Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned in Brief. I’m Preet Bharara. Today, we’re going to talk about affirmative action. As you may remember, the Supreme Court recently heard oral arguments in a pair of cases that challenge race conscious admissions policy at Harvard and the University of North Carolina. As you will also recall, back in February, I discussed those cases with Columbia University President Lee Bollinger, who is a named defendant in two landmark Supreme Court decisions upholding affirmative action in higher education.

Those precedents are now in jeopardy, serious jeopardy. Now, it turns out that several of my law partners at WilmerHale have been representing Harvard in defense of affirmative action, from the trial court all the way to the Supreme Court, and one of those lawyers is my guest today, longtime Civil Rights Lawyer, Debo Adegbile. Debo currently serves on the U.S. Commission on Civil Rights. Earlier in his career, he served as Director of Litigation and acting President of the NAACP Legal Defense Fund. He’s also served as Senior Counsel to the Senate Judiciary Committee. Debo, welcome to the show.

Debo Adegbile:

It’s great to be with you, Preet, and I’m happy to be with you today, speaking not on behalf of my client, Harvard, but in my individual capacity.

Preet Bharara:

Well, it’s good to talk to you. There’s hardly anyone around who understands and knows these issues better. Obviously, you have a particular perspective and represent a particular client, but I still think you can talk generally about what’s going on in the Supreme Court. First, for people who may not be as versed as you are, what is the constitutional violation that is alleged by the petitioners in this case? What did they say about affirmative action in higher education contravenes the constitution?

Debo Adegbile:

It’s an important question, Preet, and as you may recall, there were two cases that were heard together on Halloween just a week or so ago. One was at the University of North Carolina, and the Harvard case was an attack on the admissions processes at Harvard. The core injury that’s complained of by the plaintiff in both cases is the idea that considering race as one of many factors in the admissions decision process is a violation of either the equal protection clause of the 14th Amendment or Title VI of the Civil Rights Act. Title VI is a statute, a federal civil rights statute that essentially says that entities and schools that receive federal aid must apply and follow federal civil rights, and so the claim against Harvard is a claim being asserted because it’s a private school under Title VI of the Civil Rights Act, and the claim against the University of North Carolina is touching both on the constitutional issue and the Title VI claim as well.

Preet Bharara:

Right, so this is not a case of first impression. I mentioned a couple of precedents in my intro. In 2003, in a case called Grutter v. Bollinger, the court addressed the central issue, and found what?

Debo Adegbile:

In Grutter v. Bollinger, the court extended and continued a rationale that there is a compelling governmental interest, essentially that you are permitted under the United States Constitution to consider race as one of many factors in a college admissions process, provided that it is not a mechanistic approach, not a crude approach that just assigns points, but is an ingredient in the overall application, sort of a whole person review, and in the Grutter case, the Supreme Court lifted up an earlier opinion from the 1970’s that involved the University of California, the Bakke opinion, and continued the idea that there are educational benefits that are obtained from learning across racial differences and that schools may have an educational interest in bringing together people from different experiences, different walks of life, and different races together in residential college communities so that they can learn from each other.

Preet Bharara:

So if these principles … I’m going to throw one down the middle for you, Dave, okay? You ready?

Debo Adegbile:

I’m ready.

Preet Bharara:

If these principles were upheld and extended as recently as 2003, why are we even talking about this in the court? What’s changed?

Debo Adegbile:

It’s a good point, Preet, but I’ll do you one better. They were extended more recently than that because the Supreme Court ratified its ruling in the Grutter, the University of Michigan cases, in the Fisher case, the University of Texas case, which was even more recent than Grutter, and so your question is well put. I would just say that it’s even more-

Preet Bharara:

It’s even worse.

Debo Adegbile:

It’s a worse scenario, where the court-

Preet Bharara:

What has changed?

Debo Adegbile:

The composition of the court has changed. I will say that this is an area … We’ve now talked about cases back to the 1970’s. Here we are in 2022. One of the things that we learned in civil rights is that some of the issues that appear to have been settled yesterday resurface and come back like a phoenix and rise again in a new day, and we’ve seen that pattern in a lot of context.

We’ve seen it in voting rights, we’ve certainly seen it in the area of admissions, college admissions and affirmative action, and so what the principle thing that has changed is that the composition of the court has changed and that they’re willing to ask the question anew about whether they will continue the precedent or revisit it.

Preet Bharara:

Another example is abortion, the Dobbs case that we’ve talked about a number of times on the podcast. Do you feel comfortable comparing how dramatic it would be to reverse the court’s precedents on affirmative action compared to how dramatic it was for them to have reversed Roe and Dobbs? Is there a comparison there or not?

