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For decades, the Supreme Court has allowed colleges to consider race in admissions in order to promote diversity.

Now, two cases are challenging this practice.

Here we explore the debate over affirmative action and the law that has informed and often transformed its use.

We're here at the center of Bentonville Square.

There used to be a Confederate statue housed here.

I was involved in the activism and the protesting surrounding removal of the monument.

It was a really fraught experience.

But now it's been gone for a couple of years, and there's a beautiful sunflower bed that's replaced it Muskaan Arshad became a social activist due to her own challenges growing up Asian-American in Arkansas.

So in 2021, when she applied to college, she decided to write about how race had often defined her experiences.

When I was growing up, there was always this inherent feeling that being brown, being Indian wasn't good enough.

I think the youngest time I experienced that was when I was in class and we were doing like an activity that involved everyone holding hands and just people.

No one would touch me.

Just being like seven years old and hearing and seeing your peers like, not be able to touch you just because of your skin color and thinking you're just inherently dirty in some way.

That was just an extremely hurtful moment and I think just was the first instance of many that really cemented the fact that being Brown, being Indian, being Asian-American wasn't an accepted thing.

My race was just essential in every part of my application and who I am without mentioning my race and how it was part of my life, I don't think I could have painted a full picture of who I was and maybe not even gotten into Harvard.

It's the kind of consideration that universities like Harvard have long given special attention to Supreme Court decisions dating to the 1970s have solidified the idea that colleges can use race as a factor in admissions.

But now these decisions are being re-evaluated.

Some big developments out of the Supreme Court today.

The justice announced they will.

Reconsider.

The issue of race based affirmative action in college admissions.

The man behind the Supreme Court fight is Edward Blum, a conservative activist who spent decades seeding lawsuits to challenge affirmative action practices.

Kids check which race they belong to, and then they're judged either affirmatively or negatively by competitive admissions officers based upon the box they check.

That is inherently unfair.

That is inherently polarizing and inherently illegal and unconstitutional.

Bloom lost an earlier case involving a white student who challenged affirmative action at the university of Texas.

But his current lawsuits against Harvard and the University of North Carolina Chapel Hill have drawn attention for a more unusual argument that affirmative action policies, at least at Harvard, discriminate against one minority group, Asian-Americans.

Harvard systematically raises the bar for Asian-Americans and systematically lowers it for whites, African-Americans and Hispanics.

We allege that Harvard has a quota.

That possibility has long worried some in the Asian-American community.

But it was one student's fight that made it front page news attracting bloom to the cause.

Michael Wang did everything he could to get into Harvard, I actually sang on Obama's inauguration.

Multiple speech and debate awards.

Piano Competitions.

But in 2013, the California high school student was rejected by his dream school, even as he says students with lower grades got in.

I spent middle school, high school really grinding away, taking as many AP classes I could, participating in as many extracurriculars as humanly possible.

Really just trying to put together the best resume for these Ivy Leagues and all these top tier institutions.

Ultimately, when I got my decisions, you know, they weren't what I expected.

So I wrote to their admissions offices by email and asked them, Can you tell me how you utilize race as a factor of admission?

All I wanted to see was, you know, is me being Asian-American, something that disadvantaged me in my application.

The answers I received back from those admissions officers were unsatisfactory.

And so that's where, you know, in 2013, I decided to file my three complaints, and that's how I got started on this whole road.

While the U.S. Department of Education ultimately decided not to act on Michael Wang's complaints in 2014, Blum began to seek out Asian-American students to bring a lawsuit.

The lawsuit against Harvard University for discriminating against Asian-American applicants just took a new twist with claims that the bias against them is a, quote, personal thing, including such traits as positive personality, likability and attractive to be with.

You cannot remedy past discrimination with new discrimination.

Blum's case has deeply divided the Asian-American community.

We are united today to protect opportunity.

Blum's lawsuit is racist in its effort to whitewash history.

We're still a minority at the end of the day.

Asians have been discriminated against.

I would hope that as a minority, as Asian-American, we're not the ones losing out.

But Blum's lawsuits have also reopened the larger debate, one that the Supreme Court famously grappled with in 2003 in a case called Grutter v Bollinger.

For the first time since the seventies, the Supreme Court today took affirmative action in education.

Dead on.

Can race be a factor in college admissions?

Period?

