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Supreme Court Outlaws Affirmative Action in College Admissions. Aired 1-1:30p ET

Aired June 29, 2023 - 13:00   ET

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

[13:00:00]

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: She said that falls way short of bringing diversity on college campuses.

She wrote: "The 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 said that: "This decision is going to have a devastating impact, and it can't be overstated."

The two African-American jurist on this court sitting on polar sides of the issue. We heard from Justice Thomas. And what was unusual here is he actually read his concurrence from the bench. That rarely happens. And he basically said, he is painfully aware of the history of racism in this country, but he thinks everybody needs to be treated equally.

Justice Jackson, on the other side, her first term, she said that the court's own missteps are both eternally memorialized and excruciatingly plain. The schools wanted diversity. They felt like their schools are a pipeline to society.

And the conservative challenges here -- it was a group. They said, look, taking race into consideration violates the Equal Protection Clause, violates federal law. And that's why they wanted these programs struck down. They got the win today.

BRIANNA KEILAR, CNN HOST: The pipeline to the military, though, the officer corps, at least, about one-third of it at the service academies preserved, which is an interesting carve-out.

DE VOGUE: You know why that's interesting is because, during oral arguments, the Biden administration really seized on the military.

Really, Solicitor General Elizabeth Prelogar, she spent most of her arguments, but she was trying to say, look this is why it's important in the military, hoping to convince them that, of course, it would be important all the way around.

In a footnote, Chief Justice John Roberts said, the military academies weren't before us today, so he allowed that to continue, again, something that the dissent seized on here.

BORIS SANCHEZ, CNN HOST: Yes, we will get much more on the military academy aspect of all of this a little bit later this afternoon. But we want to go to Jeremy Diamond now, who has been following this

story from the White House.

President Biden there explaining that he is exploring potential executive action, that he wants to direct the Department of Education to look at ways to promote diversity, Jeremy.

JEREMY DIAMOND, CNN WHITE HOUSE CORRESPONDENT: Yes, that's right, Boris.

And President Biden leaving no question about where he stands here, very much saying that he strongly agrees with the dissent in this case and, like the dissent, that he believes this decision overturns decades of precedent that has been tested in the courts, and that he now believes to have been overturned.

The president issuing a message directly to Americans and to colleges and universities, effectively saying, look, even though this Supreme Court decision says you cannot explicitly admit students on the basis of race, that does not mean that you should give up on your commitment to diversity in college admissions.

And, essentially, what he is doing is, he is pushing for a new standard, for new ways for colleges and universities to try and build diverse classes. He talked about considering socioeconomic status, a lack of financial means, where a student grew up, individual hardships, including racial discrimination.

And that, of course, picks up on that one caveat in this majority decision, effectively saying that students can still talk about their experiences dealing with racial adversity, and that that can indeed be considered.

And so for colleges and universities that may be concerned about following that path because of the risk of additional lawsuits, this is the president trying to give those universities a green light to move forward with that kind of consideration.

And, as you noted, Boris, he did say that he is directing the Department of Education to essentially come up with a list of best and worst practices for college admissions to ensure diverse classes. That includes some of the things that he was -- that I just mentioned, but also the negatives.

For example, legacy admissions is something that the president also talked about there. We know that this is a White House that has been preparing now for weeks and months for the possibility of this very decision, preparing potential executive actions.

And it's also a president who is increasingly dealing with a conservative majority on the Supreme Court that has -- that has been ruling against where the president stands. And the president noted that when he said that this is a Supreme Court that -- quote -- "once again walked away from decades of precedents."

And, lastly, our colleague Arlette Saenz was in the room there, and she asked the president about a statement by the Congressional Black Caucus, which -- and she asked, do you agree with them that effectively this is a rogue court, that this is a court that is illegitimate?

The president's words: "This is certainly not a normal court" -- Boris, Brianna.

KEILAR: Jeremy Diamond live for us at the White House, thank you so much.

