In the News: SCOTUS and Affirmative Action

N. Rodgers: Hey, Aughie. J. Aughenbaugh: Good morning, Nia. How are you? N. Rodgers: I'm good. How are you? J. Aughenbaugh: I'm good. One of the reasons why I'm really excited, this particular podcast episode is one of our shorter in the news episodes. N. Rodgers: In the news, and in the news now is the Supreme Court. Wait. Now let me backup. Supreme Court's always in the news. J. Aughenbaugh: In my world, it always is. N. Rodgers: But in this particular instance, they're in the news because they spent five hours grilling the snot out of some university attorneys over affirmative action. J. Aughenbaugh: Yes. N. Rodgers: I have to admit, and I'm not proud of this, that I have been so busy that I heard it with half an ear and I would like clarification if you can give me some clarification on it. Because I don't want to be not in the know, but I also don't want to be an attorney by the time we're done talking. I need this simplified version of this. J. Aughenbaugh: Let's first start with the facts. Listeners, as Nia just pointed out, on Monday, October 31st, the Supreme Court held nearly five hours of oral arguments in two related cases. N. Rodgers: Is that normal? J. Aughenbaugh: No. N. Rodgers: They over-grilled? J. Aughenbaugh: Yeah. N. Rodgers: These were charcoal nubs by the time they were done grilling. This was not your medium rare. J. Aughenbaugh: No. The food products at the end of these two. N. Rodgers: Were inedible. J. Aughenbaugh: The chefs who are listening will be just absolutely mortified. There was a lot of black. N. Rodgers: Carbonized. J. Aughenbaugh: Yes. Foodstuffs, because typically, Nia, each case would have received just one hour. N. Rodgers: They went way over. J. Aughenbaugh: Way over. N. Rodgers: Double plus. J. Aughenbaugh: The two cases, Students for Fair Admissions versus University of North Carolina. The second case, the same interest group, Students for Fair Admissions, and I'm just going to go with the acronym SFFA versus Harvard. N. Rodgers: Harvard and UNC, so a private and a public? J. Aughenbaugh: Public. That's right. N. Rodgers: Is this one of those where they combine them because the question that's going to be answered is going to be the same for both? J. Aughenbaugh: Kind of, sort of. That's the reason why it gets a little complex. N. Rodgers: That's not the only reason, I'm sure. J. Aughenbaugh: Yes. In the UNC case, its affirmative action program was challenged for violating the Equal Protection Clause of the 14th Amendment. The 14th Amendment applies to state government and the University of North Carolina is. N. Rodgers: An arm of the state government. J. Aughenbaugh: Is a unit of North Carolina state government. N. Rodgers: Got you. J. Aughenbaugh: In the Harvard case, its affirmative action program was challenged for violating the 1964 Civil Rights Act, specifically Title VI of the US Government Code. The reason why the 14th Amendment does not apply to the Harvard case because, Nia, Harvard is what kind of university? N. Rodgers: Private. J. Aughenbaugh: Private. N. Rodgers: It's not a state entity? J. Aughenbaugh: Yeah, it's not a state entity. N. Rodgers: Got you. J. Aughenbaugh: Now, in both of these cases, the lower federal courts ruled in favor of the universities because the lower federal courts said both of the universities' affirmative action programs complied with Supreme Court precedent in a number of cases, Bakke v. Regents of California, 1978, Grutter v. Bollinger, 2003, which was a University of Michigan case, and then as recently as 2016, Fisher versus the University of Texas. The lower courts ruled in favor of the two universities. In these Supreme Court precedence, the Supreme Court held that racial quotas could not be used, but race could be used as one criteria among many to achieve the following compelling interests, and the compelling interest is diversity among a university's student population. N. Rodgers: You can't set a number? J. Aughenbaugh: Right. N. Rodgers: We will have 200 African American students, we will have 100 Native American student. You can't do that, but you can take it into account along with other things to try to get a more diverse. J. Aughenbaugh: Student population. That actually came from Justice Lewis Powell's majority opinion in the Bakke case, and a narrow majority of the court in the Bollinger case, and the Fisher case upheld that narrow use for that particular compelling government interest. After nearly five hours of oral arguments on October 31st, it's in my opinion, and pretty much almost everybody else who's read the oral transcript, UNC and Harvard's affirmative action programs more than likely are not going to be upheld by the Supreme Court. N. Rodgers: Now, is that always the case that the argument predicts the? J. Aughenbaugh: No. I'm glad you pointed that out. Those of us who make our living analyzing Supreme Court rulings, when we read the oral argument transcripts, they're not always an accurate predictor of how the court is going to vote. N. Rodgers: But this is your instinct? J. Aughenbaugh: Yeah, this is my instinct and in reading the transcripts, it's pretty clear. You have the three liberal justices on the court. That would be Sotomayor, Kagan, and Brown Jackson. All three of them are more than likely going to vote to uphold both universities affirmative action programs. There