Two white female say the University of Michigan denied them admission using tough standards for whites.

They say things like we're selective.

But they're making selections on racial lines.

I think that the University of Michigan is using a preference that is based solely on skin color, and that is wrong.

A position shared by more than two thirds of Americans, according to a Newsweek poll.

68% said they opposed racial preferences in college admissions for blacks.

70% said they opposed preferences for Hispanics.

Those who were challenging the affirmative action program were arguing that there was something deeply offensive about counting and sorting people by race.

On the other side, of course, was look is its working.Without it We'd be back to where we were.

So these are two profoundly different ways of looking at the problem.

And it came at a very important moment in the court's own evolution.

At the center of that court was a conservative former politician who had overcome discrimination to become its first female justice, but struggled with the question of affirmative action.

Her name was Sandra Day O'Connor.

People paid a lot of attention because these issues of race really touched so deep chords in the American fabric.

One issue with affirmative action is that somebody gets a benefit on the basis of race.

That means that if it's a zero sum game, somebody, because of their race, didn't get that benefit.

And that really bothered her.

I think she very deeply grappled with the issue that was presented in Grutter and the deeper issue about the role of race in American life in American law.

We knew from the very beginning that whatever she thought the conclusion should be, we weren't going to sway her from that.

But she was someone who, in the difficult cases, was open to debate and compromise.

That desire for compromise was helped along by two unusual briefs.

One from the military emphasizing why affirmative action in the academies is important to producing diverse leadership.

And then one from Fortune 500 companies that emphasized why having diverse institutions is important in populating the workforce with people who've had the experience of interacting with those who are not necessarily like themselves.

The arguments made sense to her as a reflection of the America that she knew and that she had watched from this perch as a Supreme Court justice.

And so she came off with her very modulated response.

Student body diversity is a compelling state interest that can justify the narrowly tailored use of race in admissions.

Yes, there's room for a limited kind of affirmative action in higher education that doesn't have a fixed quota.

That takes a look at each applicant as an individual.

So the decision in Grutter kept affirmative action alive.

O'Connor's ruling was important because it upheld the use of affirmative action to racially diversify universities and because it affirmed a broad rationale.

Doing so was good for the country.

But her ruling also contained a ticking time bomb.

She did something very unusual in the opinion, she said, basically, we expect that 25 years from now American society will have worked this problem out and it won't need us anymore.

It won't need affirmative action anymore.

That was a kind of a safety net at the time.

And now, of course, it's a looming vulnerability.

While Blum has highlighted the treatment of Asian Americans, the lawsuits brought by his group, Students for Fair Admissions, don't seek to just rejigger how race is used in university admissions.

They seek what Blum has advocated from the beginning.

The whole Asian issue was just a stalking horse.

What is really about is a university may not consider race full stop.

And the whole thing was an effort to get that question before this Supreme Court.

And it has succeeded.

It's now before the Supreme Court.

But Blum's end game goes too far for even some of those who have led the fight to reevaluate these programs.

I think I may have said in motion, things that might be out of control.

A friend of action might just get completely tossed.

And I don't fully agree with that.

I think affirmative action is still very necessary in helping minorities who actually do need it.

Maybe there's just one problem with implementation.

That doesn't mean we toss affirmative action out the door.

There is a middle ground.

If Blum's case succeeds, California's experience in the 1990s and early 2000s may show the likely result.

When there was a proposition that barred the use of race in admissions, African-American representation in the class plummeted.

And so that was kind of a controlled experiment.

If the court takes that most extreme position, it's possible that these justices could basically hamstring, you know, all of American education, not just elite college education.

And so the argument now is on how much should we care about that?

For student activists like Muskaan, the importance is clear I think a quote that really sticks with me is that no racial group has a monopoly on talent or intelligence.

But certain students do have a monopoly on opportunity.

And I think race conscious admissions really takes that into account.

We're trying to pretend we're in a society where race doesn't matter, where everything is race blind and everything is equitable.

When these systemic issues are still right underneath.

But we just aren't addressing that.

How we address these issues of bias and discrimination.

Opportunity and equity is at the core of the argument.

Now in front of the Supreme Court.

What is affirmative action?

So affirmative action in the higher education context refers to efforts that institutions make to ensure that there is a diverse student body.

Affirmative action is a race conscious decision making By doing things like giving preferences for federal contracts and then extending preferences and hiring.

