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Supreme Court Guts Affirmative Action in College Admissions. Aired 11-11:30a ET

Aired June 29, 2023 - 11:00   ET

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

[11:00:00]

KATE BOLDUAN, CNN HOST: Where we are in this huge moment that has just now come to the entire country of coming from the Supreme Court in this decision.

We heard from our last guest. He says, we're not -- this is not ending affirmative action, in terms of race consideration in admissions. He says it's shifting the focus of affirmative action in terms of admissions.

Do you see it that way? Or is this ending affirmative action without ending it?

MICHAEL GERHARDT, UNIVERSITY OF NORTH CAROLINA: I think this is ending affirmative action, without excluding all possibility that race might enter into some decision-making.

So, I think one concept or -- to keep in mind that might help explain what's going on is that -- these are legal terms we use sometimes -- has to do with the difference between form and substance. Form has to do with how something formally appears, what is its sort of official appearance.

And so, today, the court has said, formally speaking, race may not enter into decision-making. But a whole other basis for making decisions or framing decisions is substance, which has to do with the actual internal aspects of a decision or its effects.

And so I think while the court has forbidden formal consideration of race, it hasn't necessarily excluded and may never be able to necessarily exclude a substantive practice or a practice which has this substantive effect of giving some consideration to some things which are effectively proxies for race, like socioeconomic status.

BOLDUAN: Michael Gerhardt, thank you so much for jumping on and giving us your perspective. Really, really appreciate it, with his extensive knowledge of the Supreme Court. Thank you so much.

SARA SIDNER, CNN HOST: We have got Laura Coates now.

Can you give us some sense of why the justices decided what they did today? You just heard Kate ask a really good question. Does this really end affirmative action, because of the things that John Roberts said in his opinion? And just give us a sense of why do you think this is happening at this moment in 2023?

LAURA COATES, CNN SENIOR LEGAL ANALYST: Well, there has been recent precedent to establish using race as but one of the factors in a holistic application.

But, here, the Supreme Court looked at this issue under two different considerations. One, of course, was the 14th Amendment and equal protection, a notion that we are not going to look at race in a way that undermines or harms people in society. Its roots historically, of course, are in the post-slavery mode of our nation, and it has carried over to this day.

What the court looked at any time that race is ever a criteria or a factor, it's noted as a suspect classification. And there's a certain formula that's applied when dealing with race cases. It's called strict scrutiny. We're going to look with strict scrutiny at different factors.

One, what is the compelling interest that the state or government entity has to actually use race as part of their consideration? And, two, is it narrowly tailored, whatever results they're looking for, to achieve a particular end?

That was the framework to look at this case. They have viewed in the majority holding here that race, one, is a suspect classification, and that the compelling interests that were provided by the universities on this issue about it leveraging or aiding in the student body diversity, about the ability to benefit people post-university and college, about diversity as a greater societal goal and framework, that they felt that, the actual ends, were not going to justify the means here.

They believe in the majority opinion that race cannot be a factor that's consistent with the 14th Amendment that says we ought not to look at race as a factor in deciding somebody's ability to be viewed meritoriously or otherwise.

Now, the reason they're criticized by the dissent in this particular opinion is because the dissent does not believe that, look, you cannot say that race is very much a part of the fabric of our society, but that it could never be looked at in a way that, on the one hand, is viewed in other contexts, but solely out of the purview in education.

In fact, there's a huge disconnect between the two black Supreme Court justices, of course, Justice Ketanji Brown Jackson and Clarence Thomas. Thomas spends a better part of 10-plus pages going directly at the rationale of Justice Ketanji Brown Jackson, because he believes her focus on race is too much.

And they focus, in particular, on the experience of Asian Americans. Of course, we are aware of the extraordinarily difficult history of Asian Americans in this country, particularly from the Yick Wo decisions, the idea of Japanese internment camps. They focus on that as well.

And they talk about how can one say that the experience of discrimination for one race puts them at a disadvantage compared to another? Are we comparing the two?

[11:05:02]

That is really the foundational premise of the majority opinion. But I will note that politics and personal experience does come into play. If you read the dissenting opinion -- or -- sorry -- concurring opinion from Justice Thomas, he speaks about his own personal experience of feeling as though, as he's written in his autobiography and beyond, about the burden of affirmative action, that he views it as racial paternalism, not as racial sensitivity.

And there was a particular point in there -- I don't know if we have a full-screen available for it -- when he goes directly at a political notion here. You might think about this in the context of discussions surrounding, say, Critical Race Theory. It might seem familiar to people.

