The Supreme Court May End Affirmative Action

and college admissions. In oral arguments on challenges to affirmative action programs at the University of North Carolina and Harvard College, several conservative justices suggested it had run its courts, referring to the two thousand three Grutter decision, in which Justice Sandra Day O'Connor anticipated the use of racial preferences would no longer be necessary in twenty five years. Here are

Chief Justice John Roberts and Justice Amy Coney Barrett. You don't think that University of North Carolina has to stop in twenty five years and at the mark, So what are you saying when you're up here in are you still the fending it like this is just indefinite, It's going to keep going on. I don't see how you can say that the program will ever end. Your position is that race matters because it's necessary for diversity, which is necessary for the sort of education you want. It's

not going to stop mattering at some particular point. My guest is former United States Solicitor General Gregory gar a partner at Latham and Watkins. He won the landmark case of Fisher versus the University of Texas, which upheld the race conscious admissions program used by that university. Gregg looking at the legal analysis after the arguments, it seems that the almost universal conclusion was that the Court is ready to throw out the consideration of race in college admissions.

Did you come to that conclusion as well? I did? I mean, I think, certainly, based on the oral arguments, appear as though the challengers had the upper hand, and you know, that's not surprising going in. But having said that, there's a lot that means to be seen about how the Court gets that result and how broadly it might

go in these cases. During the arguments there seemed to be a great focus on whether educational diversity can be achieved without the consideration of race, specifically with race neutral approaches. Does that indicate the justices are onto the next step? I think that it means that they're focused very carefully on the application of strict scrutiny in this context. In particular, looking for narrow tailoring and the existence of race neutral alternatives.

You know, for some conservative justices, it may also mean simply illustrating that universities can achieve educational diversity in other ways without explicitly considering race as part of the emissions process. So I think, you know, different justices we're looking at that issue through different lenses. It seemed like the justices

were deeply divided down ideological lines. Well, generally speaking, there's a start to side in the court in terms of how the justices look at this question of diversity and the interests in achieving diversity on college campuses and otherwise. And I think you saw that by the questioning that the justices had for the advocates. The more liberal justices obviously came at this issue from the perspective of there being a compelling interest in achieving diversity on college campuses

and elsewhere. And you know, whether or not they were able to persuade their more conservative colleagues, I'm not sure, but certainly that was one of the more interesting interplace going on throughout the oral arguments and reflects this sort of stark divide that the justices have on this issue. You argue the Fisher case, of course, and the three justices who dissented, the Chief Justice and Justices Thomas and Alito are still on the court where they as stark

in their questions and comments about using race to achieve diversity. Yes, thinking from the standpoint of the more conservative justices, their position on this issue has been clear for some time, and I think that's true of Justice Thomas, although za recall he did not ask questions during the Fisher argument. But but certainly Justice Leo, and even the Chief Justice, who is more moderate in a number of areas, but in this area, has been very outspoken against the consideration

of race and admissions. In this case, Justice Neil Gorsage seemed to have a concern that, you know, using race is sort of it's like a quota, a racial quota. Was that also a point in the Fisher arguments. So that was settled by Baki that the schools could not set actual quotas for admission spots based on race. But I think some of the justices had concerns that even the more holistic consideration of race, as in the Harvard

or UNC policies, could operate as a quota. And you know, to the extent that the justices had those concerns, that's that's a very problematic fact for the schools. There was a considerable amount of questioning about whether minority students could write in their essays about their experiences with race discrimination, and some of the conservative justices seemed to indicate that they could. Yeah, I think that was a very interesting

and potentially quite important aspect of the oral argument. There seemed to be a majority of justices who were aligned against the use of race and a sort of checked

the box form as part of the admissions process. But but even those justices, or at least several of them, seemed to indicate that an applicant could identify and speak about his or a race in the context an essay that explained how the person's race affected their own experiences, perhaps led to greater or greater perseverance that would be relevant to considering who that person was. And they seemed

to indicate that that would be okay. If that were the ultimate upshot of the court's opinion in the case, then at least in that sense, schools could consider applicants race as they wrote about it in the context of a personal essay. The challengers here had argued that any

consideration of race in college admissions is unlawful. During the oral arguments, their attorney at one point said that writing about in an essay would be okay because that's cultural rather than racial, and justice Elena Kagan said, that's slicing the bologna a little thin, something along those lines. So do you think that the challenges were giving in on that point. They seemed to go back and forth a bit on the question of whether or not race could

be considered in the context of a personal essay. Towards the second argument, I think they seem to be willing to acknowledge that it might be appropriate in the context of an essay, at least depending on how it was used in describing the person's experiences and what he or she might bring to a college campus. But I do think that that was one of the more interesting and

