Affirmative Action in Higher Education

Episode Notes

Transcript

J. Craig Williams:  Before we begin today’s show, we want to thank our sponsor Posh Virtual Receptionists.

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Female 1:  We really see the end of race-based exclusions in higher education.  Those cases were brought in the 40s and 50s but by the 1960s and 70s, there still was not a significant representation of African-Americans in higher education.  So simply lifting the barriers didn’t have the effect of diversifying the institutions.  And so, in the face of racial unrest in the 70s and in the 60s, you saw campuses begin to develop Race-Conscious Admissions programs.  And those were the seeds of the affirmative action programs that we see today.

Intro:  Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession.  You’re listening to Legal Talk Network.

J. Craig Williams:  Welcome to Lawyer 2 Lawyer on the Legal Talk Network.  I’m Craig Williams coming to you from Southern California.  I write a legal blog named ‘May It Please the Court’.  I have two books out titled ‘How To Get Sued and ‘The Sled’.  While affirmative action has found its way to the Supreme Court in a big way, last month, Court is agreed to hear two cases brought by the Students for Fair Admissions against Harvard University and the University of North Carolina.

The first is Students for Fair Admissions versus President and Fellows of Harvard College.  And the second is Students for Fair Admissions versus the University of North Carolina.  These cases were reviewed by SCOTUS and because of their similarities consolidated when cert was granted.  In the Harvard case, the lawsuit argues that the University’s race conscious admissions policy discriminates against Asian American applicants.  In the North Carolina case, the plaintiff has claimed that UNC unfairly prioritizes black and Hispanic students over white and Asian-American students.  So, what could this mean for the future of affirmative action?

Today on Lawyer 2 Lawyer, we’re going to spotlight affirmative action in higher education.  We will discuss the history and origins, two cases set to go before SCOTUS the precedents that lead us to this place that we’re in right now, as well as the impact that these decisions could have on college admissions and affirmative actions in the future.  And to do that, we’re joined by Rachel Moran, a Distinguished Professor of Law at UCI Law.  Prior to her appointment at the University of California, Irvine, she was the Michael J. Connell Distinguished Professor of Law and Dean Emerita at UCLA Law.  In 2011, she was selected by President Obama to serve on the permanent committee for Oliver Wendell Holmes Device.

Professor Moran’s experience includes education policymaking in the law, higher education and affirmative action, Latino related law and policy, race in the law, legal education and the legal profession, and my favorite class, Torts.  Welcome to the show, Rachel.

Rachel Moran:  Thank you, Craig.  It’s a pleasure to be here.  I’m looking forward to our conversation.

J. Craig Williams:  So am I, I think that we’re right on the topic of these two supreme court cases we’ve got a couple of Supreme Court cases in the background that are as precedent that are very interesting.  But as we get started, can you give us the history and the origins of affirmative action in higher education as it’s gone through its many changes?

Rachel Moran:  Yes.  Well, you know, it’s interesting many people forget that the origins of higher education inclusion are in desegregation cases that were brought before the court’s famous decision in brown versus the board where it said that separate schools are inherently unequal in elementary and secondary education.  But the NAACP Legal Defense Fund first focused on colleges and universities because it knew that the programs were so expensive and so broad and elaborate that it would be hard to create separate but equal institutions.  And that’s where the first victories were seen in desegregation cases.

So, we really see the end of race-based exclusions in higher education.  Those cases were brought in the 40s and 50s, but by the 1960s and 70s, there still was not a significant representation of African-Americans in higher education.  So simply lifting the barriers didn’t have the effect of diversifying the institutions.  And so, in the face of racial unrest in the 70s and in the 60s, you saw campuses begin to develop Race-Conscious Admissions programs and those were the seeds of the affirmative action programs that we see today.

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J. Craig Williams:  It’s always been interesting to me how cases get picked to whine their way to the Supreme Court, you know, probably the scopes trial being among them primary that most people would understand about how they get framed.  But it’s interesting that the NAACP chose to take on higher education first with the background that Ruby Bridges faced in elementary schools being segregated during that time.  What was the strategy?

