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Supreme Court Guts Affirmative Action in College Admissions. Aired 11:30a-12p ET

Aired June 29, 2023 - 11:30   ET

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

[11:30:00]

LAURA COATES, CNN CHIEF LEGAL ANALYST: 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 to say that you have to use race exclusively as a factor or a plus factor or a quota or part of a holistic notion.

Now, many will quibble with that very portion of his opinion and it accords to other aspects as well. But I think overall, what we're seeing here is the value of precedent and the shaping of precedent and the nuances of it over periods of time that are far shorter than they used to be. Remember, Roe v. Wade was a nearly 50-year-long precedent. Many attacks about it. Many attacks were in the form of litigation.

Now, you've got affirmative action being recently decided in 2016, as Steve pointed out. And now the contours are yet again reshaped. I think you should expect to have some form of litigation still pending because it is not black and white. Forgive the pun. But it is not a black-and-white issue to think about how one is able to objectively assess subjective criteria of an application and application process.

KATE BOLDUAN, CNN ANCHOR: Laura, stick with us for a second because I'm going to bring in another voice to this. Kenny Xu, president of Color Us United. He's joining us now. He's a member of the board for students for fair admissions. This is the group that brought these lawsuits against Harvard -- Harvard and UNC. Color us blind, you -- Color Us United rather opposes race-based college admissions, which they say disproportionately discriminates against Asian Americans.

Kenny, thank you for coming in. I don't -- you've been combing through this decision along with everyone else. Part of the dissent I'd like to get your opinion on is you are clearly approved of what the majority has decided here in the six-three decision. But Ketanji Brown Jackson in -- accuses the majority of having a let them eat cake obliviousness and saying colorblindness for all by fiat by deeming race irrelevant in law does not make it so in life. She says no one benefits from ignorance. That's what she sees in this majority opinion.

KENNY XU, PRESIDENT, COLOR US UNITED: I've always maintained that if colleges and universities truly wanted diversity, they should eliminate legacy admissions. Harvard refused to do that. They will not eliminate legacy admissions. Instead, they discriminate against Asians to make room for more Black Americans. That doesn't make any sense to me. If you truly are committed to diversity and inclusion, you would eliminate legacy admissions.

Also, you would focus on the K-12 education system. Because that's where black Americans are suffering right now. It's at the K-12 level.

At the college level, you can't change a lot of the things that are going on in their lives, but you can at the K-12 level. That is what I would encourage people to do.

BOLDUAN: But what do you say to the millions of people who point to affirmative action race-based admissions as a reason for their success in life?

XU: I could point to race-based admissions as the reason why Asian Americans are being discriminated against right now. I mean, if you're an Asian-American, you had to score 273 points higher on the SAT to have the same chance of admission as a black person to Harvard. Is that fair?

I understand that people's lives are improved by getting into an Ivy League University. But that opportunity should be made available to people of every race. Not just one.

JOHN BERMAN, CNN ANCHOR: What interests do you see that universities should have in having a diverse student body? And I know the word diversity has become in some circles a four-letter word. I wish I had a synonym for it, to have a student body with people from different places with different perspectives. What do you see that interest to be?

XU: I think different places and different perspectives are important. I think race is a horrible proxy for those. As you know, 45 percent of Harvard's black students are black immigrants. And 73 percent of them come from upper middle class or higher backgrounds. At that point, a black American admitted to Harvard is more likely to have 50 with the standard white upper-class applicant than they are to have with a truly poor and disadvantaged person.

SARA SIDNER, CNN ANCHOR: I want to just quickly -- I just want to look at the numbers here taking you know Harvard into account. 15 percent African American, 27 percent Asian-American, 12 percent Hispanic, and two percent Native American. That is the class of 2026.

And when it comes to, if you look at sort of the disparities, I mean Asian-Americans have done very, very, very well. Do you worry about what this is going to do to the population now as these schools struggle to try and have a diverse student body?

