The Supreme Court Upholds Michigan's Affirmative Action Ban

MS. DIANE REHM

10:06:56
Thanks for joining us. I'm Diane Rehm. In a 6 - 2 decision yesterday, the Supreme Court ruled that Michigan's ban on affirmative action at its public universities is constitutional. Known as Proposal 2, Michigan's law took effect in 2006. Since that time, African American enrollment at the University of Michigan has dropped by 30 percent. Seven other states have enacted similar bans on racial preferences in admissions.

MS. DIANE REHM

10:07:30
Joining me in the studio to talk about the high court's ruling and the future of affirmative action at public universities Sherrilyn Ifill of the NAACP Legal Defense and Education Fund. And Stuart Taylor of the Brookings Institution. Joining us from his office in Philadelphia, Penn., Jeffrey Rosen of the National Constitution Center.

MS. DIANE REHM

10:07:57
I hope you'll weigh in with your thoughts and ideas. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. Welcome to all of you. Thanks for being here.

MR. STUART TAYLOR

10:08:19
Nice to be here.

MS. SHERRILYN IFILL

10:08:20
Thank you, Diane.

MR. JEFFREY ROSEN

10:08:21
Great to be here.

REHM

10:08:21
Jeffrey Rosen, let me start with you. Explain the case for us that came before the Supreme Court and how it ruled yesterday.

ROSEN

10:08:34
Well, this is very dramatic because it's a Supreme Court case that's a response to the political fallout to another Supreme Court case. It was in 2003 that the court struck down affirmative action at the University of Michigan, but upheld affirmative action at the University of Michigan Law School. And the voters of Michigan were not happy with the decision upholding affirmative action.

ROSEN

10:08:59
And 58 percent of them, in 2006, approved this proposal. It's called Proposal 2, which prohibits discrimination or preferential treatment in public education, government contracting and public employment. So a bunch of supporters of affirmative action sued to block part of the law concerning higher education. And they said it was a violation of the equal protection clause. In 2012, the U.S. Court of Appeals for 6th Circuit agreed and struck down this initiative on the grounds that it violated the political process rights of minorities in the state.

ROSEN

10:09:36
Basically, minorities who supported affirmative action had to get a state constitutional amendment in order to have affirmative action enacted, whereas other groups could just seek remedies from the legislature. And in this extremely interesting decision yesterday, the U.S. Supreme Court disagreed by a vote of 6 to 2. Six justices, five conservatives and Justice Stephen Breyer, in an extremely significant and interesting opinion, said that this political process doctrine, as they called it, had been overextended.

ROSEN

10:10:10
Basically, they said that unless a particular initiative is designed to or has the effect of harming minorities, people can't sue to stop initiatives. And here, the majority said, people could debate in good faith whether or not affirmative action was good or bad for minorities and therefore their political process rights were not violated.

REHM

10:10:30
All right.

ROSEN

10:10:31
And then there was a passionate dissent from Justice Sotomayor, which we'll talk about. But she, in really the most important dissent of her career, said that this ignores the long and sorry history of attempts to circumvent barriers to discrimination and the Court was being willfully blind to the reality of what's going on on the ground.

REHM

10:10:49
And I think we should point out, Sherrilyn Ifill, that the one justice, Justice Kagan recused herself. That's why the 6 - 2 vote. What was your reaction to the decision?

IFILL

10:11:10
I wasn't entirely surprised. I was a little surprised and still remain somewhat mystified by the Justice Breyer opinion, but not entirely surprised by where the conservative majority on the Court ended up. I was, however, really deeply disappointed because I think the issue raised in this case, which, um, you know, ends up being about affirmative action -- but really is precisely as Jeff described it, about this issue of political process -- is one that dates back to Supreme Court jurisprudence in 1969.

IFILL

10:11:43
And I continue to have difficulty seeing daylight between the kinds of issues that the court dealt with in 1969 and 1982 when they announced this political process doctrine, in which they said, you can't change the rules. You can't restructure decision making in the political process solely for one issue. You can't remove one issue that relates to race from the decision-making authority.

IFILL

10:12:06
In the case of Hunter v. Underwood it involved a housing ordinance, where there was a ballot initiative, and essentially what the voters of the city of Akron, Ohio said was, you know, city council, you get to make all these other ordinance decisions, but if there's an issue that deals with race, that has to go to a majority of the voters. In Washington v. Seattle, which was the 1982 case, essentially the voters said, you know, you have to go to your neighborhood school.