Rachel Moran:  Well, if you look, some of the early cases involved graduate education.  So, there was a case brought against the law school because there was no black law school in the state.  And so, this black student was given the option of getting tuition paid to go at a law school out of state.  And of course, the student argued that’s not the same because when I come back to my home state where I want to practice, I won’t have built up the networks and connections that I would get by going to the instate law school.  And so, this is an example of a situation in which the NAACP said there is no equivalent for black students.  There is no even fig leaf of separate but equal.  And so, you need to admit this a black student to the law school in state so he can get the comparable education that white students get in the state.  And so that’s really why they targeted higher education was this seemed to be the best place to begin to break down the fiction of separate but equal.

J. Craig Williams:  That certainly makes sense.  But Allan Bakke threw a wrench in the whole works, didn’t he?

Rachel Moran:  What happened was by the time that Allan Bakke was applying to medical school at the University of California, Davis, affirmative action programs had been around for a little while.  They had been adopted, particularly in the 1970s and so, when he applied to medical school, he was rejected.  And Davis was a brand-new medical school just a couple of years old.  But they had developed a program of setting aside a number of seats for students who were underrepresented in the medical profession.  And Allan Bakke said that’s not fair.  I can’t compete for those seats in the entering class.  And if I’d been given an opportunity to compete for all the seats in the class, I would have been admitted to medical school.

So, he brought suit in the California courts and he prevailed on equal protection grounds.  He basically said that he was denied the equal protection of the laws because he was treated differently as a white applicant than students from other underrepresented racial and ethnic groups were.  And so, the Supreme Court ultimately granted review in the case, and that became the first really significant decision by the court on affirmative action.

J. Craig Williams:  Can you argue in Bakke that the use of race as a criterion in admissions is constitutionally permissible?

Rachel Moran:  Well, this is very interesting because when the Bakke case came before the court, everyone assumed it was going to be decided on equal protection grounds.  But you had a really clear split in the court.  You had four justices who said the use of race is always impermissible.  You should never be able to use it except to correct past acts of discrimination.  And another four justices said, on the contrary, we think you should be able to use race to remedy broader social inequities.  And so, we’re comfortable with Davis’ effort to diversify the medical profession.

Now what happened was that Justice Lewis Powell became the pivotal vote.  He was the swing and what he did was something quite unexpected.  He said this isn’t just a case about equality.  It’s also a case about Liberty.  It’s about the academic freedom of the University of California, Davis to decide how to compose its student body and we should defer to their judgment that they need to diversify their student body.

Now, I’m not going to allow them to try to create new forms of medical profession composition.  They need to focus on the student body the exchange of ideas and how to practice medicine through the instructional process.  So, these broader social remedies are not part of their portfolio.  But still that academic freedom became the critical tool to preserve some place for race in College and University admissions.  Strict scrutiny still applied but it was done through the lens of respecting academic freedom.

J. Craig Williams:  Right.  But wasn’t Powell, if I remember this correctly, one of the ones that split the baby down the middle?  He also argued that racial quotas I think as employed by the school violated the Equal Protection Clause.

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Rachel Moran:  Well, it’s interesting because he said you should be able to have some space for race and admissions and we do want to defer to academic freedom but that difference is not unlimited.  And so, we’re going to look at whether or not the way you used race was necessary to achieve your objectives.  And Justice Powell said, “You know Davis used a kind of blunt instrument.  It used to set aside that prevented Allan Bakke for competing for every seat in the class.”  And that is not permissible.  That is going to be struck down under strict scrutiny of the use of race.  However, Justice Powell knew that he needed to do more than simply strike down the Davis program.  He had to offer an alternative that would be a viable way for colleges and universities to use race going forward.  You’re quite right, he wanted a middle way, and that middle way was to offer the Harvard example.

J. Craig Williams:  And then we trot forward to Fisher and University of Texas, where they tried to do that.

Rachel Moran:  Yes.  And so, what happened was Powell offered up the Harvard model, and that model is called holistic review, and it requires that a College or University looks at every individual applicant against every other one where race is just one factor, that can be a plus factor in admissions.  There was in the meantime, before Fisher, some cases against the University of Michigan.  And those cases made clear, first of all, that academic freedom is still a vital interest.  Secondly, that diversity is a compelling interest and that it promotes not only the exchange of ideas on campus, which is what Powell emphasized, but also pathways to leadership through selective institutions.  But the other thing that those cases signaled is you have to pretty much hue to holistic review because they struck down a point system that Michigan used in its undergraduate process as, again, too blunt an instrument, one that didn’t properly weigh race.

