Next Supreme Court Justice May Help To Define Affirmative Action Cases
STEVE INSKEEP, HOST:
The retirement of Justice Anthony Kennedy from the Supreme Court brings home a reality about the law. Written law says what it says but is often subject to interpretation. If the speed limit is 65, it is illegal to go 90. That's obvious. But what if the question is affirmative action - an effort to repair past racial discrimination by giving preference to people of color, which can itself be labeled discrimination?
Justice Kennedy balanced the complexities in 2016, providing a key vote that upheld the limited use of race-conscious policies at universities. Now he's leaving. So what's at stake? Dana Thompson Dorsey specializes in education law and policy at the University of Pittsburgh. She's on the line from WESA. Hey. Good morning.
DANA THOMPSON DORSEY: Good morning. How are you?
INSKEEP: I'm doing fine, thanks very much. So how did Justice Kennedy find his way to supporting affirmative action, given that he had been skeptical about it over the years?
DORSEY: Well, Justice Kennedy is definitely a conservative justice. However, he is one who upholds legal precedents. And basically, since the Bakke case in 1978, the Supreme Court said that race could be used as a factor, not the factor, in race-based admissions. So in the Fisher II case in 2016...
INSKEEP: This is the University of Texas we're talking about here, right?
DORSEY: Exactly, University - Fisher v. the University of Texas. Basically, what he was upholding was the fact that universities have a compelling interest to maintain education - the educational benefits of diversity. He was basically saying in his opinion that he wanted to give deference to universities because their identity and educational mission may be based on how they define student body diversity.
INSKEEP: OK. So he...
DORSEY: So it...
INSKEEP: So he gave deference to the university. He gave deference, I think you also said, to precedent, which is a big deal. We've been talking about the importance of precedents the last few days. But given all of that, how could a different justice change that calculation - approach this matter completely differently?
DORSEY: Well, I'm sure you know that there is a lot of controversy when we talk about race-based admissions because of that issue of race. And race is given strict scrutiny by the courts. So someone else can come in and simply look at the fact that race is being used, as opposed to thinking specifically about educational diversity or thinking about deference given to universities.
So there is a case that is currently making its way through the courts, Students for Fair Admissions v. Harvard University. There's also a pending case versus UNC. And this is actually Asian students that are bringing this particular case and basically saying that they are harmed by universities' race-based admissions policy. It disadvantages them because they are held to a higher standard to gain admission to these particular elite institutions. So when you look at it, it almost is like a reverse quota in a sense.
INSKEEP: Yeah. I mean, I wonder if that raises the question - it certainly does in some people's minds - as to whether affirmative action has gone too far or gone on too long, when you have members of a racial minority saying that efforts to balance out racial minorities - people of color or other kinds of people - are actually harming them.
DORSEY: Well, what we have to think about is the history of this country. As long as race remains a factor in this country, and particularly when it comes to education and educational disparities, then we have to think about how it would impact students' access to education. And that is particular to higher education because it is higher education, or access to universities and the type of education universities can provide, particularly these elite institutions and the names and reputations that go along with those elite institutions, that can make a huge difference in the success, economically and socially, in people's lives.
INSKEEP: So I think I hear you saying that a different justice could come in and just say, look, I'd rather be colorblind. Society ought to be colorblind, and therefore, I'm not going to put up with these complexities, and I'm going to rule differently in a case that might come before me.
Let me ask very briefly about one other possibility. Sandra Day O'Connor, former Supreme Court justice, said once upon a time, there ought to be a kind of time limit on affirmative action. It shouldn't go on forever. Would you buy that notion that there might be a time - there should be a time when affirmative action should run out, so to speak?
DORSEY: There should be a time. And Justice O'Connor said this in her opinion in a 2003 Grutter v. Bollinger case, also known as the Michigan Law case. However, the issue is the fact that we don't have a colorblind society. We don't live in a colorblind society. We have a long history based on racial discrimination that still exists today.
So at the point when our society no longer depends on racial discrimination to advance other people - white people, for example, who have benefited from advantages and privilege based on their race - then, at that point, we can have a colorblind society and maybe colorblind decisions where race-based admissions is no longer necessary.
INSKEEP: Dana Thompson Dorsey is a scholar at the University of Pittsburgh. Thanks very much for your time.
DORSEY: Thank you.
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