Let's talk about the legal breakdown of this, right?

And, Laura Coates, you are with us here on set. First, though, I want to ask you about what the president said there at the end. Asked if it's a rogue court, "This is not a normal court."

[13:05:07]

What do you think?

LAURA COATES, CNN LEGAL ANALYST: Well, it just speaks to the larger issues that we're confronting right now about the credibility of a court that traditionally had been viewed as the one apolitical, nonpolitical body, now under a microscope for a number of reasons, not the least of which has been the ethical allegations that have been reported by ProPublica and other sources, but also based on precedent.

Remember, every single time you hear a Supreme Court nominee in the confirmation process, they will tell you how much they honor precedent, how much that they will value it, and that they seem to indicate to the powers that be that they have no instance -- no interest in touching them.

And then, as recently as where Roe v. Wade, overturned the Dobbs decision as well, and, of course, this one as recently as 2016, when they had a slim majority, including Sonia Sotomayor, the only remaining justice of that slim majority, dealing with a case that reaffirmed the notion that you could use race as part of a holistic factor.

Now you have got, just so many years later, it being gutted or turned down yet again and rejected. And so you have got the president rightly addressing what I think many people in the nation are looking at, is, should the court, this Supreme Court, be under the type of microscope that the talking point suggests that it should be, or is this an indication of the justices not being swayed by the political objectives and policy considerations you often see?

The Supreme Court in this very lengthy opinion, though, does not do itself as many favors in distancing completely from discussions you often see on the political trails.

I will point to one particular, Justice Clarence Thomas talking about the idea of 17-year-olds, applicants, he's talking about, not needing or deserving to bear the weight of the sins of the past. It sounds like the CRT discussion that happened the past.

And so you do have the infusion of these points that are coming yet again. And, Ariana, as you rightly pointed out time and time again, the composition of the court, we often speak about -- you talking, Brianna, before, the idea of the so-called conservative bench, the liberal bench, the appointee, which president has done so.

Americans are paying attention to how the decisions come down, who's on which side of the issue, and they are reading a kind of tea leaf or maybe reading the robe of the Supreme Court justice to determine, was this a predetermined conclusion or was it really the result of objective analysis of the law?

SANCHEZ: It is an important question. And there are obviously political implications ahead, not only on this issue, but on previous issues, as you noted, Roe v. Wade, a big deal in the last midterm election.

I do want to get your perspective on this, Elliot Williams, because I'm no attorney, like you and Laura, but I do wonder if there's a gray area that the Supreme Court opened up here, because they talk about applicants and universities being allowed to consider applicants' discussion of their experience with race, but they aren't allowed to, the universities, ask about that in demographic questions or in essay questions.

How is that going to work? Could there be confusion for institutions of higher learning?

ELLIOT WILLIAMS, CNN LEGAL ANALYST: You're touching on a very, very important point, Boris, which is that, when the Supreme Court rules, often they rule in paragraphs and paragraphs and pages and pages of text, but not often the flick a switch, up or down, yes or no, this thing happened or it didn't. It's a lot of explanation.

And it's really left to the public and litigants over, frankly, decades, not just years, not just months, to sort of sort out what exactly they ruled and what exactly they mean. And you're touching on what I think is one of the central open questions in the opinion, which is, what did John Roberts mean with that line?

And just let's play out a hypothetical here. Imagine a kid applies to college, says in an essay: I'm from Ghana. I'm an immigrant. My family's from Ghana. I'm a soccer player and my dad went to this university, and he has great grades and great test scores.

There's a constellation of things in that kid's case file now, but the university is now aware that he is black. He's -- pardon me -- I'm a black Ghanaian.

If the university considers some of that, or all of it, or weights the fact that dad is a -- like, how do you consider that? And I think that opens the door to plenty of litigation as to the extent to which universities can consider such things as part of a bucket of concerns about any applicant file. I just think that creates a little bit of a quagmire. I think that the

military question is another one as well. What is to stop a future litigant from saying, look, that throwaway line in the opinion that, well, military is exempt, I think a smart challenger could say that created more ambiguity and less clarity as to what the future of the law is.