And so, when we get to Fisher, which is the case you mentioned against the University of Texas, the real question here is do we still need to use affirmative action, or has the University really made a persuasive case that they still need to consider race and admissions?  Now that case is unique because the University of Texas had been banned from using race-based admissions under a case called Hopwood.  And as a result, the Texas Legislature adopted a 10% plan which allows the top 10% of eligible high schools in Texas to get automatic admission to the University of Texas.

Now that filled up nearly all the seats in the class.  And so, when the court overturned Hopwood in Grooter, Texas began to reinstate some consideration of race for the small number of seats left after the 10% plan filled nearly every seat.  And they claimed that that was necessary to achieve their goals for diversity in the student body.  Abigail Fisher said “You’re getting plenty of diversity with the 10% plan.  You don’t need to use race anymore,” but the court ultimately held that the University of Texas had offered persuasive evidence that using race in a very limited way for the remaining seats in the class was appropriate based on reports of isolation by underrepresented students and the lack of diversity in a number of classes at the University.

J. Craig Williams:  Have any of the cases in this Shaunna, taking on the issue of proportionality in terms of reference to the existing population in the United States, you know, the percentages that exist?

Rachel Moran:  Well, the court has made very clear that quotas are impermissible.  And so, when you look at the Davis case Bakke, it’s pretty clear that you can’t create targets that are hard and fast and say every year we’re going to admit X percentage of people.  And at one point the term critical mass was used to say we need to get a critical mass of people so that they can fully participate in the dialogue and the exchange of ideas.  And as individuals, they feel fully empowered to participate and thrive in the environment.  But even that has fallen away out of fear that it might be seen as some kind of quota like approach.

J. Craig Williams:  This is sounds like it’s a field of landmines for anybody in admissions.

Rachel Moran:  This is why I think that admissions officers have tried to closely adhere to the holistic review approach that Harvard has used and that’s why it’s so ironic that the court has granted review in a case challenging Harvard’s undergraduate admissions the very program that Justice Powell offered up as a safe harbor to colleges and universities.

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J. Craig Williams:  Let’s take a look at that.  What’s the plaintiff’s argument in the Harvard case?

Rachel Moran:  In the Harvard case, the plaintiff, the Students for Fair Admissions, have argued that Harvard actually is using race inappropriately.  And they used studies in particular that focused on Asian-American applicants.  And they argued that Asian-American applicants, based on their standardized test scores, would be far more fully represented in Harvard’s class than they currently are and that they are in effect being capped out at Harvard.  And in addition, they offered evidence that Asian-American students, based on interviews, were being disproportionately marked down in the admissions process based on questions of personality and character.

In the case, they analogize this treatment of Asian-Americans to earlier treatment of Jewish applicants who also were sort of kept out based on claims about their character and temperament despite their academic excellence.  And so, the argument is this is not just race as a plus factor, race is being used in an exclusionary way.

J. Craig Williams:  Wow.  I love to continue this conversation, but at the moment, let’s take a quick break to hear a word from our sponsor.  We’ll be right back.

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J. Craig Williams:  And welcome back to Lawyer 2 Lawyer on the Legal Talk Network.  I’m joined by Professor and Dean Rachel Moran, a Distinguished Professor of Law at UCI Law.  We’ve been discussing affirmative action in higher education and specifically the current Harvard case pending before the United States Supreme Court.  Rachel, one of the things that I always the cynic in me always want to ask is, who the plaintiffs in the Harvard case, I believe, are students for Fair admissions, Edward Blum.  What’s the background?  Who are they?  What acts do they have to grind?

Rachel Moran:  Edward Blum has organized Students for Fair Admission, and he’s been very involved with numerous challenges to affirmative action in higher education.  And that’s one reason we see so much litigation.  The cases keep coming back, but I think he created this organization in part to shield individuals who might have been harmed by the admissions process.  And so, this organization sues on their behalf and provides a kind of shield and resources to bring the litigation.  But he’s been very involved with a lot of issues related to race and the law.

J. Craig Williams:  Does he seem to have a particular political bent in this?

Rachel Moran:  Well, I think that his view is that color blindness is the constitutional principle and that the uses of race for example in affirmative action in higher education violate that standard and therefore should be struck down.