[11:35:07]

XU: I don't understand why you think they're struggling. Do you not consider Asian Americans diverse?

SIDNER: Of course.

XU: I consider Asian Americans diverse.

SIDNER: Of course, That's what I'm saying.

XU: OK.

SIDNER: When you look at some of these --

XU: Then they have a diverse student body.

SIDNER: When you look at some of these numbers in other schools, though, like Berkeley, where it's three percent black, there are schools -- they are saying -- they are telling us that they're struggling. They have written that they are struggling trying to figure out how to create a more diverse student body.

This isn't just something that is in the ether. This is something that's really happening. And the students have also said the same.

So, my question to you is, what do you think that universities and colleges need to do, and -- going forward? And what do you think about the fact that the military is not included in this? Justice Roberts pointed out in the footnote that this does not include the military. Do you think it should?

XU: No, I don't think -- I don't think the military should be -- should include race. I don't think they should. In fact, the military actually provides the model for how we could include people. They never lower the bar.

The military does not lower the bar for black Americans, you have to pass the same test. But they do provide training if you are disadvantaged to get to that system. So, I believe that you really should be you know prioritizing training people to get to the bar, not to lower the bar.

BOLDUAN: Kenny Xu, thank you so much for joining us for your perspective on this. Appreciate it.

Ellie, what -- you've been with us kind of listening to the reaction coming in. And also, you reading through the decision, what do you -- what are your thoughts right now in terms of you know, we're looking at precedent overturned, we're looking as John will put it, a generational decision?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So, a couple of things. First of all, precedents are made to last but not necessarily forever. And this is now the second time we've seen this particular Supreme Court overturn a long-standing precedent. Of course, last year, the Dobbs decision overturning Roe vs. Wade. And now, this.

And the question is, when does this happen? I think the answer is that this is a result in part of elections having consequences. Supreme Court nominations have enormous consequences. This one today is a little different because the Supreme Court had 20 years ago, put a time clock of sorts. In the majority opinion, then they said, we're going to keep affirmative action, race-based affirmative action in place. But it's not meant to last forever. They put this estimate of 25 years. Here we are 20 years later.

The other thing I think is really important for people to know. There will be more lawsuits.

SIDNER: Right.

HONIG: The Supreme Court has this habit. And it's not necessarily a bad habit of saying, here's a big new rule that changes everything. But we're not going to give you exact details on how it's going to work. And I think we will see lawsuits over, can, in fact, colleges consider race if it's mentioned in an essay.

There's a lot of gray area here. And this isn't because the court is trying to make life difficult for all of us. It's because the court does not write out an instruction manual saying here's everything about how you're going to do this. The court can only address actual cases and controversies.

BERMAN: What's that point? Is there going to be an industry now for kids who don't get into a school to sue and say I didn't get in because they're misapplying this rule?

HONIG: Well, I don't know that there'll be an industry. But I think the example from the guest that we just had on. This was an interest group that came together and did their research and established what we call legal standing and brought a lawsuit. So, yes, we will see more lawsuits.

BERMAN: All right. With us now is the president of Howard University, Wayne Frederick. Mr. President, thank you so much for being with us today. This was a decision -- generations in the making that will have implications for generations to come. Your view?

WAYNE A. I. FREDERICK, PRESIDENT, HOWARD UNIVERSITY: Yes, most certainly. I think it's an unfortunate decision as well. And I think as Justice Thomas referenced, the historically black colleges and universities. I think what should have been in that opinion as well is the fact that historically black colleges and universities are carrying an outsized burden to diversify so many industries in America.

We represent only three percent of the institutions -- the Higher Ed institutions. But we're responsible for 25 percent of the bachelor's degrees awarded to African Americans. And in terms of medical school and doctors, how the university has produced more African American physicians since medical education started in America than any other single institution?

So, by not allowing race to be considered in admissions elsewhere, you can put an even more outsized burden on historically black colleges and universities that don't have the capacity to carry that type of burden. So, I think this is an unfortunate decision.