Debo Adegbile:

Well, obviously, the two deal with very different pieces of human life and human endeavor, but both are important and both constitutionally have very substantial reliance interests. That is to say where you have precedents that are on the books for 40 years, there is a sense in which you begin to organize higher ed around certain principles and admission. Certainly, we have organized women’s privacy and their dominion over their own bodies around the Roe precedent, and that continues to have impact not just 40, 50 years ago, but today, for women who are thinking about organizing their lives, having dominion over their reproductive health, and all of the economic and life issues that flow from there, so I think both cases are precedents that are very important that people rely upon, and it’s unsettling as we have seen in the area of Dobbs and is creating a lot of hardship and concern across the nation, and so too would it be if the court were to revisit the precedents that we rely on in the higher ed admissions context, though, obviously in a different area.

Preet Bharara:

Who are the plaintiffs here in both the North Carolina case and the Harvard case?

Debo Adegbile:

There is a group that was created for the purpose of bringing these cases that is called Students for Fair Admissions, SFFA. This is a group created by a person whose name is Ed Blum. Ed Blum is not a lawyer, but he’s a person who for many, many years, has raised money for purposes of bringing challenges against civil rights statutes and other decisions of the federal courts that allow for there to be some affirmative consideration of race in service of trying to make our society more just and equal. Ed Blum was behind the challenges to the Voting Rights Act and to the so-called Preclearance Provision of the Voting Rights Act, and he was behind the case in which the Roberts Court struck down the Preclearance Provision of the Voting Rights Act called the Heart of the Voting Rights Act in Shelby County, a case that I argued at the high court, and Ed Blum was behind the Fisher case against the University of Texas, which arose in the context of admissions and was a previous challenge to considering race as one of many factors. He lost that case, but during the oral argument in the case, Justice Alito asked a question about what the implication of the admissions policies were on Asian-American applicants, and after losing that case, Ed Blum said publicly, “I need Asian plaintiffs.”

“Get me Asian plaintiffs.” He then created SFFA, which is a group of disappointed Asian-American applicants to Harvard and their parents, and that entity was organized for the purposes of bringing these challenges.

Preet Bharara:

Address that if you can, the argument that the Harvard policy, in particular, discriminates and harms and injures Asian-American students.

Debo Adegbile:

Absolutely. I think at the core of the argument is that we have seen, and the data bears out, that in the aggregate, obviously, there are always individual cases, and so we’re speaking about data looking across now, but in the aggregate by racial and ethnic group, the Asian-American applicants to Harvard University, and indeed many, many colleges and universities, perform higher in the aggregate on certain high stakes tests, like the SAT or ACT, and also on grade point average, both key ingredients of college admissions, and so some people argue that it should follow that they should be very successful in the college admissions process, and indeed they are. They’re successful at Harvard and successful in many places, but Harvard receives 60,000 applications for 2,000 spots, 1,600 beds at the end of the day, and so Harvard is a admissions process in which there are many, many, many more qualified people than are going to be able to gain admission and attend, and so the competition is intense. What we found when we litigated the case is that although Asian-American applicants perform very high in the aggregate on some of the indicia, in other areas, they didn’t perform as high, their success rate is tremendous at Harvard, and there’s a very significant population of Asian-American applicants at Harvard, but Harvard has decided that having students be able to learn from each other and across racial differences is important, and there are a range of students that get admitted to Harvard, and one of the factors that’s considered is racial diversity. The claim that Asian-Americans were being discriminated against at Harvard was tried over three weeks, and SFFA failed at every turn to prove out that claim.

We had a person who would later win the Nobel Prize in economics, who did the numerical and data analysis, and his findings were upheld by the court and made it into the opinion.

Preet Bharara:

The fundamental issue here for both colleges involved in these cases is diversity, and moving to the oral argument, a number of justices had some questions about what diversity means. I think Justice Thomas, who now asks questions during oral argument said, “I’ve heard the word diversity quite a few times and I don’t have a clue what it means. It seems to mean everything for everyone.” How do you think diversity should be understood and defined for these purposes?

Debo Adegbile:

I actually think it’s pretty clear. Our educational system, indeed our nation, is organized in a way that very often, because of our history and because of some of the claims of history in the present day, not all of our neighborhoods, not all of our schools have a cross-section of people. That is to say that although we don’t have segregation anymore, we don’t separate people by rule of law as we did for many years in the United States under Jim Crow. There are some consequences for how we organized ourselves for so many years, and many, many high schools are racially identifiable. That is to say that they’re majority white high schools, majority Black high schools, majority Latinx high schools, in some cases, majority Asian-American high schools, and this continues for K through high school, and so really, the first time that many students are getting to learn across these differences and come together and have an opportunity to break down stereotypes and to learn that different people of the same race don’t all think the same way, haven’t all had the same experiences happens at college for many people.

What colleges and universities have determined is that everybody’s educational experience is improved when you have the opportunity inside and outside of the classroom to learn about these differences and to experience it not only in bio class, or in math, or in English, but also in the dormitory, on the fields of play, and while you’re working on your chamber music.

Preet Bharara:

Now, the plaintiffs in both cases talk a lot about one of the most famous cases ever heard by the Supreme Court, Brown v. Board of Education, unanimous decision from the 1950’s. Very briefly, what is the argument they’re making about why Brown precludes this kind of decision-making, and why in your view is that not correct?