And, frankly, it's just as problematic to consider race in applications to military academies as well. So, I do think there are open questions that are going to take quite some time, like I said, perhaps years, to sort out.

[13:10:03]

But of course, the fundamental question is, universities can't explicitly now consider race in applications.

KEILAR: Yes, the mean, the other thing, listen, the entire officer corps from the military, most of it comes from outside the service academies.

Then you have a situation where, knowing that the service academies actually -- in one way, they could look in terms of really wanting to emphasize that if they're trying to make sure that they have a diverse officer corps. And there's all kinds of things that could come out of this that we just don't know.

I do want to talk a little bit about polling on where Americans are on this, because it is interesting. On affirmative action, how do you feel about it, the most recent Pew Research Center study shows 50 percent of people disapprove. Only 33 percent approve; 16 percent are unsure.

So this maybe is something that does reflect, Ariane, on some of where America is on this issue, even as, obviously, it is a divisive one.

DE VOGUE: I think that's absolutely right when it comes to affirmative action, but when you look at those same polls about the court itself and who's approving of the court itself, there, a position has been absolutely plummeting.

And it's just a year ago, right, that the court overturn precedent. And when this huge decision came out, in the first few minutes, we were looking very quickly to say, did he say, I'm overturning Grutter? Chief Justice John Roberts never says that. He never explicitly says he's overturning it.

And you wonder if he doesn't say that because he doesn't want to have the same thing happened last term, when he overturned precedent. And the liberals on this bench called him on it right away and said, you're overturning precedent here. That's a big deal, because, once again, you are changing the way people live their lives and go by the law.

And even Clarence Thomas, the conservative on the court, he says, in his opinion, you overturn precedent. So I think that what you're talking about with public approval and how this court is trying to navigate their very low approval ratings really comes out today, because Chief Justice John Roberts and the majority here tried to hide the ball a bit.

KEILAR: Yes, if you're going to do it, then explain what you're doing.

DE VOGUE: Say it, right.

KEILAR: All the kids know that. Show your work, right? Show your work.

(LAUGHTER)

KEILAR: Thank you guys so much for your insights on this very important day.

We do have much more on the Supreme Court's decision on affirmative action. We're going to get in a quick break and be right back.

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[13:16:40]

SANCHEZ: Moments ago, we heard from President Joe Biden on the Supreme Court's decision to gut affirmative action.

He says U.S. colleges must still work to make their student bodies more diverse. And he would direct his Department of Education to examine programs like legacy admissions that reward privilege.

We want to discuss these developments with Rashad Robinson. He's the president of Color of Change.

Sir, thanks so much for sharing an afternoon with us.

We're wondering where things go from here, because you and your organization have been outspoken in favor of affirmative action. Before this decision, your group said it was planning to protect diversity and true equity for all. What does that effort look like now?

RASHAD ROBINSON, PRESIDENT, COLOR OF CHANGE: Well, it looks very much what the -- like what the president saying.

We are calling on universities to become public and transparent about their plans. What are their plans to ensure that they are not simply prioritizing privilege in their admissions? I mean, there have been so many reports and studies that really do animate all of the different ways in which privilege creates a whole set of doors for unearned opportunities for people to get into universities.

There's a study that looks at Harvard's admissions; 43 percent of admittance into Harvard University of white admissions, college admissions in Harvard University are either legacy, on something called the dean's interest list, which is basically kids of potential donors or folks that can buy buildings, and white athletes.

And so when you have a group of 43 percent of white students falling into that group, and the same study looked at, if -- if those benefits were not provided, diversity would look very different in terms of entering classes, you have to sort of look at all of the ways in which access and unearned opportunities comes into play.