SIDNER: Can I ask you, Sir, how this may affect historically black universities? This is supposed to be for all universities. So, can you now not consider race even though the name of the institution was specifically put there because black folks had such a hard time getting into other universities?

[11:40:05]

FREDERICK: Yes. To take that one step further actually, historically, black colleges and universities are in the law because of an amendment of the Higher Education Act in the 60s so that we will be created through that system basically for special funding. And I think that these are the types of things that when you listen to certain people in Congress, these are the types of things that they may want to go and overturn. And therefore, funding could be in jeopardy.

The other thing that's interesting is if you look at our university's medical school application process, we have a supplemental application process that speaks to whether you come from an underrepresented or minority background and how that has affected you. Very similar to what Chief Justice Roberts alluded to that you can use.

The problem with that is -- at least on our side, what we're concerned about, does someone come and challenge that? Does a student who does not get into a medical school turn that? And why is that a concern?

We have the fifth most selective medical school in the country. We had 8500 people apply for medical school this year, we only admitted 126 students. And that applicant -- that supplement application.

We do use that to give disadvantaged students an opportunity. But I think that that can now be challenged, so, whether or not we should do that. And that would be problematic for the production of black doctors in America.

SIDNER: Yes.

BOLDUAN: That gets to a question we have been asking for the past, you know, an hour and 40 minutes is since we really -- then this decision came down, which is what is an admissions office to do now? What are the challenges that you see it now presenting?

FREDERICK: Yes. I think it's going to be -- yes, I think is going to be very complicated because obviously, we all are going to be trying to avoid lawsuits. So, I think trying to have a very sterile process is almost going to be impossible. And trying to create one is going to be far more difficult today given this ruling.

So I think we all are going to have to look at those very carefully. And as pointed out, I think earlier on your show, the questions that people are going to ask if they don't get in and how we supply that data, how we collect and curate that data, and how that subjectivity gets into the discussion could be very, very difficult. So, it is going to be a law that is going to require a lot more resources. And I think for institutions and our many resources, we couldn't be blindsided by lawsuits about this.

BOLDUAN: President Wayne Frederick, of Howard University, thank you so much.

BERMAN: All right. Obviously, the news today, the Supreme Court has struck down affirmative action effectively ending race as a factor in admissions in colleges. There may be some nuance there, but this is something that will have an impact for years to come.

We have much more on this. We're getting important reactions, legal reactions, political reactions, and educational reactions, as I said, almost no end to the impact this might have. Our special coverage continues right after this.

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[11:47:56]

BERMAN: All right, welcome back to CNN NEWS CENTRAL. I'm John Berman with Sarah Sidner and Kate Bolduan. And we do have major breaking news this morning. The Supreme Court has gutted affirmative action as we know it in college admissions. Meaning, the colleges and universities can no longer take race into consideration as a factor in admissions.

BOLDUAN: The justices heard two similar cases on this both brought by the same plaintiff, a conservative group called Students for Fair Admissions. One case was brought against Harvard University and the other against the University of North Carolina. In the UNC case, the split was six to three. In the case against Harvard, it was six-two. Justice Jackson recused because of her affiliation with the school.

SIDNER: The justice does say affirmative action violates the equal protection clause of the 14th Amendment. We should note that these major ruling states that in a broad sense, universities can still look at race but that would only be in the sense of how it may have impacted an applicant's life. Like for example writing something about it in an essay. But applicants will not directly check a box denoting their race for the university to consider.

BERMAN: To be fair, this is an area where there still is --

SIDNER: Nuance.

BERMAN: -- a little bit of ambiguity and nuance, which will perhaps have to be litigated in the future. We are covering this story from every angle. We have reporters, analysts, experts all standing by.

First, though, let's go to someone who was in the room for this moment in history, our Supreme Court lead analyst Joan Biskupic. Again, you were there. You have seen history being made over the last several years again today.