IFILL

10:12:32
You can make exceptions for educational reasons except when it relates to trying to desegregate. And what the Supreme Court said is, you can't do that. You can't say, essentially, that the political body has all the power except as to this one issue. And here, with Proposition 2, the Board of Regents has the power, as do the universities to make a decision about how to admit their students.

IFILL

10:12:55
The Supreme Court, in 2003, said that using race as a factor can be constitutional. And here the voters said, no, actually, as it relates to race and national origin, etcetera, we're going to remove that from the authority of the regents to consider as a factor in admissions. I don't see the daylight between those, you know, decisions. The Supreme Court obviously does. And then lastly, I would just say I was surprised and really gratified by the powerful brief of Justice Sotomayor and her passionate articulation of the way in which, as she says, race matters, continues to matter in our society today.

REHM

10:13:34
Stuart Taylor, your reaction to the decision?

TAYLOR

10:13:39
I disagree pretty much on -- well, on most counts. I approve, as does Justice Breyer, which is very important. I think it's important that Sherrilyn noted that. Justice Breyer voted with the majority. Although, he wrote his own opinion more narrowly. And the decision, as he saw it especially, was to uphold the Democratic process in the context of racial preferences. And by the way, I use the term racial preferences rather than affirmative action for a number of reasons.

TAYLOR

10:14:04
One, I support affirmative action in the usual sense, it's racial preferences I have trouble with. Two, the words affirmative action do not appear in the Michigan amendment at all. The words preferential treatment based on race are what the voters opposed.

REHM

10:14:20
How do you define the difference in your own mind?

TAYLOR

10:14:23
I think most people in conversations like us, people who have studied this, have begun to use the words affirmative action as synonymous with racial preferences. But I think most Americans -- and studying the polls I think leads me to this opinion -- do not have the same assumption. When President Kennedy established affirmative action in 1962, I think it was, it meant special efforts to recruit minorities, special efforts to have outreach to minorities, make sure you break through the old patterns of hierarchy.

TAYLOR

10:14:56
I support that. I don't know anybody who opposes it, really. But over time it's come to have a different connotation. But if I could go back to the case. I was disappointed it was not unanimous. I think it would have been unanimous if this same case had come up 15 years ago for reasons I'd be glad to describe. And that's why I wasn't surprised by Justice Breyer. I was surprised by Justice Ginsburg.

TAYLOR

10:15:19
As for the political process doctrine, I think Sherrilyn's described it well. And there's certainly disagreement on the court about whether the political process doctrine pointed to the conclusion drawn by the dissent in this case, whether the political process doctrine should be struck down. Justices Scalia and Thomas said the political process doctrine was a mistake and therefore we should overrule that.

TAYLOR

10:15:42
Justices Roberts and others and Kennedy said no, we should -- the political process doctrine is okay. It's been interpreted too broadly. It certainly doesn't reach here. And lastly, just as to why wouldn't it reach here, why would a doctrine designed to stop housing discrimination, raw, old-fashioned housing discrimination, be found not to stop a rule that says no racial preferences. I think the answer comes from just reading the text of the 14th Amendment and the Michigan Proposition.

TAYLOR

10:16:14
The Michigan Proposition says that states shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, etcetera. The 14th Amendment says, "No state shall deny to any person within its jurisdiction the equal protection of the laws." It seems to me an enormous stretch to try and say that the second of those texts forbids the first.

REHM

10:16:40
Sherrilyn?

IFILL

10:16:40
Let me read you the ordinance from Hunter v. Erickson, in the city of Akron. The city charter provides that "Any ordinance enacted by the city council which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease or financing of realty on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors," and violates the equal protection clause of the 14th Amendment of the Constitution is what the Court said. But the first part of it is what the ordinance said.

IFILL

10:17:11
It's no different. I mean, the -- you don't have to use language in the ordinance that -- in fact, one of the things that's been -- was very clever about Prop 2 was the language that it used. And we saw this in California, years earlier, when the anti-affirmative action ballot initiative was referred to as a civil rights amendment. I mean, that's just -- that's clever crafting. And I actually -- I don't even criticize that because that's the process of engaging in ballot initiatives.

IFILL

10:17:39
What I do want to take issue with is this very narrow definition of the democratic process, which is why I'm spending a lot of time still reading Justice Breyer's opinion and would love to hear Jeff on this. The democratic process is not only defined -- or even at its most pure, when we send an issue to the electorate to decide up or down, when we essentially conduct plebiscites on how we do public policy.

IFILL

10:18:04
There are a million decisions that our Congress people make, in which much of the decision making is delegated to people who are not elected, who are part of their offices, who are part of their staff, elected judges in our states delegate authority to write drafts of opinions to clerks. That doesn't make it anti-democratic. And to say simply that we're throwing this to the voters, and that makes it more democratic, I think, narrowly defines what the democratic process is.