important exchanges throughout your argument. Certainly that's something that the Chief Justice seemed to be interested in, kneeling down that the school might be able to consider an applicant's race in the context of a personal essay. Might that be

sort of a middle ground for a decision here? It certainly could be a middle ground, and it could leave schools with an important tool for attempting to achieve educational diversity in the makeup of their student bodies, even if the Core deems the consideration of a check the box use of race unconstitutional. Another area of questioning was when will affirmative action run its course? And some of the

conservatives really pressed on that point. The Chief Justice asked the Solicitor of General Grutter, gave us a number, Do you want to give a number? No number was given, No number. I think that was one of the more difficult parts of the argument for those defending the schools,

including the government. And you know, the conservative justices seemed to expose a concern that if they were to adopt the positions of schools, they'd effectively be signing onto the indefinite use of race and even in a holistic fashion, and student admissions, which they seemed uncomfortable with. This is the first time in history that a black female justice heard arguments on affirmative action. What stood out to you,

if anything, about Justice Jackson's questions. She's obviously been extremely active at oral arguments, and you know, she elfishly brings her own experience more generally to this issue as in other areas, and so I think her questions were very poignant and important exchanges during the course of this lengthy oral argument, and she brought up the point with regard to writing about race on your application form, that it would be odd if admissions officers could consider factors like

whether applicants parents went to the school, whether their veterans or to save, but not that they're members of racial minorities. And she said that has the potential of causing more of an equal protection problem than it's actually solving. I think, as the Chief Justice pointed out later in the oral argument, the reason why the focuses on races because race has a special role in the history of the country and

the Constitution itself. But certainly from the perspective of the more progressive justices, I think, you know, one of the points that they made throughout was that, you know, race was simply being considered as part of many, many other factors about an individual applicants profile, and so in that respect wasn't really doing any different work than other factors. But again I'm not sure that persuaded their more conservative colleagues. Do you have an idea for how you think this

decision will work out. Do you think it will be one of those decisions where there are a lot of concurring opinions and you know, dissents. I think there's a lot of work left to be done on the court in terms of coming to a result in this case. And you know, do you have any thoughts about how this decision might turn out. I think there's a lot of work left to be done on the court in

terms of coming to a result in this case. And you know, one of the more interesting aspects of the oral argument was there wasn't a lot of discussion of overruling prior precedent, which is something that is certainly a

possibility on the table here. But even if the justices reached the conclusion that the particular plans here are unconstitutional, it remains to be seeing what they'll do with their prior cases and what they might say about the use of race in different ways in order to achieve diversity among student bodies, and justices were coming at that from

different perspectives on the court. I mean, certainly Justice Kavano's questions about the possibility of race neutral alternatives were important, and so even if it looks like an uphill battle for the defender of the plans here. I think there's a lot that will have to wait for in terms

of what this decision actually says. If the Court does away with affirmative action by the end of this current term, it would be the second time in the space of a year that the conservative super majority jettison decades of precedent. Will that be a consideration for the Conservatives and perhaps particularly for the Chief Well, certainly, any time the Court considers overruling precedent, it's a momentous decision for the Court,

and the justices are well aware of that. I mean, this is an area where justice is even the Chief Justice have been openly critical that's prior precedent, So if it reached that conclusion, it wouldn't be out of the blue. But I think it's fair to say that, you know, all the justices are aware of the implications of over ruling precedent, and I do think that there are a number of options that may be available to the Court in the short of overruling all its precedents in this area.

Well know. By June, thanks so much, Greg, that's former US Solicitor General Gregory gar. I've heard word diversity quite a few times, and I don't have a clue what it means. That was Justice Clarence Thomas, who's dissented in landmark affirmative action cases. In oral arguments this week over the affirmative action programs at Harvard College in the University of North Carolina. Thomas was just one of the justice is who questioned the role that diversity plays in a

college education. My guest is paul at Grandberry Russell, president of the National Association of Diversity Officers in Higher Education, explain why diversity is important in colleges and universities. Diversity has previously been defined by the Court as a compelling interest, meaning there are benefits that can be derived by having

a diverse campus community. Those of us who are practitioners who lead and influenced the effort of colleges and universities and advancing to the understand the value of a heterogeneous campus community, meaning diversity of thought, diversity of perspectives that are offered in and outside the classroom. That diversity, particularly if you think about it in the context of race

and ethnicity, can facilitate breaking down stereotypes. It can also provide individuals an opportunity to engage in what higher ed has advocated, the robust exchange of ideas, which is the basis upon which the higher education exists. Uh for, you know, holistic admissions and race as a factor. How do they in general use race as a factor. There's no checkbox, there's no quota. Clearly those have been banned by earlier