are questions for the attorney from SFFA. J. Aughenbaugh: In some cases, we're just downright hostile. They attack the fundamental premise of the challenge. They went ahead and reminded, and I think they did this as much for the conservative justices on the court, they reminded the attorneys of the country's despicable history of mistreating minority Americans of color. It's pretty clear those three justices, they're going to vote to uphold both university's affirmative action programs. N. Rodgers: What do the six have a problem with? J. Aughenbaugh: Some of the justices believe that both schools' affirmative action programs violate the 1964 Civil Rights Act. Now, this is a law. This is considered one of the landmark Civil Rights Acts in our country's history. It basically forbids recipients of federal government aid from discriminating on the basis of a large number of an eight characteristics, including race, sex, ethnicity, country of origin, religion, and age. Now, that would be in some situations, a middle-ground approach. Because if the court went ahead and said both programs violated the 64 Civil Rights Act it would allow Congress to do what to the law? N. Rodgers: Change the law. J. Aughenbaugh: Change the law to allow universities to take into account race. N. Rodgers: But if they take into account race it's potentially discriminatory against race. If you're looking for African-American students to add to your diversity and you turn away Native American students who are Asian-American students, you could potentially be discriminating on the basis of race. I see. I'm sorry, I didn't thoroughly understand that's what they're saying is that if you pick one over another, you are discriminating against the second group. J. Aughenbaugh: That's right. N. Rodgers: Got you. J. Aughenbaugh: This is the questioning that Justice Gorsuch made of both universities' attorneys. N. Rodgers: I always feel bad when I agree with things that at the first blush seem like they would be the right thing to do. But in fact, that is a thing you would need to take into account is who are you harming when you do this? J. Aughenbaugh: Yes. Because university admissions and again, lawyers for both universities acknowledged this. University admissions are zero-sum processes. N. Rodgers: If I let you in, I am turning someone else away. The pie is not infinite. J. Aughenbaugh: The reason why I say that this would be a middle-ground approach if the court held that is that because it's not a constitutional decision, Congress could go ahead and adjust the 1964 Civil Rights Act in response. It would not require a constitutional amendment. N. Rodgers: They could just pass a new law that says you change the language and blah, blah, blah, to read yada, yada, yada, and then they would be done. J. Aughenbaugh: Now, another problem the conservatives on the court had. This could again lead itself to a middle-ground approach. Are the school's affirmative action programs not narrowly tailored assuming that the compelling interests is fine? This is what Chief Justice Roberts and Justice Alito questioned pretty much all the attorneys about. If using race is one of the considerations is not narrowly tailored, meaning that it harms some groups while benefiting others. Is there another way, or are there other ways for universities to achieve diversity in their student populations without using race? N. Rodgers: I have to admit that my first thought was if you want students from diverse backgrounds, go to diverse schools and recruit there. Because that would be a way to encourage that. J. Aughenbaugh: If that is too time-consuming and expensive, are there other proxy measures that would get at diversity? N. Rodgers: Like socioeconomic status or neighborhoods? J. Aughenbaugh: Yes. N. Rodgers: Geographic neighborhoods is what I mean. J. Aughenbaugh: Because there's quite a bit of social science research that I'm aware of that points out that you can achieve diversity. Whether you're talking about student populations, government employment, etc by looking at socioeconomic status. Because if you come from a comparatively poor family, but you've done really well in school, or you've done really well on a standardized test. Wow, right? N. Rodgers: Right, you should be rewarded with support to go to college. J. Aughenbaugh: Or to your point focus on geographical representation. N. Rodgers: If you chose students from the East end in Richmond, you would more than likely get a diverse group of folk because the East end is more diverse than the West end. J. Aughenbaugh: Or you go ahead and try to get a balance of urban versus rural. N. Rodgers: Because that's a different diversity N. Rodgers: Well, and the definition of diversity I'm assuming is coming into question here. What do you mean by diverse? J. Aughenbaugh: Yes. Again, this is a middle ground approach because it still assumes that student diversity is a compelling interest. N. Rodgers: Well, I believe it is a compelling interest because I think that college is a great place to have your ideas challenged. The way that you do that is to have a diverse group of people having a discussion. That challenges everybody's ideas. Let's say everybody have to think through and defend why they believe a certain thing which seems to me like a good idea for college which is why you would want as many voices in the room as you could