REHM

10:18:31
Sherrilyn Ifill, president and director of counsel of the NAACP Legal Defense and Educational Fund. Short break, we'll be right back.

REHM

10:20:01
And in this hour we're talking about the case of Schuette versus the Coalition to Defend Affirmative Action which came before the Supreme Court after Michigan voters approved proposal two. That was the Constitutional amendment that said, the State of Michigan quote "shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or natural origin." Supreme Court decided in a vote of 6 to 2 that Michigan voters had the right to make that decision and therefore to defend their right not to uphold affirmative action or racial preference in the selection of students at state colleges and universities.

REHM

10:21:22
I want to ask you, Jeffrey Rosen, suppose on the basis of this case, the state of let's say Mississippi decided that it would outlaw interracial marriage, how might -- if the voters decided to do that, how might this case play into that hypothetical decision?

ROSEN

10:22:04
That is a great question, Diane. It's a wonderful hypothetical. Happily it's hypothetical today. And the answer is that that referendum would be unconstitutional under several doctrines. First the Supreme Court has clearly said that laws that had the purpose and effect of stigmatizing and demeaning African Americans like bans on interracial marriage, are flatly unconstitutional. So that would just be struck down on those grounds.

ROSEN

10:22:27
But even under this so-called political process doctrine, the conservative plurality, just as Kennedy, Roberts and Alito would still strike down that law. Because if they withhold the referendum that has the purpose or effect of harming minorities like this ban on interracial marriage does restructure the political process in an unfair way.

ROSEN

10:22:48
Justices Thomas and Scalia would not have accepted that second argument. They want to completely overturn the political process doctrine and not make it available under any circumstances because they say it's an argument against the referendum process itself. And that's why I think both Sherrilyn and Stuart are correct in their description.

ROSEN

10:23:05
Sherrilyn is right that according to the understanding of the political process doctrine of the 1960s that this Michigan amendment would have fallen. But Stuart is right that the court's understanding of that doctrine has changed in recent years. As recently as 1996 the court refused to invoke that doctrine to strike down an antigay rights amendment. So basically the writing is on the wall for the political process doctrine. And the fact that the court did not completely repudiate it as Scalia and Thomas wanted to do, is at least some consolation for liberals.

REHM

10:23:35
Stuart.

TAYLOR

10:23:36
Jeff makes very good sense. I disagree to some extent. More is matter of prediction of what the Supreme Court would've done. I think it's very unclear what the Supreme Court would do with a Mississippi lawyer talking about. I think it sounds almost exactly like the California case that the court a year or two ago decided it wouldn't decide. Remember it said federal rights have to extend to people who had valid gay marriages. But it declined to decide whether states can ban gay marriages.

TAYLOR

10:24:05
Now by the way, states never ban gay marriages. What they do is they refuse to recognize them. You know, you want to go get married in your church gay, you can do that in any state in the union. But I think the court might -- so I'm not sure what the court would do in your case.

REHM

10:24:19
Interesting.

TAYLOR

10:24:19
Especially with the atmospherics. With it being Mississippi I suspect that the court would probably strike it down. But as a matter of constitutional doctrine I'm not sure. The one other point I might mention, I disagree a little bit with Jeff, that the political doctrine -- process doctrine as originally laid down would lead to striking this Michigan law down. The court said -- the court itself said in its majority opinion in the Seattle case, the most recent political process doctrine case, we do not mean to suggest that this would apply to racial preferences.

TAYLOR

10:24:51
They said that almost hypothetically because one of the dissenters had said, well gosh, if you're going to do this you might not let the voters ban racial preferences. The majority in the footnote came back and said, no that's very different.

REHM

10:25:04
Sherrilyn, tell me about Justice Sotomayor's dissent.

IFILL

10:25:12
Well, this is probably the most in some way important part of the opinion because she articulates and really refuses actually to engage in what I think is the faults conversation of the majority and even Justice Breyer, who refused to accept the reality of the racial context in which proposition two was enacted. And she develops her argument first on the political process doctrine, but also recognizing the history of discrimination at University of Michigan, the way in which race continues to permeate this process.

IFILL

10:25:53
You know, it's important to remember that proposition two was one of the most racially divisive votes certainly in the history of Michigan. Sixty-three percent -- sixty-five percent of whites voted in favor of it, only 13.8 percent of blacks. That 51 percent point difference is bigger than the difference between whites' and blacks' approval of Brown versus Board of Education in 1956. Bigger than the difference between whites' and blacks' approval of the civil rights act in 1964. Bigger than the differential between whites and blacks in their views about how the L.A. riots of 1968 should be dealt with.