BOLDUAN: Yes.

BERMAN: And the reasoning of the decision. Why Chief Justice John Roberts, in his decision says that affirmative action as we know it is over?

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Yes, John. I just cannot overstate the weight of history that was felt in that room today. And as the chief said when he read portions of his decision from the bench, the constitutional guarantee of equal protection does not allow colleges and universities to consider an applicant's race when deciding who should get a coveted seat on campus.

[11:50:13]

Now, the dissenters said that he's misreading the equal protection guarantee there. But he -- he's the one who got the six votes for the majority, and his principle that he has been advocating for more than 30 years himself as a government lawyer and then as a jurist, prevailed today.

And I want to mention something about how this case was built, John. Because you just had someone on from Students for Fair Admissions. This is a group that was created specifically to try to take down racial affirmative action by a man who originally had used white students as plaintiffs.

Edward Blum, a conservative activist, has been a real case-maker here. And what he did was he advertised for Asian Americans who might have felt that they were denied a spot because of programs that might have favored Black and Hispanic students. None of those Asian-American students actually testified publicly, but some depositions were taken.

And I mentioned this because it was a major deal to the justices in the majority. When Justice Clarence Thomas read parts of his concurrence from the bench today, John, he began with talking about how this has hurt Asian Americans. And I have to say. The strategy of trying to pit one minority group against another minority group had salience with this Supreme Court in a way that usually white students in the 2003 case and in 2012, and '16 case did not.

Again, brought by the same man, Edward Blum, who had tried with other students. So, it's -- I think it shows just how the strategy that was employed here work, and the court was readier for it than it had ever been in its history.

And I think that were -- the consequences are going to be felt not just by traditional beneficiaries of racial, affirmative action, Blacks and Hispanics, but also plenty of Asian Americans. Asian Americans were not united in their sentiment about this case. And in fact, several Asian-American advocacy groups had submitted briefs to the Supreme Court trying to reject the position that Students for Fair Admissions took. So, very complicated racial cross currents here that will be playing out in the future, but ultimately probably mean a less diverse student body going forward.

SIDNER: I do want to quickly mention what one of those groups has said, AJC. They said Asian Americans are often being used as a face and tactic to challenge affirmative action. We refuse to be used as a wedge to end a policy for racial justice inequality. So, you see some of the reaction there that they don't -- they feel like they are being used as a pawn in this game to create this issue. But the court has ruled. And they have ruled decisively six to three, this is not a five to four decision. There are six justices that believe this should be the law of the land.

I want to get to Laura Coates now as we're going through this because while this is the law of the land now, while affirmative action can no longer be used, while people can no longer check a box to set -- tell universities what their race is, the descent is as fiery as you could get it. Can you explain to us what you are seeing here as far as the descent in this case? Because it is very strong from Sotomayor particularly, and Ketanji Brown Jackson.

COATES: Well, normally, you're talking about Supreme Court opinions. It's usually the dissent that's going to focus primarily on what the majority holding will be or any concurring opinion.

But here, you saw from Justice Thomas as but one example. He was factoring in the dissenting opinion and the analysis and rationale of Ketanji Brown Jackson as one aspect of more than 10 pages of his own concurrence. And so clearly, this was a very controversial discussion happening behind the scenes, and we cannot understate -- overstate that.

Having said that, what the dissent's premise has been, is that they do not believe that we are in a position as a society to pretend to be colorblind or that race is not going to be a part of a consideration of one's own lived experience, or how that is conveyed in an application process. And so this notion, I believe, they're saying in terms of the analogies to one's head in the sand like an ostrich, or lipstick on a pig, or any other colorful terms that were used to describe their disdain for the majority ruling has been rooted in the principle that they do not believe the 14th Amendment equal protection doctrine ought to be used in a way that undermines the ability to correct and course correct the history of inequitable practices in our society, education, but one aspect of it.