Things that are considered might be your S.A.T.

score for an applicant or A.C.T..

Personal essays as well as factors like the applicant's race.

Well, affirmative action in higher education can mean different things to different people.

With these challenges to the admissions programs of Harvard University and the University of North Carolina.

Affirmative action stands as it always has.

A controversial issue.

Does it level the playing field or discriminate unfairly?

If we start all the way back with the 14th Amendment, that was an amendment to the US Constitution passed at the end of slavery intended as part of reconstruction to ensure the equal rights of particularly Black Americans.

At that point.

We would think about some of the early interpretations of the Equal Protection Clause, which permitted separate but equal, including Plessy versus Ferguson in 1896, which said that there can be equality even if the races are separated.

There in the context of rail cars.

Then 15 years later, we get Brown versus Board of Education decided in 1954, which says, among other things, separate is inherently unequal.

And then thinking about affirmative action, you would want to flash forward to 28 years later in 1978, thinking about the Bakke decision involving the University of California Davis Medical School.

The facts in the case are fairly simple.

The college had a policy of reserving 16 of the 100 freshman places for minorities who were screened by a different standard.

The California Supreme Court subsequently ruled that this was unconstitutional, and the university appealed to the U.S. Supreme Court.

And the Supreme Court in Bakke issued about as fractured an opinion as you could possibly have.

It was a 4-1-4 divide on the court, and there's just one justice in the middle, Justice Lewis Powell, who wrote an opinion saying that on the UC Davis Medical school program was impermissible because it had what he would regard as a racial quota rate.

The 16 slots that were set aside never the less.

He reached out and said that not all considerations of race are unconstitutional.

And in doing so, he identified Harvard College's admissions program as being a permissible use of race, where there was no sort of set number of places that were reserved for racial minorities.

And he said, just as Harvard College pays attention to geographic diversity.

A farm boy from Idaho can bring something to Harvard College's campus that a Bostonian cannot.

So a similar thing is true with respect to racial diversity.

In other words, diversity, in my view, was a major interest, really a compelling interest in our society.

So compelling governmental interest would be something that needs to be really, really important.

And in the affirmative action context, the court has said that diversity in the student body is a compelling governmental interest.

The compelling interest is for the educational institution to produce the best possible students and leaders for our country.

People paid a lot of attention because these issues of race really touched a deep chords in the American fabric.

I mean, the Bakke case in 1978 had been of, you know, page one, news magazine covers, the public was very invested in and the Bakke case and really Grutter was was a follow up and things had not gotten any more clarified or more easily handled.

And and so it was a very big deal in that year of 2000 to 2000, three.

Good morning.

My name is Barbara Grutter.

I'm the mother of two teenage sons.

And a health.

Care information technology consultant from Plymouth.

Michigan.

In 2002, the Supreme Court heard the case of Grutter v Bollinger, in which Barbara Grutter sued Lee Bollinger, then the president of the University of Michigan and the university's law school, alleging racial discrimination against her after the law school denied her admission.

Discrimination is.

Wrong.

It is personal and it hurts everyone.

There are a pair of cases involving the University of Michigan.

The Grutter case in 2003 and of course, the Gratz case in 2003.

Grutter involves the University of Michigan Law School, and Gratz involves the University of Michigan undergraduate program.

I think it's important to say that Bakke evinced a certain amount of ambivalence when it comes to affirmative action.

The court is uncertain about how legitimate affirmative action is.

It often says you can use some race, but it should not be too much.

You know, the court upholds the legitimacy of affirmative action, but it often does so through gritted teeth.

Such ambivalence is reflected in the Michigan cases in Gratz v Bollinger.

The plaintiff, Jennifer Gratz, claimed racial discrimination that deprived her 14th Amendment rights to equal treatment because the University of Michigan undergraduate admissions policy was based on a point system out of 150 possible points, 100 were required to obtain admission.

The university gave 20 points to underrepresented groups.

In Gratz, The court ruled that such an admissions policy violated the Equal Protection Clause because it was not narrowly tailored to achieve the university's asserted interest in campus diversity.

It was based on metrics and seemed similar to a quota.

But the court would look at Grutter differently.

So narrowly tailored refers to ensuring that a race conscious policy is not too broadly drafted.

What they're looking for is a fit between the policy that they adopt and the ends that the policy is supposed to serve.