And so when we think about affirmative action, affirmative action is an antidote to white privilege, to opportunities that have been afforded because of zip code, because of access to wealth, because of opportunities in terms of how schools are funded in this country.

And if we don't have a full range to look at the experiences that people have going into schools, we will turn back the hands of time on opportunity. This is not simply about diversity. This is about merit and how we look at the range of things that constitutes merit, in terms of how we provide opportunities, and the cascading impacts that decisions like this have on employment, on public investment, and so much more.

That is why we at Color of Change are so serious about holding institutions accountable, about making sure they are transparent about what they are doing, and not allowing these institutions to simply move on, and at the same time making sure that all of those that enable this are also held accountable as well.

SANCHEZ: I do want to zero in on the question of merit, because part of this Harvard case, part of the argument for upending affirmative action is that, based on academic excellence, Asian American students were underrepresented in admissions at Harvard.

I'm wondering what you make of the argument from conservatives like Clarence Thomas, who say that focusing just on academic excellence will improve the quality of the educational system countrywide.

[13:20:06]

ROBINSON: Well, the conservative movement has never been a movement that has sort of wanted to promote racial equity and opportunity for Asian Americans.

And if you think about their policies and positions on immigration, one has to sort of really raise an eye around sort of where they're actually coming from. But we also have to look at where this case comes from, right?

Edward Blum, who -- a white conservative that is also behind the attacks on voting rights and the attacks on other areas of racial equity, him and his organization, institutions like the DonorsTrust and others have been behind these cases.

When you look at some of the ways in which they brought forward plaintiffs, like in the UNC cases, even while promoting some sort of equity for Asian students, their plaintiffs ended up being white students. And so what we know here is that they have put forward this idea of protecting Asian students, when they have fought against the ability for AAPI people to have equal access to the polls in terms of some of their voting rights lawsuits and the ways in which they gerrymandered in this country.

They have fought against racial equity and DEI in other areas in this country. And so we can't simply sort of read their press releases and talking points and take this as standards. They have used this idea and also avoided the real and deeper conversation about legacy admissions, about folks with wealth being able to buy their way into universities.

SANCHEZ: Sure.

ROBINSON: Just a couple of years ago, we were seeing stories of all the folks in Hollywood who were buying admissions and using elite sports that you had to spend a lot of money to take to get their kids into universities, to get their kids scholarships.

We know all of the ways in which the system is rigged. And what we see is us now turning around wealthy billionaires trying to close the door and opportunity just as more Americans learn about things like redlining, just as more Americans learn about systemic racism, just as more people want to fight for racial equity.

We see the doors being closed because they don't want to play on a fair field. They want privilege to be able to rule the day, and they want privilege-based admissions. And they're not going to stop there. They want privilege-based hiring, privilege-based public investments, privilege-based everything to rule the day.

And that is why the work that civil rights organizations will do, that's why the work of everyday Americans of all races who want to be able to have equity and opportunity and merit to have a full public hearing, to get involved in this effort -- the same people behind this are also the same people that are trying to ban books about Martin Luther King and Rosa Parks.

They want to turn back the hands of time and not let us move forward.

SANCHEZ: Rashad Robinson, we very much appreciate your perspective. Thanks so much for sharing time with us.

ROBINSON: Thank you for having me.

SANCHEZ: Of course -- Brianna.

KEILAR: The Pacific Legal Foundation is one of the groups that opposed Harvard and the University of North Carolina in this case. They filed amicus briefs with the Supreme Court.

And Erin Wilcox is an attorney with the Pacific Legal Foundation joining us now to discuss this.

Erin, I know your group says that this ruling is a win for equality. Explain why you think that.

ERIN WILCOX, PACIFIC LEGAL FOUNDATION: This ruling is a win for individuality.

It's a win for evaluating people as the Constitution says our government should, which is as individual people, rather than classifying applicants to college based on their race, and assuming that everyone of a certain race will bring the same kind of background, the same kind of viewpoint to the school, that what the Supreme Court said today is, no, colleges and universities, you need to look at each applicant as a person.