presidents of the court. Race and this was enunciated by Justice pal in nineteen seventy eight in the Bockey case that in his view, race is only one and I'm quoting element and arrange factors a university properly may consider in attaining the goal of a heterogeneous student body. So there's no hard and fast formula for using race as one of many factors that you would considered. But it's not ignoring the role that race has played in influencing

potentially the experiences of individuals. So if a student who's interested in admission chooses to speak to any aspects of their life, including race, that has provided them with perspectives or impacted their experiences, that the admissions as a part of their process may take that into consideration. The justices were exploring the use of race neutral policies in admission, you know, considering socioeconomic status or admitting the top performers

at high schools. Is that another way of doing this. I'll offer this perspective here as the president of the National Association a Diversity Officers and Higher Education, we do not believe that there's any real replacement for race conscious admissions, meaning what is often referred to as race neutral approaches. Now, the courts has previously addressed it and that the process that you used to consider race must stand under the

closest scrutiny by the court. But you know, race neutral approaches as the evidence in these cases, both Harvard and Uncy have demonstrated that they are not successful and necessarily achieving the goals of racially ethnically diversed campus communities. They are helpful, absolutely, but the goal is to enhance the opportunities for students to engage across culture, across perspective, across background and experience, to learn from each other, to understand

that no one perspective is the final perspective. It can be persuasive, and that includes perspective based on one's experiences. Because of the way that race influences experiences in this country. So to use race neutrals to say, you know, will consider socio economic class that, as argue and in evidence, is not successful in achieving the goals of institutions. It adds to it, but it doesn't necessarily provide the composition a racially ethnically composed class that would achieve the goals

of those institutions. The Justice has asked a lot of questions about what the end date for affirmative action programs is. And we're fast approaching the date that in Grutter, Justice Santa Dale O'Connor said affirmative action would no longer be needed. So what's the end date? The Justice has asked a few of the lawyers that and there was no answer

to that question. Well, I do think that the lawyer for the s s A did respond to that, and his point was that and and acknowledged himself that year, that twenty five year expectations identified in the earlier case that that number and I'm quoting from him because I listened to the your arguments that number is aspirational. Okay, So there's no hard and fast rule that one can point to in Brooder that clearly specified that in twenty

five years, it must end. You know this, this notion that's using rates as one of many factors in a quite frankly in in a country where we have worked particularly hard to address becoming a more diverse country, recognizing and respecting the role that race has played in this country, acknowledging the disadvantages that still persists as a country that has as a part of its history bree enslavement of

black people. That to the extent that we are thinking aspirationally to move beyond that history, perhaps in twenty five years we want to anticipate or expect in twenty five years we no longer have to do this. I think it is expected that the consideration of race and admissions is time limited. The question is I'll be there yet, And based on the evidence presented by U n C and Harvard, we are not there yet. Will you explain

why you know? So many companies submitted briefs warning that without affirmative action they'll lose access to this pipeline of

future workers. I think in the in the absence of UM diversity and the consideration of race carefully construct rupted consideration of rape UM we I think the concern of corporations is that their efforts to UM speak to the innovations that are well documented that results from having a diverse UH employee base, which includes racially diverse which could include of course gender UM and disabilities, UM, sexual orientation, gender identity, a whole range of ways that those experiences

can influence. It doesn't mean that UM this notion of race in and of itself represents a particular point of view, but it represents a varied amount of perspectives, and those perspectives influence how people engage with each other. It forces people from time to time in those spaces where you're fading how you're going to approach UH circumstances, whether that is promoting sales, whether that is UH influencing UM media, whether that is UM enhancing opportunities in a broader community.

That those perspectives, particularly in this context of racial perspectives or not racial perspectives, but perspectives that can be influenced by one's races and experiences needs a place at the table as well. If we take a look at the impact of a pandemic and acknowledging that UH, there were certain communities, black and brown communities particularly who were disproportionately impacted by race and health outcomes associated with their race.

That signals that race still matters in this country. Now. It's not saying that only black and brown cops have influenced the science around medicine, but those perspectives have a place at the table. You know, it extends thinking about communities that may not otherwise be present in those conversations. UM. It breaks down stereal type UM and and so what corporations and the military, particularly if you if you look at the military brief, the goal was, you know, what's

the composition of the military at some rank. Black and brown cops are very well represented in those ranks, but they're not necessarily represented in officer ranks. And sometimes the l you're to have a more racially diverse leadership, Jim be to the detriment of perspectives that might otherwise be brought to bear in the experiences of those at the other ranks. So it's it's the goal of enhancing both opportunities but also experiences and the way that those experiences

can influence decision making. Thanks for being on the show. That's Paul at Grandberry Russell, President of the National Association of diversity officers in higher education. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news honor 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 week

night at ten d m. Wall Street Time. I'm June Grossow and your listening to Bloomberg mhm