So the kinds of questions courts ask when determining whether there is a tight fit include are there other obvious ways of doing the same, achieving the same objective without using.

Race in Grutter?

The court was split on the University of Michigan Law School's use of a holistic admission policy to achieve diversity.

Debate in the court and in the street was intense.

In the middle of this controversy stood Justice Sandra Day O'Connor.

The justice was a former state legislator from Arizona.

She was appointed by Ronald Reagan and had been very skeptical of race conscious decision making.

Justice O'Connor was not someone who thought that race conscious decision making is, you know, a good idea in all spheres.

Many people thought that there was no way that she would be part of a majority to uphold affirmative action.

O'Connor's path to that decision was informed by debate and even some behind the scenes positioning this term.

O'Connor had four clerks with different personal views and broad life experiences.

One, Justin Nelson, had turned down a chance to attend the University of Texas to study law following a ruling that ended affirmative action in that state.

Allyson Newton Ho, Another clerk came to the Supreme Court after serving as the president of the Conservative Federalist Society at the University of Chicago.

Cristina Rodriguez grew up in a bilingual family in San Antonio, Texas.

The fourth clerk, Emily Johnson Henn, had worked on a water project in Zimbabwe before attending law school at Georgetown.

We argued with one another back and forth and she just listened the whole time and I think she understood that we were coming at it from different ideological points of view, with different preferences about the policies, different priors, about the policies.

And that was in part by design that she created Chambers like that, we would divide up the cases.

This is what happens in most chambers.

And the person assigned to a particular case would prepare a memo for the justice providing what we thought was the best analysis of the case.

And then before conference, we would all meet together in her chambers and she expected all four of us to debate each case.

When it came to the Grutter and Gratz cases in 2000 to 2003, the process worked similarly.

There was no timing of the debates, but I do recall that we went around and around for quite a while, more than usual, and Justice O'Connor was very to the point she had no tolerance for nonsense or for extraneous analysis or extraneous navel gazing.

Allyson Newton Ho, began with a presentation of her bench memo.

It represented the view that racial classification in general was wrong, that it harmed the very people it was supposed to benefit, and that it had an undue burden on those it did not benefit.

This position proposed that the law schools stated goal of obtaining a critical mass of underrepresented students was effectively a quota.

Something struck down in Bakke 25 years earlier.

Critical mass is a term that comes up in the Michigan Law School case, and the basic idea there is that there need to be appreciable numbers of students of color on campus since in order to not make people feel as though they are isolated and importantly that they are not promoting the black viewpoint or, you know, the viewpoint for a particular racial group.

The definition of critical mass is a bit amorphous.

It doesn't have a numerical definition, and that's in part because if it did, it would look like a quota, which is prohibited under the law.

Is 2%, a critical mass.

Ms. Mahoney?

I don't think so, Your Honor.

4%?

No, Your Honor.

What?

You have to pick some number.

Well, actually, what the...

Eight, is 8%?

Your Honor, the.

Does it stop being a quota?

Because it's somewhere between eight and and 12, But it is a quota if it's ten?

Once you use the term critical mass and you're into quota land.

Your Honor.

What a quota is under this court's cases.

Is a fixed number, and there is no fixed number here.

When Cristina Rodriguez shared her bench memo, it represented the view that affirmative action was a compelling state interest in that it promoted equality and equity through diversity.

And she stressed its benefits by increasing cross-racial understanding, preparing people to live and thrive in a diverse society, and ensuring that elite institutions are open for everyone.

One perspective offered that there might be a middle ground.

It was similar to an approach that another Justice, Stephen Breyer, and O'Connor, might have already discussed.

The court can be kind of a cold place and there's not as much interaction among the justices as you might expect.

But I recall Justice Breyer as sort of an exception to that.

I recall him coming down to chambers and and they would they would talk.

And and so I just I just recall that them sort of having what I loved, what a previous speaker said about Justice O'Connor, kind of putting a human face on the court.

And I just I saw in her relationship with Justice Breyer a kind of similar interaction just to people who enjoyed getting together and talking.

Who knows?

Maybe it was about cases.

Maybe it was it was an entirely different subject, but it was just wonderful to see their there interaction off off the bench as well.

Another view in chambers was that they might be undervaluing the ability of black and Latino students to succeed.

O'Connor said nothing.

