Tuesday, June 25, 2013

What Does the U.S. Supreme Court Decision Mean for Affirmative Action's Future?

DEBATE AIR DATE: June 24, 2013

What Does the Supreme Court Decision Mean for Affirmative Action's Future?


The Supreme Court ruled to send a case involving affirmative action at the University of Texas back to a lower court. Gwen Ifill gets debate from Lee Bollinger of Columbia University and Gail Heriot of University of San Diego School of Law on the use of affirmative action in higher education.

GWEN IFILL: For more on the court's affirmative action ruling today, we talk to two experts who have been following the case, and the issue, closely.

Lee Bollinger is the president of Columbia University. He's played a leading role in two major court cases on affirmative action. And Gail Heriot teaches at the University of San Diego Law School and is a member of the U.S. Commission on Civil Rights.

LEE BOLLINGER, President, Columbia University: Thank you.

GWEN IFILL: Starting with you, Lee Bollinger, how do you interpret this very narrow ruling?

LEE BOLLINGER: Well, I think the first thing to note -- and it's really important -- is that the court and seven justices affirmed the Grutter case and therefore also the Powell opinion in Bakke. And every time the court does that, it creates another precedent.

WATCH: Supreme Court Sends Texas Affirmative Action Case Back to Lower Court
And under the doctrine of stare decisis, that makes affirmative action in higher education all the more secure. We don't really know what the decision means in terms of additional proof. The court was quite big. It's important to realize that there were both conservative and liberal justices that agreed to that.

So, we will just have to see what the meaning of that is.

GWEN IFILL: Gail Heriot, President Bollinger basically said they didn't knock it down, so that's good news. What do you think?

GAIL HERIOT, University of San Diego Law School: Well, as Justice Scalia points out, the petitioner didn't actually challenge Grutter in this case. So, that's an issue for another day.

But I agree that this is not an earth-shaking opinion. Ms. Fisher did win the case. The case will now be remanded back to the Fifth Circuit. But essentially what the court did was clarify when it was willing to defer to academic expertise and when it wasn't willing. The Fifth Circuit had interpreted the previous decision to require it to defer not just on whether or not diversity is a compelling purpose, but also whether the particular policy involved was narrowly tailored to serve that purpose.

GWEN IFILL: Well, let me ask you both about some of the terms of art which we heard Marcia Coyle describe, strict scrutiny and narrowly tailored.

Lee Bollinger, when they say strict scrutiny in this case, are they talking about -- is the burden on colleges or universities or is the burden on the court that sent this case, the Fifth Circuit?


These are technical terms of the Equal Protection Clause, and I think the key thing for people to know is that when universities -- and let's be clear -- I mean all the universities and colleges all across the country for several decades have been trying to achieve racially and ethnically diverse student bodies, as well as geographically, internationally, just all kinds of diversity, because it's believed that that is the best educational environment.

So, as they do this, the Supreme Court has said, we believe this is consistent with the 14th Amendment. But it's also important for you to provide evidence that you have considered alternatives or that other alternatives don't work and also that the particular admissions process that you have is actually linked to the educational benefit you want.

So there is a sense that universities will have to provide more evidence, perhaps more evidence, to support the programs. That shouldn't be a problem. The underlying principle is secure and sound. That's the most important thing. And universities are capable of providing that evidence.

GWEN IFILL: Gail Heriot, even though the court didn't rule on this, we saw Justice Thomas had a pretty strong concurrence, actually. He agreed with the outcome, but he disagreed that they didn't go even farther. Do you see this going farther now?

GAIL HERIOT: Yes, I thought Justice Thomas' opinion was by far the most interesting part of the court's actions today.

The thing that Justice Thomas talked about was the research that is now indicating that affirmative action is backfiring, that racial preferences actually do the opposite of what they are intended to do, that we would have more African-American physicians, more African-American scientists, engineers, lawyers, college professors -- there's research in each of these areas -- if only students attended the schools where their academic credentials put them towards the center of the class, that it's really not a good thing to attend a university where your academic credentials put you to the very bottom of the class.

Such a person is less likely to major in tough subjects like engineering, mathematics, science, and go on to medical school or to go on to law school.

GWEN IFILL: Let me ask Lee Bollinger to reply to that, because, obviously, Justice Ginsburg, who is the one dissenting justice, had the completely opposite opinion.

LEE BOLLINGER: I mean, this is called the mismatch thesis. And it's, I think, widely -- discredited is perhaps too strong a term.

GAIL HERIOT: Way too strong.

LEE BOLLINGER: The way this works -- the way this works is that admissions offices look at GPAs, standardized test scores. They decide on a pool of candidates whom they know can do the work. They then look for all kinds of things.

They look for geographic diversity for a long time. They look for different experiences in life. We have 500 veterans at Columbia today. We take into account the fact that there have been experiences that these individuals have had that really add to the richness of the educational experience. Race and ethnicity are simply two among many.

And the students who are admitted at universities across the country are well-qualified and capable of doing the work. So it's a great success story actually of several decades of universities and colleges bringing different groups of people together.

It's important to remember that we have still a very segregated K-12 system in the country. Over 30 percent of African-American students still go to schools that are more than 90 percent black. So this is important.

GWEN IFILL: But let me ask you both, starting with you, Gail Heriot, about public mood. Since 2003, since the Grutter case we were talking about, the University of Michigan case that has Lee Bollinger's name on it, the public's mood has shifted on affirmative action.

Should that be significant? Should that be taken into account?

GAIL HERIOT: I think it's true that the public view has become even more against racial preferences than what it was before, although, in truth, these polls have been taken since the Bakke case. And it's always been the case that the public is quite strongly against racial preferences.

The place where you see support for racial preferences in admissions is mostly among college administrators, like Dr. Bollinger, Mr. Bollinger.

Getting back to the mismatch research, it's really gotten to the point where it's quite extensive. And there is absolutely nothing that rebuts the four major studies showing that, in the area of science, mathematics and engineering, that racial preferences are doing more harm than good. The research is little bit less developed in the other areas.

GWEN IFILL: Lee Bollinger?

LEE BOLLINGER: Well, let me answer the question you asked about the popular support and its relevance.

It depends entirely on how the question is asked. So, if you ask, should certain races be given preferences in admissions? A majority of people will respond no. But if you ask whether colleges and universities should try to build diverse student bodies racially and ethnically and consider race, a majority will support that.

This is also the Constitution. And for many years, since Brown vs. Board of Education, this country has worked on its past, on 200 years of slavery and 100 years of Jim Crow laws. And we still have a ways to go on that. That has been the ideal. And Brown vs. Board of Education wasn't decided by popular vote, and it's really the Constitution, the 14th Amendment that we're talking about.

GWEN IFILL: And we will leave it right there.

Lee Bollinger, president of Colombia University ...


GWEN IFILL: ... and, Gail Heriot, University of San Diego School of Law, thank you both.

GAIL HERIOT: Thank you.


GWEN IFILL: The court will be handing down additional decisions tomorrow. You can follow those developments on SCOTUSblog, which you can find on our home page beginning at 10:00 a.m., as well as coverage of still-pending challenges to the Voting Rights Act and same-sex marriage.

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