On page 45, for those following along, he writes: "Today, today's 17- year-old, after all, did not live through Jim -- the Jim Crow era, enact or enforced segregation laws or take any action to oppress or enslave the victims of the past. Whatever their skin color, today's youth simply are not responsible for instituting segregation of the 20th century, and they should not shoulder the moral debts of their ancestors. Our nation should not punish today's youth for the sins of the past."

Of course, he's talking about the experience of otherwise equally situated or similarly situated applicants, one white, one of a racial minority group, and looking at the idea of what might give one the advantage over another.

It really speaks to me in the sense of just how impactful the political conversations have been in perhaps infusing the conversations on the bench.

SIDNER: Laura Coates, thank you so much. Interesting to note that Judge Thomas, Justice Thomas, is a Supreme Court justice, although he felt bad about feeling like he was admitted because of his race.

JOHN BERMAN, CNN HOST: I just want to reset so people, if you're just joining us, know what's going on.

BOLDUAN: Exactly.

BERMAN: There has been a generationally significant ruling from the Supreme Court in the last hour, the Supreme Court striking down affirmative action at universities, saying that universities cannot use race as a factor in admissions, effectively.

These were cases from Harvard and North Carolina. These were rulings where six of the justices ruled together. The majority was six each. I just want to read a couple quotes before we get to our reporter who was in the room, just so people know.

BOLDUAN: And Chief John Roberts wrote for the majority. BERMAN: "The Harvard and UNC admissions program cannot be reconciled with guarantees of the Equal Protection Clause. Both programs lack efficiently focused and measurable objectives warranting the use of race, unavoidably employee race in a negative manner, involve racial stereotyping, and lack meaningful endpoints."

He said, though: "Nothing in this opinion should be construed as prohibiting universities for considering an applicants' discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." He says: "In other words, the student must be treated based on his or her experiences as an individual, not on the basis of race."

BOLDUAN: This also really going against 40 years of precedent.

Let's get to Joan Biskupic. She was in the court, in the room when the chief justice was reading from his majority, and then a concurring and then dissent all read from the bench.

Joan, tell us what it was like inside the room today.

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Thanks so much.

And just to tell you about the weight of this moment, it has been four years since the justices read their opinions out loud like this for all of us to see and for us to have a dissent from the bench because of COVID. They hadn't been on display like this.

And to John's point about this generational shift, the weight of history was so evident in the room, as the justices began to read, Chief Justice John Roberts sitting in the middle of the nine with the solicitor general and all these lawyers sitting in front of him and his wife, Jane, kind of slips in right before he starts to read.

So you could have heard a pin drop. And he announces right off the bat that they're rolling back all affirmative action. And I have to say, there was a bit of defiance in his voice, even though, Kate, Sara, John, this is something John Roberts has been working on for, himself, many, many years, back to his time as a young Ronald Reagan administration lawyer.

He does not believe in any kind of race-conscious remedies. He went on about how race-conscious admissions results in racial balancing, which is against the Constitution's equal protection guarantee.

And what he did was, he spun words out of the 2003 Grutter decision that you all have referenced to say there was always supposed to be a deadline on this. There was -- it was always supposed to end. So he took bits of history and just steered it right toward, the time is now, no regrets. We're doing this.

And then he only took about 10, 15 minutes to read his, but then Clarence Thomas, who was with the majority, the court's only black male justice at this point, starts to read his. Now, one thing I would just say, watching these other justices listening, Ketanji Brown Jackson, our newest justice, the first female African-American justice, just sat looking out stone-faced the entire time this is going on.

[11:10:13]

Some of the justices are looking at their colleagues as they're reading, but she looked out, not betraying anything on her face, although we know how she felt because of what then unfolds.

So, Justice Thomas, he really immediately goes to the fact that these programs could have discriminated against Asian Americans. And he likened -- he hearkened back to slavery and all the wrongs of history, the Jim Crow era, and put these programs in that category, and talked about how much they betrayed the equal protection guarantee of the 14th Amendment.

He spoke -- he and then, following him, Justice Sotomayor spoke so long they had to take breaks to drink some water. But he spoke for about 20 minutes talking about, these programs were always bad. They were always stigmatizing. They always hurt both sides.

Affirmative action, in his mind, was always a zero sum game. And, inevitably, he believed that not only white students were harmed, but black and Hispanic students and now, in these cases, especially Asian American students.

When he finished, then Justice Sotomayor, representing the dissenters spoke. She spoke -- she's our first Latina justice on the court. She's the most senior of the liberal justices, which is why she began speaking, and she read this oral dissent.