She listened to further discussion among the clerks, then indicated, okay, that'll do.

We didn't learn what Justice O'Connor's decision would be until she came back from the conference that was held after the oral argument.

The justices meet after oral argument and they each vote in seniority order on the case or they announce their vote.

She would always come back from conference and tell us how each justice voted and why.

The task of writing the Grutter opinion would go to O'Connor.

In this case.

Justice Stevens was the senior justice in the majority and he immediately assigned the case to Justice O'Connor because that was a way of ensuring that her vote would stay firm.

On June 23rd, 2003, Justice Sandra Day O'Connor delivered the majority decision on Grutter.

In an opinion filed with the clerk of the court today.

We affirm the judgment of the court of Appeals and hold that the law school's use of race in admissions is narrowly tailored to further a compelling state interest in assembling a diverse student body.

O'Connor and Breyer had a very special relationship.

They were close colleagues on the bench and also friends.

And I do think that and I know this only from my surmise, not firsthand, that Justice Breyer himself spoke to the the justice about the case and wanted very much to do whatever he and his chambers could to persuade her to uphold at least the policy in the Grutter case established by the law school.

And Justice Breyer himself joins the majority opinion in Gratz that strikes down the affirmative action policy adopted by the college.

And there was probably strategy behind that because it was a way of helping Justice O'Connor feel comfortable with the compromise position that she ultimately took.

Conservative Justice Antonin Scalia would call this a split doubleheader where affirmative action wins one game and loses the other.

Lee Bollinger and his successor, Mary Sue Coleman and I and many, many, many people at the University of Michigan were very passionate about presenting evidence to the court and to the public about the value of student body diversity.

And to make that case, we enlisted the help of a lot of people from many different sectors.

In her opinion in Grutter.

She cites a brief that was written on behalf of retired military generals who said that racial diversity is very important for the military to be able to function.

And she also cited briefs by Fortune 500 companies, including 3M, the tape maker.

That said, we need to have a racially diverse workforce.

The military amicus brief, which was signed by people from like Norman Schwarzkopf and a lot of very, very prominent military leaders talked about the Vietnam War where there was this disconnect between the white officers and the enlisted people who tended to be black and brown people.

And they talked about how the military had very consciously created efforts to have an integrated officer corps because they thought it was very important.

And I thought that that was a very strong message.

And if you listen to the oral argument, you will hear that there were questions raised about that, which is not always the case with an amicus brief.

In fact, it's quite unusual.

Mr. Kobol, may I call your attention in that regard to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any numbers, there is no way to do it, other than to give not an overriding preference, but a plus for race.

I believe race could not be use, your honor.

And if you look at the opinion that Justice O'Connor wrote for the court, it definitely mentioned the military in the business brief.

Another brief that some believed influenced O'Connor's decision came from a former clerk and friend, Kent Syverud Syverud, who, like Bollinger and Kristoff, would become a university president, argued that having a critical mass of minority students was important to an optimal learning environment.

Syveruds public position was a painful one during these times.

I spent six years of my life publicly fighting to permit affirmative action in higher education admission based on race leading to the Supreme Court's decision.

I did this while raising a mixed race family in the South.

My kids were threatened.

My wife was subjected to many racial epithets.

Their car tires were slashed.

My kids dog was shot.

There was little investigation.

Those responsible were never found.

That was then.

That was the south.

It was hard for my wife.

It was hard for my kids.

The plaintiffs were arguing that race should never be considered.

That was their argument.

And I think our counter argument was that it in certain narrowly defined instances, it was necessary to achieve a goal, and that goal was of a diverse student body.

So when you look at admissions processes, you know, there are lots of so-called preferences going around.

We call them factors, people from different parts of the country, people internationally, athletes, legacies, people with all kinds of different talents.

And racial and ethnic diversity is simply one among many things that we do to try to have a very rich student body that reflects the array of the human population, and in that you really get a better educational experience, while also helping the society achieve.

The great promise of Brown versus Board of Education.

The next thing that Grutter established is how can schools look at race within the admissions process and the important things that the court said there was that race can be considered, but it needs to be a part of a holistic review process.

So in other words, that each individual is not reduced to their race, but that race is a consideration as a part of their whole application.

O'Connor's majority opinion was a victory for affirmative action and the clerks who had worked with supporting justices during the case.

But then, in a twist.

