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The Supreme Court could end affirmative action. What could happen next?

MARY LOUISE KELLY, HOST:

What could happen if the Supreme Court ends affirmative action for college admissions? Where else might it be disallowed? This week the court heard arguments in cases involving two elite institutions, Harvard and the University of North Carolina Chapel Hill. All six conservative justices indicated skepticism about allowing race to be considered in college admissions, signaling they may be ready to overturn decades of precedent. Well, Ian Millhiser is covering this for Vox, and he's with us now. Hey, Ian.

IAN MILHISER: It's good to be here. Thanks so much.

KELLY: So we, of course, won't know for sure until next year where the courts will land on this pair of cases. But if the many court watchers who are watching and who believe conservative justices are preparing to strike down affirmative action in college admissions - if they are right, I want to start with where that would leave colleges who are trying to decide who to admit. You have written that in practice, race often functions as a tiebreaker when universities are deciding among a number of well-qualified students.

MILHISER: That's right. So, you know, a lot of people - when they hear the words affirmative action, I think they think of 1970s-style programs where, you know, often there were quotas where a certain number of seats were set aside for people from certain backgrounds. Those programs are illegal. They haven't existed since 1978. But what does happen is that - you know, and we've talked about Harvard and Chapel Hill. These are two very elite universities that receive way more extraordinarily qualified applicants than they can take. And so at some point, you have to have some kind of tiebreaker to pick amongst a bunch of, you know, almost equally qualified applicants.

And what the Supreme Court has said in a case called Grutter is that diversity is an important value. And so one thing that the court can use as a tiebreaker is they can say, hey; like, if there's a student who will add diversity along any lines, whether that is they - you know, they served in the United States military, you know, diversity writ large - schools are allowed to consider that. And they are allowed to say who will add valuable experiences that everyone in this class can learn from.

KELLY: Got it. So if that changes, if the court strikes down Grutter, would it become illegal for colleges to consider race at all? The plaintiffs are advocating a colorblind theory of the Constitution. Do we know how that would work?

MILHISER: So, I mean, first of all, I'll just add the caveat that it matters a lot what the Supreme Court's opinion actually says.

KELLY: Sure.

MILHISER: And so we won't know what the rule is until we read the opinion. But the plaintiffs, as you said, are advocating for a colorblind theory, which means you cannot consider race under any circumstances no matter what. And under that theory, I'm worried that it could wind up being very disruptive. So one issue that came up - Justice Barrett brought this up - is let's say you have a student and they write an essay saying, you know, I am Mexican American, and they write a beautiful essay about the pride they take in their own culture. And that student is admitted in large part on the strength of this essay. Now, if there's a lawsuit, you know, how does the university prove that the student was admitted because, you know, they liked the quality of the essay and not because the essay identified this person as a Latino? So I imagine there could be a lot of litigation over something like that.

KELLY: I was interested listening along to the arguments in court this week. Justice Kavanaugh was asking questions about what universities would or would not still be allowed to do if, for example, there's a ruling that says you can't consider race explicitly.

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: Going forward, if it's accepted, on what qualifies as race-neutral in the first place, you said socioeconomic is race-neutral. Could you give a plus to applicants whose parents were immigrants to this country?

KELLY: Can universities consider low-income status or status as an immigrant or things that might often correlate with race?

MILHISER: No, it's an excellent question. And, I mean, I'm glad that Kavanaugh asked it because that is going to be the next case if he and several of his colleagues vote to eliminate affirmative action. Another issue that's likely to come up, which is even more closely related - so Governor George W. Bush, when he was governor of the state of Texas, implemented what was called the Top 10% program. The idea was that the 10% of students from every graduating high school in Texas would be automatically admitted into the University of Texas. And he was very open about the fact, I am doing this because, you know, I want there to be more diverse campuses. So, you know, we could potentially be living in a world where George W. Bush's policy, which he touted throughout his Texas governorship and throughout his presidency as a solid conservative alternative to affirmative action - that could potentially be on the chopping block as well.

KELLY: A bunch of big companies - Apple, Starbucks, IKEA, others - they all joined an amicus brief arguing that racial diversity improves decision-making at their companies. A bunch of big law firms also weighed in on the value of a racially diverse pool of talent coming in to them. Is it a stretch to wonder, if the court is indeed prepared to strike down affirmative action at colleges, whether employment, whether job hiring could be next?

MILHISER: I mean, I think absolutely, both directly and indirectly - so directly because, again, if colorblindness is the rule, that's going to apply to a lot of institutions, and so employers wouldn't be able to implement affirmative action programs, but also indirectly in the sense that - so what those briefs that you mentioned argued is, you have companies; you have the military saying, look. We need to have a diverse applicant pool, or else our entry-level employees are not going to be good at their job. What the military has argued, you know, very, very consistently for at least 20 years is that we cannot - you know, if our officer corps is made up entirely of white people, that endangers national security.

KELLY: Well, and might that argument have traction? You wrote that Chief Justice Roberts appeared open to the possibility that affirmative action could be permissible at the service academies.

MILHISER: I think it could have some traction. I mean, you could conceivably see the court carving out a special rule for the service academies because the court has historically deferred to the military as an institution. But one thing that I'll note - if you go all the way back to the Bouchie case, the 1978 case which said you can't have quotas but you can have less aggressive programs in order to foster diversity, one thing that the court said in that case is essentially, look. These questions of, like, how necessary is diverse campuses to make sure we have a functioning military, to make sure that employers have good applicant pools - all these questions are really hard.

And universities need to be afforded a degree of academic freedom because they are just - I mean, they're in the business of training people for the workplace. If you ask them, what do they need to do to make sure that people are prepared for the workplace, Harvard University is more likely to get the answer to that question right than nine lawyers in black robes. And I'm fearful that this court - they don't tend to think in terms of, like, are we really competent to answer this question? And I think we're going to see in this affirmative action case that this notion that sometimes it's appropriate for the judiciary to defer to other institutions that have greater expertise on a subject matter just isn't a part of these justices' thinking anymore.

KELLY: Ian Millhiser is a senior correspondent at Vox. Thank you.

MILHISER: Thank you.

(SOUNDBITE OF NAS SONG, "AFFIRMATIVE ACTION") Transcript provided by NPR, Copyright NPR.

Enrique Rivera
Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
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