And she talked about the profound mistake the majority was making here. She said it would close the doors of opportunity to people across the nation for schools, for then business, for the military. It would have such reverberations. And she talked about the true promise of the Equal Protection Clause and how that has always had a component that was race-conscious, that the guarantee of equal protection necessarily meant that people's race had to be taken into consideration.

I should say that's the fundamental tension at the core of this case. Is taking race into account a form of racial discrimination, as the chief justice believes? He's famously said the way to stop race discrimination is to stop discriminating on the basis of race.

And that was the core message and -- as he spoke. But what Justice Sotomayor said, as she -- she's the only justice that has been wearing a mask because of COVID. So she removes her mask, and she starts speaking, going on for about 25 minutes about how -- what a wrong turn the majority is taken.

And toward the end of her comments, she refers to her colleagues Justices Kagan and Justices -- and Justice Jackson, and she says, Justice Jackson has filed a separate dissent that Justice Kagan and she had joined. And she wanted to read the high points of that.

So she wanted to give voice to her colleagues in the fullest. But at the very end, she said, we shall overcome. It was a very mournful, robust dissent that had just a lot of unhappiness at its core, as I said, pretty mournful. But she did say, we shall overcome. Despite what the majority has done here, there will be a way for progress to continue. But the bulk of her dissent was essentially saying that her colleagues had stanched progress.

It was really something. And, as I said, the weight of history was just so evident in the room. No one in the spectator section said anything. And they couldn't say anything. And you couldn't -- you couldn't see emotion the face of anyone, including -- as I said, the chief justice's wife, Jane Roberts, is there.

Everybody was stone-faced. And then, when it was all over at about 10 to 11:00, the chief justice said that tomorrow would be the last day. They would issue their final rulings.

But nothing will eclipse this. It won't eclipse it tomorrow and probably not for many, many years.

SIDNER: Ariane, you just exquisitely explained -- Joan -- sorry -- you just explicitly explained what happened in court and how emotional it actually was,although people were stone-faced.

You explain just what you saw and what it felt like being in there. I want to quickly ask you about one thing that I found really interesting...

BISKUPIC: Sure.

SIDNER: ... in looking through this very long decision. It's more than 200 pages.

Justice Roberts talked about the military academy and saying it doesn't really apply to that.

And Justice Jackson responded with this really strong response to that, saying that: "The court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare black Americans and other underrepresented minorities for success in the bunker, not the boardroom."

[11:15:16]

These are sharp words coming from the dissenters, as we have heard in some cases before, but it shows you just how important this is and how emotional this issue is across the board, does it not?

BISKUPIC: Oh, completely, Sara.

And I have to say, even though they were all trying to hold it in check, you could tell by the tension, nonetheless, on Justice Jackson's face as she looked out, because to not even glance toward her colleagues as they were reading...

SIDNER: Yes. BISKUPIC: ... to not betray anything obviously took a lot of energy.

And you could see that tension. And she had played such a prominent role during the oral arguments in these cases in -- actually, in the single case, because she was out of the Harvard one, because she had to recuse herself because she had formerly been on the board of overseers there.

But during the University of North Carolina one, she had been so active talking about, what is the original meaning of the Equal Protection Clause? What was it designed to do? So, in this moment, when the court has reversed decade upon decade of history, and, as I said this morning when I was talking about these cases, they really do implicate the promise of Brown v. Board of Education from 1954.

And Justice Sotomayor, in her dissent from the bench, which captured, again, Justice Jackson's sentiment, talked about what that promise was in Brown v.Board, that schools would be integrated, that we were walking away from segregation.

And, in this, Justice Sotomayor said, there would be segregation. And that sharp line about the bunker and boardroom, that was matched by several others, at least out loud. I haven't had time, of course, to read the opinion. But, just in the courtroom, there were so many zingers going back and forth.

And I have to say about the chief justice we have seen him try to couch some of his strongest opinions with language that would -- might mollify some people, but there wasn't any of that. And one thing he did say, Sara, about what universities can and can't do, he said, what universities are being told today that they cannot do directly, they cannot do indirectly either.

He said -- he kind of warned that he didn't want universities and colleges trying to set up programs that would work in the shadows that might somehow take into consideration applicants' racial backgrounds. It was -- it was one of his most robust and strongest statements ever. And, as I said, it's been building for him personally for almost as long as Bakke has even existed -- Sara, John Kate.

BERMAN: Joan, I want to pick up on that last point you made. Please stand by for a moment here.

What can and can't colleges do now?

Let's go back to Jessica Schneider for a little bit more on what this means, because, look, every Supreme Court decision matters and has some kind of significance going forward, but this changes so much for so many people.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: It does, John.

And what I will tell you is that no doubt colleges and universities are already combing through very carefully this opinion to determine exactly how they will need to restructure their admissions process, because this opinion does leave a little bit of question. I mean, overall, the Supreme Court here prohibiting colleges and

universities from relying on race in the admissions process. But what we saw in this opinion is that the majority here insists they're not specifically overruling more than 40 years of precedent that allowed schools to use race as a factor in admissions.

But, at the same time, they're effectively barring applicants from what would be checking a box indicating race. And they're stopping schools from looking specifically at the race of an applicant. And, as a result here, this does mark a major change, four decades in the making, at how colleges and universities will be able to conduct their admissions practices moving forward.

So, the majority, in this opinion, what they're saying here is that you can't essentially check a box, but they're saying that we're not going to prohibit applicants from discussing race, whether you discuss the race in essays or otherwise, you describe how it affects your lives. We won't ban that.

We did see in that dissent that Justice Jackson said, look, this is a distinction without a difference. This is like putting lipstick on a pig. You're still essentially barring race in the admissions process.

So, these were two cases involving Harvard and UNC. The court, the bottom line was that the use of race at those schools violated the Equal Protection Clause. And when it comes to the reasoning in this opinion, this all amounted to the test of strict scrutiny, whether the policies at these schools were sort of narrowly tailored enough.

[11:20:06]

The court here saying they weren't. I will read you the quote here, John, that you read just a little while ago, but it really does go through what the court was considering in making this decision.

They said: "Because these admissions policies at Harvard and UNC lack sufficiently focused and measurable objectives warranting the use of race, they unavoidably employ race in a negative manner, which involves racial stereotyping. And they lack meaningful endpoints."

So, the court here really going point by point to point out what the admissions policies that UNC and Harvard did wrong. But, of course, we saw that biting dissent -- biting dissents from the three liberal justices, where they really said that this would have a devastating impact.

And Joan talked about it, the fact that these liberal justices, two of them have them having this lived experience of how race might affect their lives, saying that race needs to be considered, it needs to be considered to provide opportunity, to allow for diversity.

And, John and Kate and Sara, this is what universities are going to be struggling with going forward. They're going to be struggling with how to restructure their admissions programs. And they're also going to be struggling with how to sufficiently diversify their student bodies, when they're student applicants can no longer check a box telling them what race they are -- guys.

BOLDUAN: Jessica, stand by for us, please.

I want to get over to Jeff Zeleny now.

Jeff, you have been getting some more reaction coming in. What are you picking up?

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: Certainly.

Of all, the reaction coming in, some very interesting reaction from former President Barack Obama and first lady Michelle Obama, both of whom benefited from affirmative action programs. They have talked about it extensively over the years. And they are also both issuing separate statements this morning, very unusual, in the wake of this Supreme Court decision.

Let's look at a passages from each of these statements here. They really reflect the view here.

Former President Barack Obama, he says this: "Like any policy, affirmative action wasn't perfect, but it allowed generations of students like Michelle and me to prove that we belonged. Now it's up to all of us to give young people the opportunities they deserve and help students everywhere benefit from new perspectives."

Of course, former President Obama, who graduated from Harvard Law School, where he wrote very passionately about the need for affirmative education programs back in the early '90s.

And now Michelle Obama. She attended Princeton in 1981 and then Harvard Law School. She issues a very lengthy statement, a very passionate statement about the need for affirmative action and how it helped her. But listen to this as well, one passage from her.

She says this: "Today, my heart breaks for any young person out there who's wondering what their future holds, and what kind of chances will be open to them. And while I know the strength and grit that lies inside kids who have always had to sweat a little more to climb the same ladders, I hope and pray the rest of us are willing to sweat a little too."

So, certainly, very interesting reactions there. But I'm thinking back this morning to a time on the campaign trail back in 2007 when then- Senator Obama was asked about affirmative action and if their daughters, Malia and Sasha, also benefit from these programs.

And, at the time, Senator Obama, the junior senator from Illinois, who would go on to be become president, but it was not clear at that point in 2007, he said he did not believe that they should benefit from these programs because they had many other advantages that Michelle Robinson at the time and Barack Obama did not have.

So, certainly, as generations pass here, a very interesting reflection of this. But talking broadly about how the public views affirmative action as a whole, a very interesting Pew study from earlier this month that I think is instructive to a public opinion.

Let's take a look at those numbers if we have them. A bare majority, about 50 percent of Americans, said that they believe that affirmative action programs have run their course. They do not support, they disapprove of affirmative action programs overall. Only 33 percent approve and 16 percent unsure.

