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Supreme Court Poised to Strike Down Affirmative Action in Cases Brought by Conservative Activist

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The majority-conservative Supreme Court appears poised to strike down race-conscious college admissions decisions, after hearing arguments Monday against Harvard and the University of North Carolina. The plaintiffs argued the admissions process discriminates against white and Asian American applicants by giving priority consideration to Black, Hispanic and Native American applicants. The decision could jeopardize affirmative action initiatives implemented after the civil rights movement to give more equal opportunities to people disadvantaged by centuries of racial discrimination and the legacy of slavery. John C. Yang, president and executive director of Asian Americans Advancing Justice, says his organization investigated the allegations against Harvard and found no discrimination, but rather that “allowing race to be considered benefited Asian Americans.” Fatima Goss Graves, president and CEO of the National Women’s Law Center, says rescinding affirmative action programs risks harming students of color and will dramatically decrease the racial diversity that has shown to benefit colleges.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The Supreme Court heard arguments Monday in two cases that aim to end race-conscious admissions decisions by colleges and universities. During nearly five hours of arguments, the court’s far-right supermajority indicated it’s open to ruling that the consideration of race in the admissions process violates the Equal Protection Clause of the Constitution and the Civil Rights Act.

The two cases involve Harvard and the University of North Carolina. In both cases, plaintiffs argued the school’s admissions process discriminates against white and Asian American applicants by giving extra preference to Black, Latino and Native American applicants. In the Harvard case, the plaintiffs argued Asian American applicants faced specific discrimination.

This is Supreme Justice Clarence Thomas, the only conservative justice of color, questioning the lawyer representing University of North Carolina, Ryan Park.

JUSTICE CLARENCE THOMAS: I didn’t go to racially diverse schools, but there were educational benefits. And I’d like you to tell me expressly, when a parent sends a kid to college, they don’t necessarily send them there to have fun or feel good or anything like that. They send them there to learn physics or chemistry or whatever they’re studying. So, tell me what the educational benefits are.

AMY GOODMAN: Meanwhile, the Supreme Court’s first Black woman justice and newest member, Ketanji Brown Jackson, recused herself from arguments in the Harvard case because of her ties to the university, but she was a prominent voice in the first half of the arguments involving the University of North Carolina. She repeatedly asked about the harm in considering race as a factor in admissions to ensure a diverse student body. Here she questions attorney Patrick Strawbridge, who argued on behalf of so-called Students for Fair Admissions, a group founded by white conservative lawyer Ed Blum, who has brought multiple cases before the Supreme Court that challenge race-conscious policymaking as unconstitutional.

JUSTICE KETANJI BROWN JACKSON: I’m hoping to get your reaction to this hypothetical. The first applicant says, “I am from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school.”

The second applicant says, “I’m from North Carolina. My family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school.”

Now, as I understand your no-race-conscious-admissions rule, these two applicants would have a dramatically different opportunity to tell their family’s stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to, because his story is, in many ways, bound up with his race and with the race of his ancestors.

So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, just like the other person has their personal background family story honored — why is telling him “no” not an equal protection violation?

AMY GOODMAN: Justice Ketanji Brown Jackson in oral arguments Monday. The Supreme Court’s rulings in the two cases are due next year, likely in June.

For more, we’re joined by two guests from Washington, D.C. John Yang is president and executive director of Asian Americans Advancing Justice, was one of the speakers at a rally for affirmative action outside the court Monday. We’re also joined by Fatima Goss Graves, president and CEO of the National Women’s Law Center.

We welcome you both to Democracy Now! Fatima Goss Graves, let’s begin with you. You were tweeting nonstop yesterday. Talk about the significance of the arguments and where you think the supermajority is going right now.

FATIMA GOSS GRAVES: Well, I have to begin with the fact that this is the fourth time the Supreme Court has heard what is essentially the same question, and before this year, each time they had come down with real clarity that you could consider race in the context of a holistic admissions process. What is different this time is the dramatic shift in the composition of the court, and that’s why we went into the argument worried and skeptical that the three new justices would join their conservative colleagues, despite the fact that there’s clear precedent to rely on and despite the fact that there is a broad case to be made, as you heard Justice Ketanji Brown Jackson make, of not only the ongoing discrimination, but the historical discrimination that these programs in part help to address.

JUAN GONZÁLEZ: Well, Fatima, could you talk about specifically the Harvard case, what happened at the lower court, at the district court level, and how this case wound its way up to the Supreme Court?

FATIMA GOSS GRAVES: Well, you have to begin with the fact that there is a very conservative lawyer who has brought these set of cases, named Ed Blum. And Ed Blum has made arguments that the affirmative action program at Harvard inherently discriminates against the Asian American community. It’s really important to actually understand that Ed Blum is not a student, and Ed Blum is not Asian American himself. In fact, one of the things that you saw both outside of the court and participating in this case is Asian American students naming the many benefits that they receive from participating in diverse education programs.

And I will tell you, along the way, what courts have found, really importantly, is two things. One, that the admissions programs considered race not as sole factors, not as only factors, but as one of many factors as part of a program that was holistic. So, it’s a part of the background and experiences and interests and talents that people put on display when they’re seeking to be admitted into schools.