J. Craig Williams:  And how has Harvard responded?

Rachel Moran:  Harvard has really doubled down on the Bakke rationale and said we used our academic freedom responsibly.  We have wade race as one factor in admissions.  We’ve followed precisely the formula Justice Powell gave because it’s our program that he cited and we have evidence that we have not been using race in a discriminatory fashion that this is a holistic review and there are lots of factors that go into admission and the lower courts have agreed with Harvard, so they upheld the Harvard program.

J. Craig Williams:  With the change in the make-up of the Supreme Court that we’ve seen over the last presidency, do you foresee a change in the precedents that we’ve been talking about?

Rachel Moran:  That is a very interesting question and it’s especially interesting because the court has decided to hear the Harvard case along with a lawsuit that was filed against the University of North Carolina.  So they’re going to come up as companion cases.  The court had been delaying a decision to grant review to hear the Harvard case, purportedly to get input from the Biden administration but the Students for Fair Admissions always had a strategy of having the cases heard together and so as soon as there was a district court decision in North Carolina upholding the program there as well, the court granted review and didn’t wait for an appellate court decision in the North Carolina case.  So that means for the first time, if you think about the past cases we’ve been discussing, they’ve all been public flagship institutions.

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But this time, we have a public flagship coupled with an elite private institution coming before the court.  Now, the real question is why did they grant certiorari.  One thing I can tell you is I don’t think they did it to uphold the two lower court decisions.  They’re very well done decisions.  They really adhere to the reasoning in Bakke and I don’t see why they would just take the cases to affirm the status quo.

J. Craig Williams:  Because there’s no conflict?

Rachel Moran:  Right.  There’s no split in the decisions.  They both adapt the same reasoning exactly.  So, the question is then why did they take it.  And one argument might be well to address public versus private.  Now, that would not disrupt the status quo terribly, because private institutions like public institutions have assumed that they could be sued and have adapted programs that are generally holistic review, but that might be one.  But I think the more likely reasons are to address potentially two other issues.  One is narrower, one is broader and would greatly disrupt the landscape of affirmative action in higher education.

So, one thing that they might be doing is trying to say what is required in the way of proof to show that race is necessary to achieve the goal of diversity?  And did these institutions provide adequate evidence?  This is something akin to what they did in Fisher.  And when the court ultimately upheld the University of Texas program, the dissenters had said this is a retreat from authentic strict scrutiny.  You’re kind of backing off.  So, perhaps they’ll say this is what strict scrutiny really looks like I think the more disruptive possibility, and I think it’s the one that probably Edward Blum would most like to see is that they declare that diversity is not a compelling interest, that there is no justification for the use of race in admissions that trumps color blindness.

And now, I want to circle back to your question about the composition of the court.  Justice Powell was a pragmatic conservative.  He balanced a lot of competing interests to find a middle way in Bakke.  But if we have a highly formalistic court, one that really looks at the text and maybe a little bit of history and plain meaning, then it’s not so clear that a formalist would agree with Justice Powell’s analysis in Bakke, and might even decide that it doesn’t hold up and rejects this use of the first amendment.  Constitutional law professor at Harvard Cass Sunstein has predicted that this formalism will be the death nail for affirmative action in higher education, so we have to wait and see.

J. Craig Williams:  And would a middle ground split be to kill the affirmative action in public schools but allow discrimination to — in private schools, it seems like it would be an easy decision for the court to reach to say, “In private schools, you can do what you want, because you’re private.  In public schools, you have to follow color blindness.”

Rachel Moran:  Yes.  And I think the real stumbling block for that and as I said, maybe the public-private distinction is something they would take up.  And that’s why they took the case.  I’m dubious, because I think that because these private institutions take so much government money and agree to adhere to non-discrimination provisions.  And because those provisions are seen as parallel to the Equal Protection Clause, that I find it would be difficult to say that they’re wholly immune from the same norms of non-discrimination that public institutions have to abide.  But you could give up the federal money, but that would not be workable.  That’s not feasible for these institutions.

J. Craig Williams:  Right.  I would imagine there is no such thing as a purely private school.

Rachel Moran:  That’s right.  I think, you know, we think of the public-private distinction often in bright line terms, but the truth is that private institutions are supported to a substantial degree they get a lot of public subsidies.  They get grant money from the government.  They get tax subsidies.  They get all kinds of government support.  And particularly in return for the grant money, they agreed to abide by federal principles of non-discrimination.  And every highly selective institution in America is taking some federal money and it’s important to their bottom line.

