This is Bloomberg Law with June Brusso from Bloomberg Radio.
The Court has effectively ended affirmative action in college admissions, and I strongly, strongly disagree with the course decision.
President Joe Biden offered some of his strongest criticism of the Supreme Court after the Court's decision effectively barring universities from using race as a factor in admissions, rolling back decades of precedence, and removing a long standing method for bolstering campus diversity in a six to three vote down
ideological lines. The Justice has found that the admissions programs at Harvard College and the University of North Carolina violated the Constitution's equal Protection clause, and Biden ordered the Department of Education to find ways to build more inclusive and diverse student bodies.
Because the truth is, we all know it. Discrimination still exists in America. Discrimination still exists in America. Discrimination still exists in America. Today's decision does not change that.
My guest is former United States Solicitor General Gregory Garr, a partner at Latham and Watkins. He successfully argued one of the seminal Supreme Court cases on affirmative action, Fisher versus the University of Texas greg Is this the end of affirmative action as.
We know it?
I think it's largely the end of the consideration of race as a standalone factor in college admissions. But the decision today doesn't prohibit universities from using race neutral ways of achieving a diverse class, and specifically doesn't prohibit universities from considering race at all. I think an important qualification in the decision is that applicants may discuss race insofar as it affected their own individual experiences, So the decision today does not require race blind admissions.
The reaction from a lot of different directions has been that the sky is falling as far as affirmative action and diversity at colleges and universities. So do you think then that they're overreacting to the decision.
I don't know if they're overreacting. This is a clear and strong repudiation of affirmative action as we know it, and as the Court had previously embraced it in the decisions leading up to this point. But I do think that once the Dost settles, schools will see that there are a number of different tools that remain in effect to achieve diversity in the classroom and on campus that simply don't take race as a standalone factor.
Tell us about Chief Justice John Roberts reasoning and how he came to the conclusion that Harvard and UNC's policies violated the Constitution.
The Chief Justice emphasize that race was unique under our constitution, as we all know, and that race can only be considered if it meets the strongest of constitutional analyzes strict scrutiny. And then he proceeded to analyze the Harvard in North Carolina plans here and found that they flunked that test in numerous different respects, the most important of which was a simply considered race as a standalone factor and not
in the context of who that person is treating. In the Chief's view, race as essentially a stereotype, or considering race for race's sake, as he put it, and not in considering races it may have determined individual's own experience.
The Chief Justice also emphasized that the schools had failed to identify any compelling and concrete interests that their plans were designed to address, essentially rejecting the interests that the Court had previously upheld in prior cases with respect to achieving diversity and a pipe line for leadership in universities across the country, and also emphasized that the schools had failed to identify any endpoint, and that last point was
really an important consideration throughout the decision. Where in the Court's prior decisions, including the Gruder case in particular, the Court had said in the early two thousand that it viewed essentially twenty five years as the endpoint for the consideration of race in this way in university admissions, and the Court emphasized in several places in its decision, and Justice Kavanaugh emphasized in its concurrence that we had reached the endpoint even under Rud's own analysis, and so I
think in their view the time for considering race had ended. But really, under the Chief Justices consideration of the constitutional ana, race as a standalone factor could not play a role.
Robert's opinion didn't specifically say that the previous rulings like Gruder were overturned, but just as Clarence Thomas said in his concur ends, that the effect is basically the same, and that Grouter is for all intents and purpose.
Is overruled.
Do you agree with Thomas, Well, we typically don't give faith value to statements in a concurrent opinion or dissent. You'd look to the majority decision first, And it is quite important that the majority decision does not explicitly overrule the prior decisions Gruterer and Fisher and the like. And as to how that shapes out, we'll see. There's no question that the majority's analysis departs sharply from the prior decisions, and I think it would be hard to square those
decisions with the majority's analysis. But the majority explicitly did distinguish those cases, including the Fisher case, and found that the plan in this case suffered from unique flaws.
The court was split down audiological lines and the descents we're biting. Just as Katanji Brown Jackson wrote with let Them Eat Cake obliviousness, today the Court's majority pulls the rip and announces colorblindness for all by legal feat. But deeming race irrelevant in law does not make it so in life and justice. Sonya so to Mayor, in reading her descent from the bench, said, at one point, we shall overcome.
How do you read the descents in this case?
They're very strongly worded powerful descents. There's no question about that. And really the larger debate in this decision goes to the more fundamental question of whether or to what extent the Constitution is colorblind, going all the way back to the Civil War and the Civil War amendments and fundamental debates about how our society has considered race and could
consider race. And there's a fundamental divide on the court and that respect, with the majority taking a position that race cannot be considered on its own, whether that's for benign or non benign purposes, and the descent taking a view that if you look at a history in our law that in fact we have allowed to consider of race for certain benign purposes to viable societal lens.
As you mentioned before, Roberts said, universities can consider how race has affected an applicant's life, be it through discrimination, inspiration, or otherwise, but may not simply establish through application essays or other means the regime we.
Hold unlawful today.