IFILL

10:26:32
This was almost a referendum on race. And the political scientists who studied the election, who submitted an amicus brief in this case engaged in a study of voters and engaged in what was happening in Michigan at that time. And they said in their brief that this was essentially a referendum on race. And Justice Sotomayor refuses to ignore that reality. And then she really articulates the way in which the Supreme Court's effort, the majority's effort to engage in a kind of colorblindness jurisprudence.

IFILL

10:27:07
She rejects Chief Justice Roberts', you know, articulation of several years ago that the only way to stop a discriminating based on race is to stop discriminating based on race. She says...

REHM

10:27:18
And how has the population of the student body changed since that ruling was put into place?

IFILL

10:27:31
Well, you identified it yourself right at the outset, Diane, a 30 percent drop in minority students. I don't know if people realize that about a month ago African American students on the University of Michigan campus had a sleep-in to protest what they say is an increasingly racially hostile environment on the campus.

IFILL

10:27:48
Let's be clear. When we're talking about this, we're talking now about students on the campus. But what we're actually talking about are the future leaders of the State of Michigan and other states who are trained through the University of Michigan system. The reason why university officials support affirmative action is because they know they're training the leaders of tomorrow for their state. And they want those leaders to learn in a diverse environment.

REHM

10:28:12
Stuart, what happens to those individuals going or wishing to go to the University of Michigan who may no longer be granted racial preference in order to balance out the student body?

TAYLOR

10:28:37
Well, I hate to join a chorus but that's a very good question. And because what happens to them is that all of them, I think, or almost all of them go to college. They go to good colleges. They probably go to state colleges in Michigan. They don't go to the flagship university of Michigan if they're turned down for lack of academic qualifications or preparation, which is what happens when you take away racial preferences. And it's true, the population admitted to the University of Michigan goes down a lot.

TAYLOR

10:29:04
But A. these people still go to college and B. I've written an entire book on the proposition -- or co-authored an entire book, and Chief Justice Roberts yesterday mentioned the proposition, that for these kids the preferences might be doing more harm than good because they're being led into academic situations for which they're not well prepared.

TAYLOR

10:29:22
And the record shows clearly that they tend to do badly, ranking near the bottom of their class. And that if they go to a school where they are more competitive with their classmates, things may go better for them, not only in college but after.

REHM

10:29:35
Jeffrey Rosen.

ROSEN

10:29:37
I think what was so interesting about Justice Breyers concurrence is he said, that is a decision for the voters to make. Some people think it does more harm than good. Others think that affirmative action is necessary to achieve diversity. Breyer said, we've got to defer to elected officials. And here he said the decision was made not by the voters but by unelected teachers and bureaucrats. And that's why he refused to defer to them.

ROSEN

10:30:01
By contrast he had a fiery 77-page dissent from the court's 2007 decision striking down affirmative action on the Seattle public schools. There he thought that pro-affirmative action decision should be upheld because elected school boards have made it. So Sherrilyn asked a very good question about what is the conception of democracy. For Breyer, it's that courts should generally defer to the political process when reasonable people can disagree about whether a policy is good or bad.

ROSEN

10:30:28
And that's why his dissent will -- rather his concurrence in this case will be a powerful stick for liberals to use when conservatives in future cases try to end affirmative action. They'll say, once again, the people should decide.

REHM

10:30:40
And joining us now from her office at the University of Michigan, Martha Pollack. She's provost executive vice-president for academic affairs at the University of Michigan. Dr. Pollack, thanks for joining us.

DR. MARTHA POLLACK

10:31:00
Thank you.

REHM

10:31:01
Talk about your reaction to the decision by the Supreme Court.

POLLACK

10:31:07
Well, we of course wish that we had available to us the tools of affirmative action but in fact we've been operating with policies that are consist with proposal two since it was enacted in 2006. So on a day-to-day basis this really doesn't impact what we're doing here.

REHM

10:31:23
Does the university still consider achieving diversity a valid goal and will you be able to do that?

POLLACK

10:31:34
Well, we absolutely do consider it to be a very important goal. We've held fast to that goal for a decade now. And we've tried to do everything we can consistent with the law to achieve diversity that we think is important for the educational experience of all of our students. And so we work to achieve diversity with recruiting techniques that are legal, for example, seeking out socioeconomic diversity. We work to reach out to current students and alumni to build pipelines.