And that has a very stark partisan divide in it. About 75 percent of Republicans, about three-quarters of Republicans, believe -- that they disapprove of these affirmative action programs, and only about 54 percent of Democrats -- actually, 29 percent of Democrats and Democratic-leaning voters said that they support these programs.

So, certainly, this is being viewed through a very predictable partisan lens here. But those comments from former President Obama and Mrs. Obama certainly are reflective of to people who benefited from these programs and now are calling on society and others to do more to help students like them along the way -- guys.

BOLDUAN: Jeff Zeleny, thank you so much.

This -- as you were speaking, Jeff, there has been an update to President Biden's schedule, the White House just putting this out that President Biden will be delivering remarks on the Supreme Court's decision on affirmative action. Those remarks will be coming from the president of the United States in just about one hour at 12:30 Eastern.

[11:25:06]

SIDNER: OK.

Just reminding everybody sort of where we are. The U.S. Supreme Court has made a huge decision that will affect many, many, many Americans and universities and colleges. They can no longer use race as a factor in deciding whether or not students get admitted. That's the bottom line.

There are lots of caveats that we have seen from Justice Roberts, but that is the bottom line at this point.

I want to get to Steve Vladeck and also to our Laura Coates.

I'm going to start with you, Steve, because I know you have been watching every single thing that has come down on this. And you write that it does not end all race-based affirmative action.

I was curious, though, because we just heard from someone in the court, who basically said, look, Roberts wanted to be very, very clear that you could not do this, and you couldn't go around it as well and try to use race in another way to try to get students in.

So, could -- does this mean that the courts are saying schools cannot use it, for example, for scholarships or other things?

STEVE VLADECK, CNN LEGAL ANALYST: Yes, and I think that what's really tricky here, I think this is where there's a lot of confusion in some of the headlines coming out from other media outlets, is race as a policy, race-based preference as a policy, that's dead.

I mean, that is clearly forbidden by today's majority opinion, at least, except in the military service academies, which Chief John Roberts exempts in a footnote. But the court actually goes out of its way to say that if, for example, an applicant writes about how race shaped their experience in a diversity statement, in an application essay, that's not beyond the ability of the university to consider.

And so what this really opens the door to is a very, very different use of race in college admissions, where schools can't say, we're going to have preferences. Schools can't say race is a plus factor. Schools can't say racial diversity is one of our goals, but where applicants can still choose to talk about themselves, guys, at least in those contexts where it's permissible.

I mean, I teach at the University of Texas, a public school in a red state, where the legislature has actually gone to some lengths to actually restrict the ability of schools to consider these kinds of diversity statements. But in those places where they're still viable, there's at least a sliver left.

And what's so important about that is, it allows the Supreme Court to claim that it hasn't overruled its decades of precedents formally recognizing the validity of a race-based affirmative action, even while today's decision effectively neuters them and makes these policies all but impossible to pursue in the vast majority of colleges and universities across the country.

BERMAN: Let's bring back in Laura Coates.

Laura, you have had some time to go through the opinion now, read the legal reasoning behind it. What jumps out to you?

COATES: It all goes down to this concept of strict scrutiny. When race is a factor in a particular aspect of the law, the courts are going to view it with great scrutiny.

They want to know, is there a compelling enough reason for you to take into consideration race, which of course, under the 14th Amendment, we as society chose? And it should not be a factor that would undermine or disadvantage somebody. And so looking at that through that lens of strict scrutiny, this court is saying that you have not justified your use of race by anything very compelling to us.

You have not provided the data that we need to suggest that this is still warranted or necessary. Of course, a lot of this in the admissions process is what? It's subjective. The criteria you decide of which student you think ought to be a part of your community, as opposed to somebody else, is going to be based on factors outside of the data surrounding a test score.

And so you have a whole host of subjective criteria that will be used. This court is saying that subjective criteria can be OK, as long as it's not race. The question, though, as Steve alluded to, is the enforcement mechanism, the application of it, in the sense of, how does a school know when they are crossing the line in considering and listening to a student's discussion of race as part of an identity, as opposed to using it as somehow an advantage?

What we're seeing here is an evolution. There are no quotas. It cannot be a plus factor. This decision was about whether race can be part of a holistic consideration of one's application, which is inherently subjective.

But, at the end of the day, one part that was really interesting to me, in particular, was Justice Thomas's concurring opinion, where he talked about HBCUs, identifying HBCUs as an example of a not racially diverse entity that still has benefits to the student body outside of the college and university setting.

He used that to juxtapose why diversity might be a goal societally, but it is not compelling enough.

[11:30:00]