But the second thing that I think was really important, both in the Harvard and the UNC case, is that the courts, along the way, reiterated the initial holding from Bakke, that was — that 20 years ago you had come again in Gratz and Grutter, where the court said that consideration of race as one of many factors to create a diverse student body, that schools have a compelling interest in doing so. So, if the court rejects that idea, rejects the idea that race actually is one of many factors that a court consider in its admissions program, we will see dramatic differences in admissions processes.

We already have states that have had that experiment, and we know that it has not only reduced the number of students of color who have attended those schools, but it also has dramatically changed their experience there. It has left them more isolated, more subject to additional discrimination. And so we will have effects not only for the students who are in those classes, but for the generations to come, for the workforce, for the community around it, for how people’s feelings of belonging actually endure and their connection to their community.

JUAN GONZÁLEZ: And I’d like to bring in John Yang, as well, president and executive director of Asian Americans Advancing Justice. John, the prior Supreme Court cases have focused on how affirmative action is to the detriment of white students, but now in this set of cases there’s also the issue of how, allegedly, affirmative action affects Asian Americans. Why did you feel your organization had to get involved in this case? And your perspective on how — whether Harvard was indeed discriminating against Asian Americans?

JOHN YANG: Well, thank you very much, Juan, for that question. And let me pick up on something that Fatima mentioned, which is Ed Blum, when he lost a case in Fisher, he explicitly said, “I need to find Asian American plaintiffs.” Now, why he did that was — we knew this — he would try to use us as a political wedge, to drive us between other communities of color.

Look, if there was actual discrimination against Asian Americans at Harvard or UNC, my organization would probably sue. But when we looked at the evidence, it was clear to us that Asian Americans were not being discriminated against. The policies in place at Harvard and UNC, this using race-conscious admissions, allowing race to be considered, benefited Asian Americans. So we were actually involved in the case on the side of Harvard representing Asian American what are called interveners, so that they could tell their stories in court about how affirmative action, how race-conscious admissions actually helped them, and how having a diverse campus at Harvard really benefited their educational process.

AMY GOODMAN: I want to go back to the oral arguments Monday. U.S. Solicitor General Elizabeth Prelogar argued Supreme Court precedent has been key to increasing diversity in higher education, which then shapes representation in the workforce. She gave this example of “gross disparity” in representation.

ELIZABETH PRELOGAR: The second category I would point to is the one I’ve already referenced, demographics. I think that that can be relevant, again, not to set a quota, not to identify a precise numerical threshold, but in recognition that when there are extreme disparities in representation of certain groups, it can cause people to wonder whether the path to leadership is open.

And if I could, maybe I could just give, I think, a commonsense example of that, that I would hope would resonate with this court. The court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50% or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, “Is that a path that’s open to me, to be a Supreme Court advocate?”

AMY GOODMAN: Fatima Goss Graves, you tweeted about this. Your response? And talk about what this means, the people that would be brought forward, their stories.

FATIMA GOSS GRAVES: You know, I thought that the solicitor general’s argument was very powerful here. It’s not a secret that the Supreme Court Bar is one of the least diverse places. Very few women, hardly any women of color, argue before the court in any given term. And when we take a similar example of what you might see and experience in some settings, in the brief that the National Women’s Law Center filed in the case, we talked about how you could have some programs where a student of color or a woman of color, in particular, might be the only student like them.

And that isolation has real-time effects, not only because of the leadership questions that the solicitor general named, but also it reminds you that you are the own. You might have to, by yourself, represent your whole race when you are the own. You know, so, there are both the many benefits from diverse institutions, but the real harm of segregation and isolation that could come from a decision that overturns Grutter, it really is startling.

JUAN GONZÁLEZ: And, John Yang, I’d like to ask you — as has been mentioned previously, this is the fourth time in 20 years that the Supreme Court has tackled this issue. Obviously, there was the Bakke decision. There was the University of Michigan case. Why has affirmative action been so contentious and been forced — been brought up to the highest court in the land so often in recent decades?

JOHN YANG: Well, at the end of the day, I think people are still uncomfortable — certain people are uncomfortable with the fact that we are still grappling with race issues in the United States. Now, let’s be clear: It’s only been about 60 years since the Civil Rights Acts of the 1960s were passed. So, for people to suggest that we are in a post-racial society, that we could be somehow race-blind, I think is just being naive. Now, obviously, there are those that want to bring up these cases because they want to enforce this notion that we shouldn’t look at race, that race shouldn’t matter. But we know that it matters. In everyday life, we know that it matters.

And so, when we’re talking about educational decisions, admissions to colleges, certainly the notion that students should be able to talk about their race, their ethnicity, what that meant to their upbringing and the challenges that they faced, as well as the legacies that they are trying to honor, it should be important to that process. And one of the things that we find very disturbing is if race-conscious admissions are not allowed in colleges, then it really would be silencing a large group of students, students of color, in terms of talking about their own experiences. That’s why we think these cases matter, and that’s what we want to drive home to the courts.

AMY GOODMAN: I want to thank you both for being with us, John Yang, president and executive director of Asian Americans Advancing Justice, and Fatima Goss Graves, president and CEO of the National Women’s Law Center, both speaking to us from Washington, D.C.

Coming up, as Israel holds its fifth national election in less than four years, we speak to Jan Egeland, head of the Norwegian Refugee Council, calling on Israel to end its decades-long occupation. Stay with us.

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