POLLACK

10:32:09
And as you may know, we've had a lot of difficult but important dialogues on campus this whole semester and this whole year to try and understand how we can create a more welcoming environment to which all students, including minority students, will want to come.

REHM

10:32:25
However, as I understand it, enrollment by African Americans has dropped by 30 percent since this law has been in place. Aren't you concerned about that?

POLLACK

10:32:40
We are concerned. Enrollment has declined. It's a little bit hard to interpret exactly the numbers quite exactly because since the time at which proposal two was put in place, there was also a change in which the federal -- ways in which the federal government collected numbers. But there is no question but that there has been a decline and that the representation of minority students on campus is much lower than we would like it to be.

REHM

10:33:06
And you're listening to "The Diane Rehm Show." Coming back to you, Dr. Pollack, what about the concerns of current African American University of Michigan students? How are you responding to the quote "being black at Michigan" Twitter discussion?

POLLACK

10:33:32
Yeah, so late last fall there was a large Twitter discussion that was labeled with the hashtag BBUM, being black at the University of Michigan. It was actually quite a powerful set of Tweets. There were literally thousands of them. And if you read them, you got a really profoundly moving sense of what it is like to be a minority student on this campus.

POLLACK

10:33:55
Later in January there were a group of students from our black student union who came forth with a set of really important issues that we wanted to address with them and that they wanted to address with us. And several of the top members of leadership met with those students throughout the semester. We worked with them on these issues. And just a week ago issued a joint press release with the students and the administration reporting on what we'd accomplished and what still needed to be done.

POLLACK

10:34:22
Because realistically as long as the society that -- in which our university is situated, remains a racially charged one, the work will continue. The work will continue for a long time.

REHM

10:34:32
Do you think racial preferences have a place in college admissions?

POLLACK

10:34:40
Well, you know, we will observe the law of the state. And the law of the state says to us that we cannot use racial preferences. That was the voters' will and so we will observe that. And we have been observing that for the last eight years.

REHM

10:34:53
Now, you may have heard Stuart Taylor say earlier that perhaps those students of color who did get into the university under racial preferences dropped out because they couldn't make it, that the university's standards were too rigorous for them, and so perhaps going to different colleges made sense. Do you agree with that?

POLLACK

10:35:27
No, I don't agree with that. I mean, I do think we have to and will always continue to have standards and high standards. We need to be the very best university we can. But I think that there are certainly cases where students come to us with enormous potential. They haven't had the same opportunities as some students from wealthier backgrounds but they have enormous potential. And we are able to work with them and give them the benefits of the University of Michigan education.

POLLACK

10:35:55
And what I think is really important is that the benefits of a diverse class are not just benefits for the minority students. They're benefits for all of our students.

REHM

10:36:04
Exactly.

POLLACK

10:36:05
There's broad and deeper search, some by our own scientists here at Michigan, but some from other universities that show that the educational environment is more effective. That students learn to think in more complex ways when they have novel situations, that we're equipping them better for meaningful participation in the broader society. And so we think that this is important not just for the minority students but really for all of our students.

REHM

10:36:28
So with that 30 percent decline, how are you going to make that up?

POLLACK

10:36:35
Well again, I mean, we will observe the law. And we have been observing the law. We will reach out in other ways. We are very interested in socioeconomic diversity, which the law does permit. And as I say, I think that working on these issues of making the campus itself more welcoming, more inclusive, will, in itself, help bring those numbers back. But it is a challenge. I won't kid you. It is a challenge. I...

REHM

10:37:03
But socioeconomic is not necessarily representative of racial diversity.

POLLACK

10:37:11
Absolutely. And I think that's a very important point. Socioeconomic diversity is not necessarily -- does not necessarily lead to increase racial diversity. We are a majority country. We'll get more majority students regardless of socioeconomic diversity. And in addition, we certainly don't want to suggest or have it appear that all of our under-representative students come from lower incomes...

REHM

10:37:37
All right. We'll have to stop it there. Thank you, Dr. Pollack, for joining us.

REHM

10:40:02
And welcome back. We'll go directly to the phones. First to Bob who's in Miami, Fla. Hi there, you're on the air.

BOB

10:40:13
How you doing, Ms. Rehm? It's a pleasure speaking with you, ma'am.

REHM

10:40:15
Thank you.

BOB

10:40:16
I was watching Fox News yesterday and Brit Hume was talking about the preferential treatment of (word?) . And I was trying to figure out when you -- thinking about it, if the so-called preference is having such a big impact, why is it that graduate schools, law schools and most universities that are predominantly white remain predominantly white? You don't see this preference -- "preference treatment" to the point where it's -- you have a lot of Hispanics or a lot of African American students. And I just want to get a clear understanding of...