get. J. Aughenbaugh: I'm with you. You and I, again, Generation X. Diversity being a good thing is part and parcel of our generations. N. Rodgers: It is fundamental to our belief system I think for most of us. J. Aughenbaugh: That's right. N. Rodgers: But did the colleges did not make a good argument for that? J. Aughenbaugh: They did a terrible job in my estimation. N. Rodgers: Should I have been there to talk about that? J. Aughenbaugh: They got so locked in on defending the status quo. That one I'm afraid is going to happen. I've mentioned three potential outcomes. N. Rodgers: Wait. I have a question. wait. Before you get to the outcomes. Did anybody bring up the diversity question? J. Aughenbaugh: Yes. N. Rodgers: What is diversity? J. Aughenbaugh: We're going to get to that. N. Rodgers: Sorry. J. Aughenbaugh: Listeners. I've already mentioned three potential outcomes. The three liberals convinced a couple of the conservatives to maintain the status quo and the current Supreme Court precedence doesn't get overturned. Not very likely in my reading of the oral arguments. I've just mentioned two middle ground outcomes. The court says the university's affirmative action programs violate the 1964 Civil Rights Act. But at least that still gives Congress the opportunity to revise the law to allow for this exception for college admissions. Or option three, another middle ground, if you were ruling. The court says diversity still a compelling interest. But the way you use race is not narrowly tailored. Go back to the drawing board, find other ways to create a diverse student population. The fourth potential outcome that I see and this is the one that colleges and universities would absolutely hate, is the court holds that diversity is not a compelling interest. Therefore, colleges, universities are going to have to go back to the drawing board in regard to what they prioritize in regard to college admissions. This was the focus of a number of their conservatives, but most prominently Justice Clarence Thomas, who at least twice went ahead and asked university attorneys, what is diversity? N. Rodgers: How are you defining? J. Aughenbaugh: How are you defining diversity? N. Rodgers: They couldn't. J. Aughenbaugh: They so struggled with it. Because I think what Clarence Thomas was getting at is, if you're asking us to ignore the equal protection clause of the 14th Amendment, and you're asking us to ignore the clear language of the 1964 Civil Rights Act, you better have a really good reason. The reason you all have stated is diversity in the student population. But what is diversity? Is it diversity of thought? Is it diversity of life experience? Is it diversity based on membership in particular groups within society? What is diversity? N. Rodgers: Yeah. They should have expected that they were going to have to articulate that. J. Aughenbaugh: Or the attorneys for the universities where they just hoping. N. Rodgers: That everybody will just assume diversity is good, without being able to define what diversity is in order to determine whether it's good or not. J. Aughenbaugh: Or it was a strategic decision. We're not going to get Clarence Thomas's vote anyway. We may not get a couple of others. Let's go ahead and focus on the justices who we could possibly persuade. I don't know. I think the best colleges and universities could hope for is that either the Supreme Court says their programs violate the 1964 Civil Rights Act or the court says the card programs are not narrowly tailored. Go back to the drawing board and find other ways to achieve a diverse student population. N. Rodgers: The middle ground options, that's the best the university can ask for. J. Aughenbaugh: I think that's the best in reading the transcripts. By the way, for listeners who are thinking, Aughie's used narrowly tailored and compelling interests that reminds me of something. Well, Nia and I talked about that in a previous podcast episode about Supreme Court tests. Those are the two parts of strict scrutiny. I think for colleges universities if they are allowed to go back and come up with other ways to achieve diversity. That's probably the best that they can hope for. N. Rodgers: Do we think that's going to happen? Or is it just hard to read the court at this point? J. Aughenbaugh: At this point, it's going to be hard to read because a lot of it's going to be, how does the vote go? Because they'll vote on this, in fact, probably today. But they won't tell us until all of the opinions have been written. Let's say, Chief Justice, John Roberts is in the majority and he likes one of these middle ground approaches. He might decide to go ahead and assign the opinion to himself or Brett Kavanaugh or Neil Gorsuch. But if he assigns it to Clarence Thomas or Aledo. Yeah, affirmative action is going down and I don't see how colleges and universities would be able to resurrect it in their admissions processes. N. Rodgers: There is almost no chance that the three will entice. J. Aughenbaugh: Three liberals? Again, reading the questions and the comments during oral arguments. I just don't see it. N. Rodgers: Well, in fairness to the conservatives on the court, asking people to explain what they mean by diversity it's not out of bounds here. That's not a question, you should have been able to articulate what you mean by that. J. Aughenbaugh: If that's the justification for using any innate