[11:25:08]

But what you're seeing here really play out, particularly on the conversation around precedent that Jones so eloquently talked about, and the idea of not forum shopping, that is obviously frowned upon when you're trying to find a particular judge who might be favorable to you, but looking in combing through the various decisions as recently as 2016 about -- what are the justices looking for, what are the holes that were pointed out in the analysis? Are there ways that we can counter this point by having a "perfect complainant, perfect plaintiff in an action?" And you're seeing this here.

SIDNER: Laura Coates, thank you so much for that.

BOLDUAN: I want to bring in now Michael Waldman. He's a constitutional attorney, president of the Brennan Center for Justice, and author of The Supermajority: How the Supreme Court Divided America. Some of the reaction we're getting in, Michael, just getting -- seeing here a lengthy statement being put out by the leadership of Harvard. Obviously, they want -- this one of the cases was brought against Harvard.

Let me read this to you. We will certainly comply with the court's decision. We write today to reaffirm the fundamental principle, that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today, as it was yesterday. But what are the options left to Harvard and other universities now?

MICHAEL WALDMAN, PRESIDENT, BRENNAN CENTER FOR JUSTICE: They're now going to have to parse this decision, which said you cannot look at race, but that you could maybe look at the essays talking about the impact of race on people's lives. But you'd better not do that.

It's a feast for the lawyers at the universities. It's an example of how the Supreme Court and its actions can upend the lives of millions of people. This affects all schools all across the country.

And what is changed? The facts haven't changed. The country hasn't changed, except it's actually grown more diverse. What's changed is who's on the court that you now have six very conservative justices, on big cases like this mostly moving in lockstep.

That has turned out to matter more than the doctrine or the -- or the cases that are brought. In that way, it's kind of a significantly a political decision. I think it's going to be supercharged on both sides in the political debates going forward.

BERMAN: I happen to have in my inbox a statement from Harvard here on this -- among other things. It's very long. They say we will of court -- we will certainly comply with the court's decision.

BOLDUAN: Right. Decision.

BERMAN: They go on to say we affirm that because the teaching, learning, research, and creativity that bring progress and change require debate and disagreement. Diversity and difference are essential to academic excellence.

To prepare leaders for a complex world, Harvard must admit an educated student body whose members reflect and have lived multiple facets of human experience. No part of what makes us who we are could ever be irrelevant. Harvard must always be a place of opportunity, a place whose doors remain open to those to -- whom they had long been closed to place for many will have the chance to live the dreams their parents and grandparents could not have dreamed.

So, Michael, that's the response from Harvard. They say they will comply, certainly. But then they go on to say how important diversity is still to them leaving I think the sense they're going to try to work to find a way to do it.

WALDMAN: Look, this just shows the challenge facing our society. The legacy of centuries of racial discrimination is real. It is still with us.

This over the past half century, was one of the ways we as a society, tried to upend and undo that legacy of discrimination, especially against black people. This was not something the Supreme Court had previously ordered people to do. This was something universities and others wanted to do.

Now, this Supreme Court has said no, you can't. It really poses a challenge for how we are going to take seriously the continued legacy of racism and the -- and the passing on of racial inequality from generation to generation. When the Court has said, well, you have to do it while pretending we're in a colorblind society.

SIDNER: All right, I want to quickly ask Ellie while we have the time. Because there are all these caveats that you heard just there, could someone start suing because you as a university decide, OK, we're going to give more scholarships that are particularly pointed at the Black community or the Hispanic community because we have fewer of those students? I mean, how far does this go?

HONIG: Someone could sue. And I think we'll sue. There's a lot we still don't know. There's a great example of issues that remain outstanding and college administrators, admissions officers are in a difficult position. This statement from Harvard I think, is similar to what we're going to see from many, many universities.

Of course, we will comply with what the Supreme Court said. We remain committed to this goal. How do they get there? We're going to have lawsuits following up on this perhaps going back to the Supreme Court for years while they work this out.