REHM

10:40:54
All right. All right, Stuart, do you want to comment?

TAYLOR

10:40:57
Yes. A larger percentage, if you put people in categories of how well they've done academically in high school, a larger percentage of blacks go to college than whites. Now of course the underlying number is that black performance in high school is way below white performance and even farther below Asian performance and also below Hispanic performance. Why is that?

TAYLOR

10:41:19
Some of it is bad schools, some of it is parenting practices, some of it is peer group influences. But the ineluctable fact is that in order to get the numbers of blacks it wanted, for example, the University of Texas had to give preferences on the SAT. Just for one example of I think it's 464 points. In other words if you were black you needed 464 more -- I'm sorry, if you were Asian you needed 460 some more points on your SAT scores than if you were black to get in on average.

TAYLOR

10:41:50
That's just one of many possible examples of why the supply of well qualified black students applying to college, well qualified for the top challenges is not what it should be. And that the solution lies in K to 12 education, not in racial preferences.

REHM

10:42:05
Sherrilyn.

IFILL

10:42:06
So when schools decide how they're going to admit students, they make their own determination as to what those factors are. And I think many of the best in the education field agree that it is a decision that universities have made to rely as much as they do on standardized tests, including the SAT that largely accounts for the racial differences that we see. That is a decision that law schools make. That's a decision that colleges make. They don't have to make that decision but they do make that decision.

IFILL

10:42:33
The truth is -- let's keep it real -- when we're talking about affirmative action today, we're talking about affirmative action that has been deeply, deeply paired back by the Supreme Court. In the Fisher case, University of Texas case, Texas quite rightly said, race is used as a factor of a factor of a factor of a factor. It is that small in the process governed primarily by the admissions -- by the scores that are on standardized tests, by students' GPAs and by a whole variety of other factors.

IFILL

10:43:00
So race is now so small, has to be so narrowly tailored to even be part of the process. And I want to say that because I think people still get the idea -- and I hear it all the time -- that we're talking about quotas or set asides or positions reserved for African Americans or Latino students which is not true. We're talking about a de minimis factor that's used within the admissions process to try and bring some diversity to the student body.

REHM

10:43:26
You heard the University of Michigan provost talk about socioeconomic factors as a way of reaching some kind of diversity. Does that do it?

IFILL

10:43:41
Well, it doesn't do it and it creates its own problems. Thing about Texas where they used a top 10 percent plan, meaning the top 10 -- if you graduate in the top 10 percent from any public high school in Texas, you're guaranteed admission to the University of Texas. Now the only reason that this increases the racial diversity numbers is because of our deeply segregated society.

IFILL

10:44:00
But the truth is, a student who graduates at the top of her class from the most poorly resourced African American high school is not comparably equipped to succeed at the University of Texas, from a student who graduates in the top 10 percent of the most well-resourced high school in the suburbs of Houston and is a white student. And so the socioeconomic piece may even get your numbers up. But actually, it doesn't actually help with the issue of preparation and therefore the likelihood of that student graduating from the school.

IFILL

10:44:32
And I just want to say one more thing about preferences because that term somehow has started to permeate. I credit those who are anti-affirmative action advocates with the manipulation of language. But we should be clear about what it is. When we started out with affirmative action everybody understood what it meant. And it was called by those on the right reverse discrimination. And they succeeded in tainting the term affirmative action both for whites and for blacks and for other groups as well.

IFILL

10:44:58
And now that the term affirmative action has become normalized, that the Supreme Court has upheld it in the Grutter case and then refused to strike it down again in Fisher, and now is beginning to take a turn so that people understand what it is and according to the latest poll now seem to approve affirmative action, now we're hearing the right insist on this term racial preferences.

IFILL

10:45:17
Americans don't like the word preference for anything. And the word preference is specifically designed to create this image of someone getting something that they don't deserve. And it's that idea that is so toxic to African American students on these majority campuses.

REHM

10:45:32
Jeffrey.

ROSEN

10:45:33
I wanted to agree with Sherrilyn that words matter. And the poll that she cited is extremely significant. So just recently Pew released a new poll finding that by roughly 2 to 1 out of 63 percent and 30 percent Americans say that affirmative action designed to increase the number of blacks and the minority students on college campuses are a good thing. And that is supported by a recent CBS New York Times poll where 63 percent say that they support affirmative action because it increased diversity, and 24 percent to make up for past discrimination.