And maybe their race will play a role in that. Maybe that will inform things they have overcome or their viewpoint or what they can bring to the table. But for the first time in a very long time, colleges and universities are going to have to evaluate the unique individuals that are before them. And that's really important.

KEILAR: In your brief supporting this decision, you say the path forward is tearing down obstacles to opportunity not by -- quote -- "creating racial entitlements," as you say affirmative action did.

So, specifically, how do you do that, tearing down the obstacles to opportunity for black and Hispanic students?

WILCOX: Absolutely, that's going to be the big question, I think, that we're going to be facing in the next near term.

But anything you can do tearing down barriers, anything you can do that lifts up kids of all races, that doesn't just put you in a box based on your race -- and you have seen that as an simply in, for example, California after voters passed Prop 209, which forbids, in part, colleges and universities there from considering race in admissions.

[13:25:10]

What the schools had to start doing then was going out into the community in California and recruiting from neighborhoods and recruiting from high schools that they'd never served before, that they had never looked at before, and investing in communities there in places of low socioeconomic status, or places where kids didn't often go to college.

And they showed -- they saw black and Hispanic rates rebound in colleges and universities in California after that. So they're going to have to do more work. But by lifting everyone up..

(CROSSTALK)

KEILAR: Well, they didn't at first, just -- I mean, just to be clear, Erin. You're aware of that.

And as a graduate of the U.C. system, myself, whose class in college was bisected by that decision, there was a dramatic drop at first, significant, that would have, you could argue, impact a generation of students who were attending that massive college system.

WILCOX: Of course. And I believe that U.C. had to figure that out. But the numbers did rebound. And I think that's what we're going to

see in the rest of the country as elite colleges have got to figure out a way to achieve what they're hoping, which I believe is a diverse set of kids at their university, but to do it without relying on boxes and stereotyping, as they have been doing for so long.

KEILAR: Yes, I do just want to note, and we're going to talk about this in this show, the U.C. system, and many from the U.C. system, certainly having some issues with how they handled things.

So you make that point, and certainly one that is valid we hear on your side, but it's certainly something that people are looking at from different directions. And there is some disagreement on that.

What do you make of this military service academy carve-out? They're saying that, for West Point, for the Air Force Academy, for the Naval Academy, that this doesn't apply.

WILCOX: I'm not reading a whole lot into that, to be honest. What it looks like from the footnote in the majority opinion is that the court is saying, this wasn't before us, and we're not going to rule on it today.

So I think that certainly could be an issue that comes up in the future. The federal government was certainly very keen to argue it in the oral arguments. But I don't think the court wanted to take that issue up because it wasn't before the lower courts. And I think that could certainly be an area for future litigation.

KEILAR: But how -- I mean, these are college students. These are a large number of college students. So how is that not an issue in this?

These are people who, yes, they go into the military, but they also join the broader society as well after they leave the military. How -- how can that just be sort of swept aside as this doesn't count in this discussion?

WILCOX: Well, in my view, it should count in this discussion, because as you're correct to point out, these are college students, and the ruling today should apply to everyone, because, as the court pointed out, eliminating racial discrimination means eliminating all of it.

And it's the point that equal means equal. The 14th Amendment applies to everyone. So I think that was a matter of convenience for the court today. But I don't believe it should be swept under the rug. I think those students are every bit as important as students in every other college and university in this country.

KEILAR: Yes, we heard the argument, certainly on the other side, was that they thought this undercut national security and leadership in the military, so a discussion really to be had on that, which we will be having coming up soon with General Wesley Clark.

Erin Wilcox, thank you so much for your time today. We appreciate it.

WILCOX: Thank you. KEILAR: Boris.

SANCHEZ: We are following several other big stories today.

There are new reports of a military purge inside Russia and a key arrest. Questions now being raised about whether Vladimir Putin has imprisoned a man who was once one of his top generals.

We will be right back.

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