characteristic as part of the admissions process. You better come to the oral arguments prepared. You're probably not going to convince Clarence Thomas otherwise. His dislike for affirmative action programs is well stated. But if you want to go ahead and pick off, for instance. N. Rodgers: Amy Coney Barrett. J. Aughenbaugh: Amy Coney Barrett or Brett Kavanaugh, perhaps the Chief Justice. N. Rodgers: You needed to have that articulable, this is what we mean, and this is why it's valuable. N. Rodgers: It's valuable, and by the way, Nia and I have put this in the research notes. There we're almost 100 friend of the court briefs submitted by interest groups, businesses, former military, for these two cases. N. Rodgers: On which side? Or did they split? J. Aughenbaugh: No most were for the affirmative action programs. N. Rodgers: Saying the personal stories of this is what it's done for my life to be able to go to Harvard or UNC or whatever. J. Aughenbaugh: A fewer were personal, most worried about institutions. The military, business, industry. N. Rodgers: Ongoing institutional racism. J. Aughenbaugh: Or the benefits to these institutions because of having a diverse workforce. N. Rodgers: Got you. J. Aughenbaugh: We live in an increasingly global international community. We need young people who are going to comprise the backbone of our military, of our government agencies, of our corporations, to be able to interact with, work with diverse clientele, etc. N. Rodgers: Each other. When will we know? J. Aughenbaugh: There's no way to gauge that precisely, but if I add to hazard a guess, since this is so controversial, okay. N. Rodgers: Are they going to wait till next June and drop it like mike drop on their way out of town [inaudible] J. Aughenbaugh: Yes, and Nia, I would expect multiple opinions. N. Rodgers: Really okay. J. Aughenbaugh: You're going to have a majority, you're going to have a descent, and then you're going to have a bunch of justices writing concurrences. N. Rodgers: We got to the right answer, but not for the right reasons. J. Aughenbaugh: They want to go ahead and emphasize that this is good, but this is not so good. They're going to try to limit the scope of the majority opinion, or you're going to get one from Clarence Thomas where he just comes out and says, affirmative action programs make the recipients second class citizens. Because people look down at, and this is his perspective. Affirmative action programs, generate suspicion that those who are the beneficiaries. N. Rodgers: Could not have gotten there on their own.. J. Aughenbaugh: That's right. Which means their accomplishments get second guessed. Even though the programs are supposed to benefit them. N. Rodgers: Got you. J. Aughenbaugh: That's his perspective. N. Rodgers: I've heard that perspective before. J. Aughenbaugh: It gets widely criticized by typically we liberals, but he has been consistent. N. Rodgers: They knew walking in and what he was going to behave is going to think. J. Aughenbaugh: If I was the attorneys for the universities. N. Rodgers: You would have just given up on not going to get [inaudible]. J. Aughenbaugh: I was pitching my arguments to three of the conservatives, Coney Barrett, Kavanaugh, and Gorsuch, because Gorsuch is a wildcard. N. Rodgers: He sometimes comes up with stuff that you're like, you know, you're a conservative. J. Aughenbaugh: That's who he is, right? N. Rodgers: Yeah. What I think that people we need to just keep hammering and reminding that once they get on the court, they follow what they believe to be the right thing to do. J. Aughenbaugh: Yes. N. Rodgers: It is sometimes wildly unpredictable who will believe what? J. Aughenbaugh: That's right. N. Rodgers: Well, this makes a lot more sense to me. I had not put together that if you would, I'm sorry to say that I had not put together that if you gave preferential admission to one race, you were by necessity discriminating against others because you're right, it is a sum zero endeavor. You're going to deny someone because you're giving access to someone. When you deny that individually, if you deny an individual of color, you are now creating a situation of discriminating based on race. J. Aughenbaugh: Then the other part of the equation, Nia because you and I work in higher education. We oftentimes take it for granted that people understand what is meant by diversity. Particularly at the university where we work at diversity is woven into the culture or VCU. I found it fascinating when some of the justices started saying, well, what do you mean by diversity. N. Rodgers: Well, because you should be able to articulate that if you want to win the argument. It's a good thing, you can't just say because it's good, and people say, but why is it good? You say because I said so. At that point, you're relying on the parental argument of because I said so, and no court in the land is going to accept that as well. J. Aughenbaugh: To acknowledge the diversity means different things or could mean different things. If you're saying to a court, that's the reason why you should allow us to go ahead and take into account race. Well, you better have a pretty. N. Rodgers: Darn good reason. J. Aughenbaugh: A pretty darn good reason, otherwise you fail strict scrutiny. N. Rodgers: Thank you Aughie, that make a lot more sense. J. Aughenbaugh: You're welcome. I enjoyed our discussion.