this moment as we're -- to remind everyone, kind of, where we are in this huge moment that is just now come to the entire country of coming from the Supreme Court in this decision.

[11:00:00]