She did something very unusual and she said, basically, we're not ruling forever.

It has been 25 years since Justice Powell.

First.

Suggested approval of the use of race to further an interest in student body.

Diversity.

In the context of higher education.

We expect that 25 years from now, the use of racial.

Preferences will no longer.

Be necessary to further the interest that we approved today.

The clerks will all very surprised to see a draft opinion that included the statement that she hoped that affirmative action would no longer be necessary in 25 years.

I think that she felt like the cost to the country would be too great in striking it down, but that it was also a divisive remedy.

So she wrote what some people would regard as a sunset provision into this constitutional provision.

I think that was a statement hope that we would come to a place in our society where we wouldn't need to act quite as affirmatively in order to achieve diversity on campus.

It wouldn't take 25 years for O'Connor's decision in Grutter to be tested.

So the Fisher case really began in 1992, when Cheryl Hopwood and three other sued the University of Texas School of Law, arguing that their race was used as a factor to deny them admission.

They ultimately won their case at the Fifth Circuit Court of Appeals, and the states of Texas, Louisiana and Mississippi were forbidden from using race.

Enrollment because of that, at the University of Texas dropped significantly.

But the Texas legislature introduced a race neutral plan called the top 10% plan.

This plan entailed any student who graduated in the top 10% of his or her high school could be automatically admitted to the University of Texas, regardless of their SAT scores.

And that program results in racial diversity because of the persistence of racial isolation in our high schools and so That is the backdrop against which the Texas 10% plan was adopted.

Here we've got kind of a happy ending.

We've got to no more race boxes.

Kids aren't being given demerits because they're the wrong race.

But now we've got this individualized, unique racial diversity at the University of Texas.

When the Grutter decision was announced in 2003, however, the University of Texas believed it took precedent over Hopwood.

The day that came out, then University of Texas President Bill Powers said they were going to reintroduce race based affirmative action.

That opinion in the Grutter case in 2003 specifically said colleges and universities should attempt to use race neutral means to achieve diversity before using race based preferences.

The University of Texas ignored that and went ahead and reintroduced race, and that was the beginning of Fisher versus the University of Texas.

We believe the educational benefit of diversity are so important that they're worth fighting for all the way to the United States Supreme Court.

Our lawyers this morning effectively made the case to the justices that diversity, ethnic and otherwise benefits all of the students on our campus.

That case went up and down to the Supreme Court twice.

But ultimately, Justice Kennedy held that affirmative action remains or race conscious admissions remains a permissible practice in college admissions.

The Fisher decision upheld the precedent set in Grutter.

Affirmative action had survived another close call.

Affirmative action has been administered last rites many times and nevertheless, it remains with us.

And it's been preserved by a series of improbable saviors.

Justice Powell was the chairman of the Richmond School Board at the time that Brown versus Board of Education was decided.

And he disliked that decision and fought it tooth and nail.

Nevertheless, he ultimately comes to save race conscious admissions.

Justice O'Connor who I wrote an important opinion for the court in Grutter and had been very skeptical of race conscious decision making in the context of electoral districts.

And so the idea that she would ultimately turn around and issue a decision preserving affirmative action came as quite a surprise.

And Justice Kennedy, in the Fisher case, the University of Texas case, had been very skeptical of racial classifications of individual students.

Affirmative action survived, as it had for 40 years, but once again, its legitimacy and existence is on the line.

In the cases that are now before the court, the court's being asked to overturn Grutter.

So the cases take us right back to the beginning.

If you're going to overturn Grutter, then you're going to overturn Fisher.

Youre going to overturn Bakke, And you're going to say race may not be taken into account in college admissions either in a public university in North Carolina or the private university.

Harvard, these are carefully selected, you know, by this right wing foundation supported group that has brought both of these cases.The North Carolina case, It's just back to basics is same old, same old.

It's a repeat of Grutter.

The Harvard case is different because it was framed as, Oh, Harvard discriminated against Asian applicants.

Harvard has had a long, ugly history of discriminating against first religious minorities.

jewish applicants.

And throughout the throughout the early nineties, Asian-American applicants in a number of articles were written in the in the in the 1990s and the early 2000s about the the unusual patterns that exist at Harvard and Yale and some of the other Ivy Leagues when it comes to Asian applicants being admitted.

Admissions Impossible was a two page little article that I wrote in 1983 when I was an undergraduate Harvard.

And at that time, we wanted to dispel myths about Asian-Americans that we thought hurt Asian-American students in the admissions process across all of these different campuses.

It didn't focus on Harvard in particular.

But but we saw that at some of the schools, some of the students we heard from some of the students that stereotypes were used against them.

Students for Fair Admissions and the lawyers wrote about that particular piece in their filings.

They wanted to basically say that all of these stereotypes, all of these images of Asian-Americans, all of the good and bad aspects of Asian-Americans shouldn't be considered at all in the admissions process.

But in fact, what I was trying to say, that if you were at least aware of these stereotypes, you know, good or bad, that you actually would enhance or help Asian-American students instead.

So I think they were twisting my words to say that any time you see a person and their race is actually something very bad.

But the reality is, in life, we're all race conscious whether we know it or not.

Two of the justices who heard the cases at the Supreme Court, Justices Clarence Thomas and Sonia Sotomayor, both are graduates of Yale Law.

Justice Thomas is perhaps the foremost critic of affirmative action.

He says that it casts doubt on the achievements of people of color.

And justice Sotomayor is perhaps the foremost defender of affirmative action.

And so it's fascinating in the way that elite lawyers who were trained at the very same law school arrive at something close to diametrically opposite conclusions about the constitutionality of affirmative action.

Justice Thomas, of course, dissented in Grutter In his dissenting opinion, Its very fascinating Its intensely personal.

And he basically tells a story that, you know, you white people may think you're doing us black people a favor by having affirmative action, but actually its very damaging, its very wounding.

You know, his justification is that he believes that it casts a shadow over the achievements of racial minorities, that there are lingering doubts about whether people made it there on their merit or instead whether they made it, you know, through what he would regard as the back door.

And, of course, he himself was the recipient of affirmative action, both in college and in law school.

And he has had for his entire life a very hard time dealing with that fact.

I contrast him with Justice Sonia Sotomayor.

Sonia Sotomayor was also the recipient of affirmative action in college at Princeton.

And what she will say is, yeah, I was the recipient of affirmative action and look what I made of it.

Look what I've done.

The argument for affirmative action would be elite institutions should have racial diversity.

Leading law schools, among other institutions, create leaders for the entire nation.

Many people would say that Justice Powell's justification for affirmative action, the diversity rationale, is not the strongest justification.

Other people would say that remedying past and ongoing racism in American society is a stronger justification than the diverse direction.

Opponents of affirmative action would say that these programs judge people according to race, and that's what Brown versus Board of Education was designed to eliminate.

Affirmative action should not be a system of reparations, which I think is what is really driving most affirmative action programs in the United States today.

What has changed since Grutter?

What has not changed since the Grutter case is that there are two conditions that we talked about.

One is that people were living in communities that were not always fully racially integrated.

And the other factor is that the pipeline did not always provide the opportunities for students of color and underrepresented groups, particularly.

The most important difference to me between Grutter versus Bollinger and the cases that are now before the court is the court itself.

In Grutter, Justice O'Connor was joined in her majority opinion by Justices Stevens, Souter, Ginsburg and Breyer.

All of these justices have left the bench.

Today, Conservatives on the court, each appointed by Republican presidents, hold a 6 to 3 majority and have shown a willingness to work quickly and to overturn precedent.

I can recall having lunch with her in one of the courtyards and she said, look around this courtyard and you'll see one of one of the most important parts of this court.

And I'm sort of looking around and I don't see, you know, much of note other than her, you know, and at the bottom of these lamp posts are these turtles.

And the turtles for Justice O'Connor are symbols the law doesn't move too fast.

Right, that go slow.

And she was many respects, I think, a small c conservative interested in trying to conserve American society.

She just wanted to solve the problems that people brought to the court.

And that's not what we're seeing today.

What we're seeing today is a court that's reaching out to invite people to bring those cases that will serve as vehicles for the conservative majority to accomplish what it wants to accomplish.

So what will the impacts be if the court decides to end race conscious admission policies?

I suspect that General Counsel's offices at universities across the country are already about strategies for a world in which race conscious decision making is no longer permitted.

In the years since California's prop 209 ended affirmative action in admissions, California schools have employed strategies that have improved diversity on some campuses.

Such efforts include increasing minority outreach and financial aid and diversifying admissions offices.

One of the things that every college and university can do to bolster their incoming freshman class, to make sure it's diverse, is implement something that I think is called socio economic affirmative action.

That is lower the bar a little bit for kids who have attended schools that don't send many kids to college.

The intent is to level the playing field so that people of color can be fairly and fully seen in the admissions process.

If colleges like Harvard and Yale and Princeton will end their preferential treatment for legacies and rich donors, they're going to have a far easier time creating an individualized, uniquely diverse freshman class.

Another point of contention is the use of standardized tests like SATs and ACTs in the application process.

They fail to capture a lot of the strengths of character that can help a student to succeed in college.

Some schools have chosen to go test optional, which means that students don't need to submit standardized tests to in order to achieve admissions.

Some schools believe that they are helpful in understanding if somebody has certain talents.

So on one end of the spectrum, on the most extreme end of the spectrum, the court could say, you may not take race into account in any manner, shape or form.

The Constitution requires race blind admissions go by and SAT scores go by transcripts.

Of course, in Harvard's case, that's ridiculous because Harvard gets tens of thousands of applications and could fill a class many times over with straight 800 S.A.T.s and straight A's.

So other than throwing a bunch of applications down the stairs and seeing which land first, there's got to be some way of deciding among many highly qualified applicants who's going to get in.

And is the court really going to be the admissions officer for every college in the country?

No one is suggesting that Harvard go to an admissions policy that just takes a student's GPA and SAT scores and forgets about the rest.

Harvard can reach out to kids who have come from unique backgrounds.

The kids who have grown up in rural areas.

Kids who have grown up in urban areas, kids who are oboe players and kids who like jazz and kids who are water polo players.

That's fine.

But what we argue Harvard cannot do or any school can do is, classify kids by race and ethnicity and treat them differently because of their race and ethnicity.

On October 31st, 2022, the court heard oral arguments in SFFA, predictably fraught with tense exchanges.

The following have been edited for brevity.

I've heard the word diversity quite a few times and I don't have a clue what it means.

It seems to mean everything for everyone.

Yes, Your Honor.

So first we define diversity the way this court has and its court precedents, which means a broadly diverse set of criteria that extends to all different backgrounds and perspectives and not solely limited to race.

So tell me what the educational benefits are.

I think most pertinent to the question that you asked is the actual truth seeking function of learning in a diverse environment.

I would direct the court to the major American businesses brief, which discusses a whole extensive, rigorous, peer reviewed literature that diverse groups of people actually perform at a higher level.

Well, I guess I don't put much stock in that because I've heard similar arguments in favor of segregation, too.

What is your goal and how will a court ever be able to determine whether your goal has been reached?

Our goal is to achieve the educational benefits of diversity.

And I understand that that is a qualitative standard that is difficult to measure.

Why can't you do it through race neutral means?

Because I think.

Everybody has agreed.

All our cases indicate that race neutral means are better.

If one can achieve those kinds of objects that you were talking about that way, so why can't you after 20 years?

So I can't say that we are able to get there all the way right now with race neutral alternatives, but we are trying to make progress toward that goal.

The respondents argue that if you don't consider race, yeah, you won't be able to consider the whole person in the admissions process.

How do you respond to that?

This court has always said that racial classifications are necessarily invidious, and certainly it is possible that that an applicant, for example, could write something in which race provides a context for their experience.

But just considering race and race alone is is not consistent with the Constitution.

Toward the end of the arguments, the lines remained divided.

The U.S. solicitor general reinforced maintaining the use of race as a criterion for admissions.

Overruling Grutter would have devastating effects on our nation's efforts to move ever closer to a more perfect union, where our nation's diversity is a source of its greatest strength.

And I think the court should not take the destabilizing step of overruling precedent here.

When Harvard's lawyers argue that there was little difference between the school using race to select an applicant and giving preference to an oboe player.

Chief Justice Roberts replied, We did not fight a civil war about oboe players.

We did fight a civil war to eliminate racial discrimination.

And that's why it's a matter of of considerable concern.

When she wrote the majority opinion affirming race conscious admissions policies in Grutter, Sandra Day O'Connor expressed the hope that 25 years on, we would not need affirmative action.

Here we are, not quite 25 years, but these issues have not gone away.

And that's clear from the cases that the court has undertaken to decide this term from Harvard in North Carolina.

We're still fighting those battles.

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