ROSEN

10:46:05
Overall 53 percent of the public supports affirmative action in hiring -- promoting college education according to the CBS New York Times poll. So when the question is raised in terms of affirmative action, majorities of Americans do support it. And that is hugely significant for the effects of this case because now voters are free to accept or reject these referenda. As you mentioned in your intro, eight states have adopted bans but several states have rejected these bans, including Colorado, Arizona and Missouri.

ROSEN

10:46:33
And I think, given these poll numbers, especially if the debate is raised in terms of affirmative action, then supporters can count on the people of the states to embrace it rather than ban it. And that means that the practical effects of this decision may be relatively limited.

REHM

10:46:46
Here is an email from Sarah who's here in Washington. She says, "I attended the University of Michigan in the '90s. I was asked by white classmates what it felt like to have been accepted based on my race and not academic merit. The reality is affirmative action promotes students who are qualified but who may be overlooked due to a variety of factors. Affirmative action has never been about giving preferential treatment to those who are unqualified," Stuart.

TAYLOR

10:47:34
Well, I sympathize with the caller's hurt at that question. But I think that question is inherent in the use of large racial preferences. I don't really oppose small racial preferences -- very large racial preferences that do set students up to fail. And by the way, it's not just SAT scores. It's in grade point averages. It's not an accident that more than 50 percent of black students in undergraduate schools are in the bottom 20 percent of their class, that more than 50 percent of black law students are in the bottom 10 percent of their class.

REHM

10:48:08
So are you saying that that's why the University of Michigan had had that 30- percent drop?

TAYLOR

10:48:17
Exactly. I think it's a little bit contradictory for Sherrilyn, with all respect, to say, oh yes, it's caused this 30 percent drop. And oh by the way, these are de minimis, these tiny factors or a factor of a factor. If they cause a 30 percent drop they're obviously having a big effect. In other words, when you take them away it's a 30 percent drop.

TAYLOR

10:48:36
If I could disagree with just a couple of other things, the poll that Jeff cited, I think, is way out of line with all other polls I've ever seen. And the reason it's way out of line, I think, is it's misleadingly worded. Here's a poll that's worded in a way that's very neutral. Washington Post ABC last June. Do you support or oppose allowing universities to consider race as a factor in deciding which students to admit? All adults by a 3 to 1 plus margin said oppose allowing that kind of racial preference. The word wasn't used.

TAYLOR

10:49:07
African Americans were equally opposed, by the way, in that poll. Now there are lots of games one can play with polls, but I think they're polls that have misleading -- or in their polls that have accurate wording. And I think that's an example.

REHM

10:49:20
And you think the Pew poll has inaccurate wording and that's why Americans said roughly 2 to 1, 63 to 30 percent that affirmative action programs designed to increase the number of black and minority students on college campuses is a good thing.

TAYLOR

10:49:48
Inaccurate is -- I should clarify my term. I don't think it's inaccurate in the sense that there's something false in there. I think it's highly misleading, and I think deliberately so. I think when you use the words affirmative action instead of racial preference or instead of consideration of race and we talk about how it would increase the number of blacks and Hispanics without mentioning that it would come at the expense of Asians primarily and then whites, you're loading the dice.

TAYLOR

10:50:13
I don't -- I think there have been lots and lots of polls that don't load the dice. And all of them show opposition to racial preferences. And by the way, if all you care about -- if you don't care about racial preferences, it's affirmative action, I have good news. The Michigan referendum did not ban affirmative action. It didn't mention affirmative action. It banned racial preferences and only racial preferences.

REHM

10:50:35
All right. Jeffrey Rosen, is the court's decision yesterday a signal that it will eventually outlaw all forms of affirmative action or racial preferences at all colleges and universities?

ROSEN

10:50:57
That is another excellent question and I think I would say that we really don't have further insight into the mind of Justice Anthony Kennedy who will determine that question. Last year the court pointedly refused to determine the future of affirmative action and in the 7 to 1 decision sent back to the lower courts the question of whether Texas is, in addition to its 10 percent plan, was or was not constitutional.

ROSEN

10:51:20
Really this has been such a dramatic struggle to watch Justice Kennedy in case after case come up to the brink of forbidding all racial preferences or affirmative action, however you want to call it, and then stepping short of that and saying, some forms of race consciousness are permissible. There was a very inspiring, I thought, passage at the end of Justice Kennedy's opinion yesterday where he talked about how important it was for the people to decide this question. He said, it's demeaning to the democratic process to presume the voters aren't capable of deciding an issue of this sensitivity on decent and rational grounds.

