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A look at 2 Supreme Court cases challenging affirmative action in higher education


Tomorrow, the Supreme Court will hear two cases challenging affirmative action in higher education. At issue are the admissions policies at two universities - Harvard and the University of North Carolina. In both cases, the court is being asked to overturn a 2003 decision that allows universities to consider race in their admissions decisions. That ruling has stood up to previous challenges. But now, with a 6-to-3 conservative majority on the court, that's likely to change. To learn more about these cases, we've called David Kaplan. He is a former editor at Newsweek who has covered the court for years. David Kaplan, thanks so much for joining us once again.

DAVID KAPLAN: My pleasure, Michel.

MARTIN: Well, you know, it's been years since the issue of affirmative action was at the Supreme Court. So before we dive into what these cases mean, tell us a little bit more about what these cases are about. What exactly is the issue here?

KAPLAN: Well, at Harvard, the claim is that Asian Americans were discriminated upon by the university's policies. And at the University of North Carolina, the issue was largely about white admissions. In the Harvard case, the question is whether the Civil Rights Act has been violated. So it's a claim based on a statute. In North Carolina, the claim is that the 14th Amendment has been violated. It's a constitutional claim. So the court is hearing them together logically.

MARTIN: So I do want to point out that these cases were brought forth by a group called Students for Fair Admissions, but this wasn't founded by students. This was founded by conservative funder Edward Blum, who has long been a critic of affirmative action. What do we know about him? Why is this such a significant issue for him? It's been a long-standing campaign of his. And why is that? Do we know?

KAPLAN: He's really good at this, and he learned well from organizations in the civil rights era of bringing these cases - public interest organizations like the NAACP Legal Defense Fund. And Blum, remember, brought Shelby County - the case back in 2013 - when a closely divided court gutted half the Voting Rights Act. So he's been militant about this and now has succeeded in getting the court to hear these two cases. He's a conservative. He's a libertarian. I interviewed him for my book five years ago, and he's a charming guy. And he has figured out, by hiring first-class lawyers and being well-funded, strategically and tactically, how to get the court to notice.

Now, one should point out, of course, that unlike all other appellate courts in the country, the Supreme Court chooses its own docket. It's not like these cases turn up on the doorstep and the justices say, oh, my gosh, we have to hear this. The court sends out signals that it wants to hear a case, and this is certainly near the top of their list.

MARTIN: So Edward Blum and his - the litigants that he's helped bring to the fore argue that the 14th Amendment is colorblind. It's not meant to be compensatory to people who have been historically discriminated against. What's the argument on the - being made by the universities who are defending their admissions policies?

KAPLAN: They would say that having a diverse student body is a value unto itself. It's indispensable to their educational missions. It better prepares students for a diverse workforce in society. And in the raft of more than a hundred friends of the court briefs that other organizations have filed - they're not actually litigants in the case - many have testified to that fact, including the Biden administration itself, former members of the Joint Chiefs of Staff, all saying that diversity, in its own right, is a value. Pretty strong argument, as well.

MARTIN: But has that been the argument that's prevailed previously? As we mentioned, in the past, when this issue has been brought before the court, that is the argument that has prevailed. But the makeup of the court is very different now.

KAPLAN: Correct.

MARTIN: Given the current makeup of the court...

KAPLAN: There are not changed circumstances. There are not changed facts on the ground, much as some of Blum's brief wants to argue that. This is akin to what happened in Dobbs in the spring, you know, on Roe v. Wade. We have the votes now. It's overruling precedent because we can. At the very top of their brief, which wants to eliminate affirmative action, Blum's organization says that Grutter and Bakke and other cases are, quote-unquote, "egregiously wrong." And that was the money phrase that Alito used in the abortion ruling. These cases are sort of all of a piece.

MARTIN: And to that end, there are a number of cases this term where race is at the heart of them. There was a challenge to Alabama's voting maps that was argued earlier this month. Later this term, the court will hear a case involving whether Native American families should be given priority in adopting Native American children. You've told us several times that the justices have a lot of discretion in which cases they take. So what do you think this says about where the court is right now or what signals the court is sending?

KAPLAN: I think the signals it's sending are - they wouldn't use the word radical. I would. It's that we've got six votes out of nine in a bunch of areas, maybe five votes without the chief justice in others. And we're going to take that majority out for a ride. It's judicial activism on steroids. And any notion of what we used to think was conservativism or humility or modesty on the part of the court is long gone. On the issue of race in particular, whether it's in admissions or on voting maps, remember the chief justice. He said the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. And that view now has, I think, what will clearly be six votes.

MARTIN: And their view of the inherited advantage of some is what?

KAPLAN: I think they would say that if your beef is legacy admissions or something else unstated or insidious, go and litigate that. But I think they would say that the explicit policies of a Harvard or a UNC in using race significantly in its admissions policy violates federal law and violates the Constitution.

MARTIN: So before we let you go, normally, when we speak with you at the beginning of the term, we ask what you're going to be listening for when you hear the oral arguments. But it sounds to me as if you think the decision is a foregone conclusion.

KAPLAN: Correct. I think you'll certainly hear - not in the courtroom - but you'll hear around those listening such words as doomed and death knell and chopping block. Pretty much a foregone conclusion.

MARTIN: That was David Kaplan, former senior editor at Newsweek, where he covered the Supreme Court and the courts more broadly for some years. His latest book is "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." David Kaplan, thanks so much for sharing this expertise with us once again.

KAPLAN: My pleasure, Michel. Transcript provided by NPR, Copyright NPR.

Michel Martin is the weekend host of All Things Considered, where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.
Mia Estrada
Mia Estrada is a 2021-2022 Kroc Fellow. She will spend the year rotating through different parts of NPR, including the Culture Desk, National Desk and Weekend Edition.
Tinbete Ermyas
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