And he said students must be treated based on his or her experiences as an individual, not on the basis of race.
So what's the line here?
Is there a clear line that schools can look at and figure out, you know, whether they're going to consider an applicants essay I mean, or.
Is it fuzzy.
I think it's fuzzy. I think this is likely to be the next battleground in this area. But I think it's clear from the court's decision that nothing in the court's decision in the court said this explicitly bars universities from considering an applicant's discussion of how his or her race affected his or her own life experiences or views.
And that was important to the majority, and the majority would distinguish that from simply checking a box with your race and listing race as a standalone factor that wasn't tied to the individual's own experience. The majority was also quick to point out, though in the passage your reference, that it was not saying that universities could accomplish indirectly
what the opinion forbids them now from accomplishing directly. But this is something that I'm sure universities will be carefully studying and we'll have to see how it plays out in their admissions practices.
So Roberts dropped the footnote saying this decision doesn't affect military academies if there are lawsuits over that in the future, how could that distinction be maintained between colleges and universities and military academies.
I think the key point there would be the nature of the interests that the military academies might assert in those cases, and the Court might view an interest which was framed in terms of developing the nation's military leaders and the unique experience and importance of race in that context, It's conceivable that the Court review that case differently. And it is notable and important that the Court specifically said today that it was not taking on that issue.
So President Biden said, we can't let this decision be the last word, and he wants the Department of Education to explore ways or practices to help schools build more inclusive and diverse student bodies.
Is that realistic?
I mean sure, I think it is realistic. The decision doesn't prohibit universities from seeking diverse classes through holistic admissions that consider any number of other factors than race. It doesn't prohibit universities from considering race neutral criteria like financial means and applicants' first generation status, that language is spoken
at home. It doesn't purport to prohibit race neutral tools like the top ten percent plan admitting students in the top ten percent of each cool as the University of Texas has so. There are a number of different means that universities can and have used to seek diversity in their classrooms and on campuses. The one thing that the decision today forbids, though, is the consideration of race as a standalone factor in that process.
Do you think this decision could lead employers to rethink how they consider race in hiring.
I'm sure employers will be taking a careful look at this. I mean, this decision obviously was focused on and by its terms, limited to the university admissions context, but certainly the court's discussion of the consideration of race and the strict scrutiny analysis is something that employers will want to take a close look at.
She Justice once said.
The famously said the way to stop race discrimination is to stop discriminating on the basis of race. And tell me if I'm reading too much into this. He wrote here that eliminating racial discrimination means eliminating all of it?
Am I reading too much to think that? You know? There's more to come?
Well, I think we have to take each decision on its own June, and you know, this case in a way was a long time in the making in terms of the Court's struggle in this area. But I think you're right to pick up on the Chief's own jurisprudence,
which has been more of a straight line. And I think that the tenor of today's decision is very much in line with his previous remark that the way to stop discriminating on the race was to stop discriminating thesis of race, and that's the way that he and majority of his colleagues viewed the admissions practices here.
So, Greg, on a personal note, when you argued Fisher the University of Texas at Austin in twenty sixteen, in which the Justice is upheld the admissions policy at the University of Texas at Austin on.
A four to three vote.
Did you envision that it would be some would say, toppled, or would be changed in such a way within just seven years.
Well, that's a relatively short time. But this is an area in which the Court has been struggling for, you know, decades, and one in which they're very strongly held views, and so we certainly were pleased with the decision and Fisher, and you know, pleased that the Court's decision today distinguishes Fisher.
But this is an area where the justices have been interested for some time, and you know, when they agreed to take on these cases a year or so ago, you know, it became clear that this was going to likely be a defining moment for the court stirst prudence in this area.
So this is the culmination of nearly a decade of litigation initiated by Edward Blum and his anti affirmative action nonprofit called Students for Fair and Missions. He was behind the Fisher case too, I believe, so they switched strategy in this and they focused.
On Asian Americans as plaintiffs.
It's sort of disheartening to me and that one group can change the trajectory of the court with these strategic lawsuits that he's brought in different places, or was it just the right time for his litigation.
Well, it's certainly true that mister Blum and his organization has taken on a unique role here, and it certainly is not the first time in our history that particular groups have sought to litigate particular issues. I mean one thing that the Court did take a close look at in this case was the standing of this particular group
to present this claim, and it found that adequate. But having established standing, then this group, as much as any with a concrete interest in the issue, was permitted to bring the case forward.
After his press statement, President Biden was asked by a reporter if this is a quote rogue court, and he said, this is not a normal court.
Is that fair?
I think others would view it differently, And I think, really he's got to look at the whole of the Court's work and not just a single decision, as important as that is. And really, if you take a step back and look at the decisions this term, I think you see a court of moving in all different directions in any of the more important cases, has reached more liberal results than conservative results. And so I think if you looked at that, you might see a different court.
But I think in terms of one's views on where the court is, you'd have to take a much broader look at its caseload.
Thanks for being on the show, Greg, It was great to have your insights in this area. That's former US Listitor General Gregory gar a partner Latham and Watkins. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg