Could A Conservative Court End Affirmative Action? | Crooked Media
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January 25, 2022
What A Day
Could A Conservative Court End Affirmative Action?

In This Episode

  • The Supreme Court announced yesterday that it will hear cases on the right of universities to consider race in admissions. The court has historically ruled that universities have a limited right to consider an applicant’s race during the admission process, but the court’s conservative majority could upend decades of precedent. Lawyer and journalist Jay Willis joins us to discuss what we can expect, what this might mean for affirmative action, and the future of higher education.
  • And in headlines: NATO said that its allies are sending military reinforcements to Eastern Europe amid tensions at the Ukrainian border, the Burkina Faso military announced that it seized control after overthrowing President Roch Marc Christian Kaboré, and four attorneys general filed a privacy lawsuit against Google.


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Gideon Resnick: It’s Tuesday, January 25th. I’m Gideon Resnick.


Josie Duffy Rice: And I’m Josie Duffy Rice, and this is What A Day, where we’re happy to live in a world where Joe Biden doesn’t realize he’s saying his internal monologue out loud into a microphone.


Gideon Resnick: Yeah, we’re just lucky that this time he’s calling Peter Doocy a stupid son of a bitch after a press conference and not thinking about what he’d like to do to an ice cream cone.


Josie Duffy Rice: Oh God!


Gideon Resnick: On today’s show, NATO is sending military reinforcements to Eastern Europe amid tensions at the Ukrainian border. Plus, four attorneys general filed a privacy lawsuit against Google.


Josie Duffy Rice: But first, the Supreme Court announced yesterday that it will once again decide whether or not the consideration of race in university admissions violates civil rights laws. As recently as 2016, the court has ruled repeatedly that universities do have a limited right to consider an applicant’s race when evaluating potential candidates for admission. However, the court’s decisive conservative majority could upend decades of precedent on this issue. The cases, which are being reviewed together, accuse Harvard and the University of North Carolina of discriminating against Asian-American students. In Harvard’s case, the lawsuit alleges that Asian-American applicants were discriminated against on the basis of subjective standards to gauge personal qualities like leadership. At UNC, the plaintiffs argue that the university had discriminated against these applicants, as well as white ones, in favor of admitting Black, Native American, and Hispanic applicants. The fact that Harvard is a private institution, while UNC is public, means they’re subject to slightly different legal standards.


Gideon Resnick: Yeah, and both cases were brought by Students for Fair Admissions, the group founded by the conservative legal activist Edward Blum. The lower federal courts that have previously heard both cases all ruled for the universities, but as we mentioned, the makeup of this Supreme Court is vastly different since the court’s last time tackling this issue in 2016, when it upheld the admissions process at the University of Texas at Austin. Only two members of that majority in that decision are currently on the court. And we’ve already seen numerous indications of this conservative majority’s eagerness to take on massive cases pertaining to abortion, guns, the pandemic, and more.


Josie Duffy Rice: So it’s not looking good. For more on this, what we can expect, and what this might mean for affirmative action in the future of higher education, we have with us my good friend, Jay Willis, lawyer and journalist, and the Editor in Chief of Balls and Strikes, a progressive news site that covers the Supreme Court.


Jay Willis: Happy to be here to talk about America’s most important constituency: white kids who are mad that they didn’t get into Princeton.


Gideon Resnick: Exactly.


Josie Duffy Rice: Can you tell us a little bit about the cases that the Supreme Court decided to hear today?


Jay Willis: Yeah. So there are two consolidated cases about admissions policies at Harvard and the University of North Carolina, but I’m just going to call them together the Harvard affirmative action case, because that’s what everyone who’s been watching this for the last decade or so has been calling it. And it’s really a long bubbling challenge to the use of race-based preferences and admissions in higher education. I won’t go through the, like, deeply exhaustive details of how Harvard admissions policies work, but the upshot the challengers say, is that they discriminate against Asian-American applicants at the expense of African-American, Hispanic and native applicants. You see what these people did here? They found someone who’s not white to be leading this charge. But the case isn’t just about like these specific admissions policies at Harvard and UNC, it’s also just a facial challenge to the existence of affirmative action in higher education in general, so whether it’s allowed at all. And you see kind of a parallel with these discussions that we’re having about abortion access, right, there’s always this litigation over different anti-choice laws and whether that’s allowed under Roe. Conservatives have been steadily chipping away at that for decades. And we’re seeing the same thing with affirmative action now, right, where not only are we litigating specific affirmative action policies, but they’re also asking the Supreme Court to just get rid of it altogether.


Gideon Resnick: So Jay, does it seem as though these are going to be narrowly decided or are they going to be taking on the question of affirmative action writ large?


Jay Willis: So the reason that there’s, I guess, reason to fear that this case is the end of affirmative action is sort of this case’s place in the context in the history of challenges to affirmative action. Maybe you’ve heard of this lady Abigail Fisher, petitioner in Fisher v. University of Texas? It was a series of Supreme Court cases that was basically the conservative legal movement’s last big push to end affirmative action, and that upheld a affirmative action program at the University of Texas. And the vote there was four to three upholding that—no Kagan, she had recused herself because she had worked on that case while she was solicitor general, and no, Scalia, because he was dead. So in the majority, you had Kennedy, Ginsburg, Breyer, and Sotomayor. In the dissent, you had the Conservatives, Alito, Roberts, and Thomas. So if you’re doing some math, two of those justices who were in the majority are now Brett Kavanaugh and Amy Coney Barrett, and Scalia is now Neil Gorsuch. Not great. And you’re going to see this pattern in the abortion context and affirmative action and many others, just this increasingly aggressive position from conservative litigators taking extreme positions that just ask the court like, Look, let’s stop tinkering around the edges here, lets just talk about what we really want to talk about. Let’s not even bother to put a legal gloss on it.


Josie Duffy Rice: Can you tell us a little bit about what the precedent has been around affirmative action? So you mentioned Fisher, which was the most recent case, but there is kind of a longer history of affirmative action precedent. So what does that look like?


Jay Willis: So a lot of people think that affirmative action is about quotas, you know, strict numerical set asides for minority students, and that’s not true at all. The court barred those way back in 1978. It said that schools can consider race for the purpose of putting together a diverse student body, but you can’t just make it a numbers game. So as it exists today, affirmative action means that school administrators can consider race, but only as kind of a soft factor, right, part of a—the phrase is “a holistic review process” that evaluates each applicant on an individual basis. And in my view, this acknowledges the basic reality that a system where access and success is based heavily on like test scores and GPAs and neighborhood schools and wealth and tutors and stuff, is not going to account for group differences in access to those things caused by deep-seated histories of racism and discrimination that continue today. However, I am not a conservative judge, so . . .


Gideon Resnick: Right. To sort of ask the obvious question here too, like what impact is this potentially going to have on higher education writ large?


Jay Willis: If affirmative action were to be tossed it is going to create student bodies that look a lot less like the country at large and more like the very narrow slice of society that is like the kids of Fortune 500 executives. So in a 2003 case that upheld the use of race as kind of this soft factor, the justices placed a lot of weight on briefs that were filed with the court by businesses, by the U.S. military, that talked about how important diversity was to success—success and business, success in national defense—and without affirmative action, you’re going to have access to some of these, like most elite institutions that really act as like tickets to upward socioeconomic mobility, you’re going to have those by and large limited to already wealthy people for whom that’s not going to do a whole lot that they don’t already have.


Gideon Resnick: To that end, what other implications could all of this have beyond just sort of the potential like restructuring of the way that higher education looks?


Jay Willis: The strangest thing about kind of what gives away the game for critics of affirmative action is that they kind of ignore the most lucrative, the biggest leg up in the admissions game, and that’s legacies and children of wealthy donors. So there’s a 2017 study that found that 36 schools, I think five Ivy League universities, there were more students in the student body from the top 1% than the bottom 60%.


Gideon Resnick: Wow.


Jay Willis: Harvard’s class of 2021, 29% legacy students. If you had relatives who went to Harvard, you were about three times more likely to get in than if you didn’t. And these applicants—surprise—about two thirds white. This litigation over affirmative action, it doesn’t address that. It doesn’t address sort of the perpetuation of wealth and status through admissions to higher education. It’s just targeted at racial minorities, which of course is just part of the conservative legal movement’s favorite longest-running culture war. Right?


Gideon Resnick: I have some guesses as to how you’re going to respond to this, but are you surprised that they are taking up this case right now?


Jay Willis: Yeah, it’s not a surprise at all. The same people who pushed Abigail Fisher’s case are behind these cases. It’s a conservative activist group that basically combs the country for plaintiffs who can be good challengers to these policies and just tries to take another crack at it every time. And so far, they’ve run into moderate to conservative courts that are just squishy enough to allow some semblance of affirmative action to survive. But with this six justice conservative supermajority, like now’s the time, they can’t wait to do it. The University of North Carolina case, a federal appeals court hasn’t even heard on it yet. All we have is a district court decision from that, and the plaintiffs are petitioning to go straight to the Supreme Court. You have to remember that these lawyers who are getting appointed to the bench now, these conservative justices, they have been steeped in the conservative legal movement in this ideology for decades, for their entire legal careers. They have been part of a movement that is centered on undoing Roe, undoing Bakke and Grutter, the affirmative action cases, undoing some of the more progressive decisions that came from the Warren Court. Like, this is their chance to etch their names into history. Why wait a couple of years?


Josie Duffy Rice: All right. That’s depressing.


Gideon Resnick: Well. Jay, thank you so much for joining us to talk about where our highest court in the land is going these days. We really appreciate your time.


Jay Willis: Thanks again for having me. I’m sorry whenever we get together to talk about the Supreme Court, it’s just to talk about the grimmest shit imaginable.


Josie Duffy Rice: More on all of that soon, but that’s the latest for now. We’ll be back after some ads.


[ad break]


Gideon Resnick: Let’s wrap up with some headlines.


[sung] Headlines.


Gideon Resnick: NATO said yesterday that its allies are sending troops, ships, and fighter jets to Eastern Europe amid growing fears of a Russian invasion of Ukraine. While Russian diplomats have repeatedly denied plans to invade, the country has amassed over 100,000 troops along the Ukrainian border in recent months. Embattled UK Prime Minister Boris Johnson warned on Sunday that Russia had gathered enough troops, 60 battle groups to be exact, for a quote “Lightning war that could take out Kiev” end quote. Britain has joined the US in withdrawing their diplomats families from the Ukrainian embassy amid concerns for their safety. These heightened fears come just weeks after the U.S. and Russia failed to come to an agreement in their security talks in Geneva. Under orders from President Biden, US Secretary of Defense Lloyd Austin put over 8,000 troops on alert for possible deployment to Eastern Europe. At the time of recording, no decision to deploy has been made by the U.S. Whoooh.


Josie Duffy Rice: Yeah, it’s quite scary. The military of Burkina Faso announced yesterday that it has seized control after overthrowing the West African nation’s president, Roch Marc Christian Kaboré. This makes Kaboré the third West African leader, to be overthrown in the last eight months. Captain Sidsoré Kader Ouedraogo said yesterday that soldiers had suspended the country’s constitution, dissolved the government, and closed the nation’s borders, Kaboré, who was democratically elected in 2015, has faced harsh criticism from the military over what they allege is his failure to ensure safety after violence by militant groups displaced 1.4 million people and caused over 2,000 deaths in the past year. Kaboré’s whereabouts are currently unconfirmed, and Burkina Faso’s Defense Minister says that the government has reached out to the military to hear their demands. United Nations Chief Antonio Guterres said that he strongly condemns any attempted takeover of government by the force of arms. And the U.S. Department of State said it was quote, “deeply concerned” about the coup and quote, “urged a swift return to civilian rule.”


Gideon Resnick: In both real estate and Big Tech invasions of privacy, it is all about location, location, location. A new lawsuit speaks to the Big Tech part of this well-known saying. Attorneys general from D.C. and three other states sued Google yesterday, claiming that the company deceived customers so that they could harvest their location data even after users had opted out of tracking location history. This kind of data is crucial to Google’s business, it helps them to target users and make money from advertisers. To preserve that cash flow, the lawsuit alleges that the company employed a variety of deceptive tactics that includes intentionally confusing menus and messages telling users that apps needed location data to function even if they did not. The offenses listed in the suit are said to have taken place between 2014 and 2019. For its part, Google described the claims as inaccurate, with one spokesperson saying quote, “We have always built privacy features into our products and provided robust controls for location data.” Personally, I only turn on location tracking when I’m at the gym so Google thinks I am literally always getting absolutely ripped. The suit aims to stop Google from engaging in these practices and stick the company with a fine.


Josie Duffy Rice: And finally, an update on our favorite anti-vax singer. The judge presiding over Sarah Palin’s defamation suit vs. The New York Times announced Monday that the former Alaska governor tested positive for coronavirus. Judge Jed Rakoff postponed the trial start date to February 3rd, confirming that Palin had tested positive three times, and announcing to the court that quote, “She is, of course, unvaccinated.” Not wholly surprising for a person who said last month she would get vaccinated quote, “over her dead body.” In case you missed yesterday’s episode, Palin is suing the New York Times and its former editorial page editor for allegedly damaging her reputation after a 2017 editorial falsely suggested an image produced by Palin’s PAC led to the 2011 shooting of Representative Gabby Giffords. Yesterday’s diagnosis won’t be the first COVID rodeo for Palin, who announced her first infection in March of 2021. We can only assume she contracted it back then to get out of a different unfortunate adult obligation, like a dentist appointment. Just kidding. This is legally a joke, so please don’t slap us with a defamation suit.


Gideon Resnick: Yeah, please. And I’m also personally very invested in what happens in the investigation about her going into a restaurant in Manhattan, potentially with active COVID.


Josie Duffy Rice: Yeah man.


Gideon Resnick: What’s going on there?


Josie Duffy Rice: You know what? The rules are different in New York than they are in Alaska.


Gideon Resnick: Yeah, they certainly are.


Josie Duffy Rice: So one should let her know.


Gideon Resnick: Maybe, maybe the rules are different for people that have been on The Masked Singer going into restaurants in New York that I don’t know about.


Josie Duffy Rice: I will always remember her as a masked singer first, almost Vice President second.


Gideon Resnick: Exactly as it should be. And those are the headlines. That is all for today. If you like the show, make sure you subscribe, leave a review, google how to sue Google, and tell your friends to listen.


Josie Duffy Rice: You should probably Bing how to sue Google if you’re going to look it up. And if you are into reading, and not just the newest tricks to get out of court like me, What A Day is also a nightly newsletter. Check it out and subscribe at I’m Josie Duffy Rice.


Gideon Resnick: I’m Gideon Resnick.


[together] And we’re at the gym, Google!


Gideon Resnick: Yeah.


Josie Duffy Rice: Always.


Gideon Resnick: Always. Even now.


Josie Duffy Rice: I have been to the gym exactly zero times this year, last year, and the year before, but I just leave my cell phone there all the time so Google feels like I live there.


Gideon Resnick: That is right. What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Jazzi Marine and Raven Yamamoto are our associate producers. Our head writer is Jon Millstein, with writing support from Jocey Coffman, and our executive producers are Leo Duran and me, Gideon Resnick. Our theme music is by Colin Gilliard and Kashaka.