ROSEN

10:51:51
He invoked the First Amendment and the duty to engage in rational civic discourse. So supporters of affirmative action at least could look at that language and say, Justice Kennedy, if you really believe that the people should be free to embrace affirmative action if they please, then you should not, to be consistent with that, strike down all affirmative action. But ultimately what you will do is known only to him and we will find out in a future case.

REHM

10:52:13
Sherrilyn, in your view what is the future of race-based admissions?

IFILL

10:52:22
You know, the interesting thing, Diane, is how difficult this struggle has been, not only for justices on the Supreme Court but really for this country. There is something quite actually compelling about affirmative action. It's compelling for universities and not because they're kneejerk liberals but because they are the places that are educating the leaders of their state. And they know that. And in the education of the leaders of the state, they want to make sure that they're preparing those leaders to be able to lead a best in a dynamic and diverse society.

IFILL

10:52:52
Seventy-eight percent of the members of the Florida legislature went through the University of Florida system. Over 90 percent of the judges on the appellate courts in Alabama went through the University of Alabama. And on and on it goes through the states. And so they know, the state university, what they're charge is which is to develop the leaders of tomorrow. And that's the reason why they are so interested in continuing to preserve a diverse learning environment.

REHM

10:53:16
And you're listening to "The Diane Rehm Show." Stuart, what's your reaction to the same question?

TAYLOR

10:53:25
I think predictions of the death of racial preferences, as I think they correctly called it, are vastly exaggerated. I know what Justice Kennedy's going to do, or at least I think I have a good guess. Of course I don't know. I think he's going to continue to just barely uphold the use of racial preferences in some cases, not uphold them in others and leave it -- largely leave the universities largely free to do what they have been doing, which is every opportunity consider race. That's what they want to do. Understandable reasons, they want to increase their numbers.

TAYLOR

10:53:55
I also don't think there are going to be a whole lot more votes like this in other states. About half the...

REHM

10:54:00
Why Michigan?

TAYLOR

10:54:02
Because Michigan had a -- A. because the Supreme Court cases in 2003 were Michigan and so the issue was big in Michigan. And also because I think Ward Connerly and Jennifer Gratz and other people organized an interesting drive. These things don't happen through the legislative process usually. Legislators are afraid to oppose racial preferences, not because the public opposes -- doesn't oppose them but because they get portrayed as racists when they do.

TAYLOR

10:54:31
By the way, one thing on preferences. We talk about (word?) preferences, legacy preferences, athletic preferences. And the Supreme Court talks about racial preferences in the very case from which most racial preference supporters hang their hats, the Grutter case. Why is it suddenly a stigmatic word to use the word racial preferences? I submit that it's only deemed stigmatic because the public knows what they are and doesn't like them.

REHM

10:54:55
What about that, Sherrilyn?

IFILL

10:54:57
I mean, that's actually the central issue of this case, right. If you are a representative of University of Michigan alumni, you get to lobby the regents and you get to do whatever you do, which is also part of the process, the democratic process, like it or not, to influence how they consider alumni in the admissions process. If you represent start athletes, you get to lobby and use the process to influence how the admissions criteria will weight athletic prowess.

IFILL

10:55:23
But if you believe that you want to promote a diverse learning environment based on race, you have to actually marshal your forces to pass a constitutional amendment in Michigan to have the ability to influence that process. That's the whole issue of the political process doctrine. That's the hurdle, the high hurdle that the Supreme Court has allowed Michigan voters and voters in other states to take.

IFILL

10:55:47
And if you imagine, you know, all of the issues, that if we took them to a state referendum, if we did bussing, if we did desegregation, if we did marriage equality, if we did all of these issues and we just decided to send it out to a state referendum and we call that somehow the pure democratic process.

IFILL

10:56:06
You know, just a few years ago the State of Alabama decided finally to have a vote on interracial marriage. And the voters of Alabama decided to strike down interracial marriage in their constitution but only by 60 percent, right. So we should remember that the pure electorate is not the only place where democracy operates. And we should be worried if other states continue to kind of do what happened in Michigan and move this forward.

REHM

10:56:31
Sherrilyn Ifill. She's with the NAACP Legal Defense and Educational Fund. Stuart Taylor is author and journalist. He's at the Brookings Institution. He's co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help , and Why Universities Won't Admit it." And Jeffrey Rosen, president and CEO of The National Constitutional Center. He is author of "The Supreme Court: The Personalities and Rivalries That Define America." Thank you all so much.

IFILL

10:57:17
Thank you, Diane.

TAYLOR

10:57:18
Thank you.

REHM

10:57:18
Thank you.

ROSEN

10:57:19
Thanks.

REHM

10:57:20
And thanks for listening all. I'm Diane Rehm.
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