J. Craig Williams:  You know, you talked about the application of strict scrutiny and it seemed like there was a variation in the style of strict scrutiny that transferred in Fisher.  How do you think this court will apply the strict scrutiny standard to reach their end result?

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Rachel Moran:  I think that they can go about this in two ways.  One is to focus on whether — the strict scrutiny standardized, is it necessary?  Is your action of relying on race and admissions necessary to promote a compelling interest?  So, the most dramatic way of addressing strict scrutiny would be to say diversity is not a compelling interest.  So, unless you can show you are guilty of past discrimination, you have no basis for using race and admissions.  That would be drastic.  That would totally transform the landscape of affirmative action in higher education.

The alternative is to revisit Fisher and to say, “Yes, diversity is still a compelling interest,” but you’ve got to provide a lot of evidence to justify the use of race and admissions, to show that it is necessary to achieve diversity.  And so, that means that colleges and universities would have to invest a lot more resources in doing research, and demonstrating the necessity of using race and admissions.  And it wouldn’t be enough to just do it every 10 years.  They’d have to keep it very current.

J. Craig Williams:  Isn’t the concept though of achieving diversity kind of a backhanded way of reaching the proportions that exist in society?

Rachel Moran:  Well, it turns out that diversity is a broad umbrella.  So, we always focus on race and ethnicity, but it is traditionally been understood as including other things like what is your interest or what are your skills, what kinds of major do you want to pursue.  And for places like Harvard, where in the country are you from?  And we see that race and ethnicity, they’re still by your kind of metric of proportionality, there would still be underrepresentation, but there’s certainly more representation than there otherwise would be with some degree of consideration of race and admissions.

Now, that doesn’t mean that’s the only barrier.  There’s plenty of other barriers.  There is the quality of the high school you attend, the financial aid you received, right?  Your family’s ability to support you for other expenses when you go to school.  And so, I think it’s really a way to think about these institutions as being inclusive, preparing us for multiracial, multicultural society and also making sure that the pathways to leadership are open to people from all walks of life to preserve our democratic legitimacy.

J. Craig Williams:  We got a chance in the podcast last month to talk to the dean of admissions for Harvard and the dean of admissions for Yale.  And of course, they were unable to have the discussion that you and I have had today.  But in listening to you describe how to get admitted to law school in a sense of the diversity and the other considerations that go into it, it’s amazing to pull in that podcast and listen to that again to hear the considerations that both of those private schools or semi-private schools made in their admissions.

But it’s just been a wonderful segue between those two, so thank you for that.  Dean Moran, it looks like we’ve reached the end of our program.  At this time, we’d like to invite you to share your final thoughts as well as your contact information if you’re comfortable with that.

Rachel Moran:  Well, Craig, first of all, thank you for bringing our attention to these important issues.  It’s been a pleasure talking to you. I do hope that people will think hard about the issues here in a balanced and civil way.  I think one of the wonderful things about this program is allows us to talk about hard topics but with a lot of thought and deliberation.  And I think that’s what we need in areas as sensitive and controversial and yet as important to our future as these are.  I am very pleased to provide my contact information here at the University of California Irvine School of Law.  You can reach me at [email protected].

J. Craig Williams:  Wonderful.  Well, thank you very much.  We really appreciate you being on the show today.

Rachel Moran:  Thank you.

J. Craig Williams:  I think Dean Moran’s point that there’s no conflict in the circuits indicates that two cases coming up means that affirmative action is highly likely to get all returned, and there are going to be earth shaking consequences that flow from that.  And I don’t think that we’re ready for that, I don’t think that the supreme court will have thought all of those consequences all the way through rather than just simply making a pronouncement perhaps with the public and private distinction, which really doesn’t exist anyway as Dean Moran pointed out.  We’re in for a big change and we’re not ready for it.

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For our listeners, if you’ve liked what you heard today, please rate us on Apple Podcast or your favorite podcasting app.  You can also visit us at legaltalknetwork.com where you can sign up for our newsletter.  I’m Craig Williams.  Thanks for listening.  Please join us next time for another great legal topic.  Remember, when you want legal, think Lawyer 2 Lawyer.

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