Debo Adegbile:

The key argument is a bit of a reductive view of Brown v. Board of Ed. Brown v. Board of Ed was a case that was trying to break apart the intentional degradation of a race of people and the separation and segregation in the context of schools. That’s what Brown was about. The reductive argument that’s being made is that any consideration of race at all in any context for any purpose is the same thing as intentionally trying to subjugate and segregate people as was happening in Brown v. Board of Ed, and so they’re trying to draw in the doctrine a symmetry between harmful attacks on people because of their race, and consciousness of race for purposes of building a greater understanding and lifting up the democracy and the educational experiences, and that, I think is the fundamental difference here, that Brown was about opening doors and creating opportunity for folks to be equal, and they are now trying to suggest that any awareness or consideration of race is the same as intentional discrimination where you’re trying to subjugate people, and I just don’t think that that’s consistent with common experience. It’s also not consistent with the findings of the trial court and the appellate court in our case.

Preet Bharara:

Not withstanding that, one or more justices seem to be receptive to the idea and receptive to the idea of overturning prior court precedent, or one of our partners, Seth Waxman argued in the Supreme Court. In any way that you think is appropriate given your involvement in the case, how did oral argument go, and what can you predict about which justices will come out where?

Debo Adegbile:

Sure. The arguments were … It was five hours of arguments in the two cases, just about five hours of arguments. An extraordinary day. There was vigorous advocacy at the podium from every advocate. Seth was superb. A lawyer from the Lawyers Committee from for Civil Rights argued in the North Carolina case, the Solicitor General Elizabeth Prelogar argued in both cases and was sensational, and I guess what I would say about the experience in the courtroom is that in a sense, it seemed to be loosely that there were sort of three cohorts of justices. There was a cohort of justices who seem skeptical of the precedent, and perhaps willing to revisit it in some way.

Preet Bharara:

And who are those? Who are those?

Debo Adegbile:

By my lights, it was Justice Thomas, Alito, and the Chief Justice, and it was a little bit harder to tell, but Justice Gorsuch seemed to perhaps be in that space, though it’s notoriously difficult to go from predictions and oral argument to what actually happens in a final opinion. There was then on the other side Justice Sotomayor and Kagan, and Justice Ketanji Brown Jackson, who participated in the UNC case, but not the Harvard case, because she used to be on the board of Harvard, and so she recused herself from that case. Those three seemed to be very firmly on the side of the precedent and to be persuaded by the lower court’s rulings, and so that’s where they are. Then, it was sort of interesting to hear the questions from Kavanaugh and Justice Coney Barrett, those two justices who were asking questions that seemed to be consistent with a broader range of rulings, including some that may not reach the most aggressive outcomes in the case and may not revisit the precedents, even if they decide that there is some additional clarification that the court may need to add. Again, it’s a fool’s errand to go from a oral argument to a specific prediction about what the opinion will say, but I-

Preet Bharara:

That’s what we do on podcast.

Debo Adegbile:

But because that’s the business that you’re in, I would say that I detected that there is some reasonable possibility that what will happen in this case is what has happened in other cases in this area, and that is each time that these issues have come to the court in Bakke, the University of California case, in Michigan, the Grutter case, and in Texas, Fisher v. Texas, each time the market priced in a loss and each time on the other side, what we came to say is that rumors of my demise have been greatly overstated. Now, we’ll have to wait and see, but we should know by June.

Preet Bharara:

Final question, and not to be negative on it, if those precedents are overturned, what is your understanding of what the consequences will be with respect to the diversity and makeup of classes at Harvard and UNC and other places?

Debo Adegbile:

I think the best answer to that question, Preet, comes from two things that were before the court. First, the findings in our case showed that where you use so-called race-neutral options, options that ignore race as part of the analysis, that there would be a sharp drop in the diversity of the class and the specific race-neutral options that were proffered by plaintiffs showed that the drop of Africa- American students, in particular, would be rather substantial, and so there was actual evidence about what the world would look like if race is not considered as part of the process, but the other thing that I point to is that we have sort of natural test cases in the country of states that have banned under their state law consideration of race and admissions. There are approximately nine states that have done so, very often by ballot initiative. Those states showed that after the ballot initiative passed, there was a reduction in the minority student admits to colleges and universities. I think the data is that it was most pronounced for Black students.

In some places, there were diminutions in Latinx students as well. One of the factors to contend with, Preet, is that the population growth of the Latinx population is so rapid, that sometimes the population is overcoming the diminution that had existed, and so the data’s a little bit inconsistent as between Latinx students and Black students, but overall, schools from Michigan and from California filed briefs saying that they’ve had a devil of a time trying to reach the levels of diversity that they think the students would benefit from on campus at their top schools.

Preet Bharara:

I have 100 more questions, but because this is Stay Tuned in Brief, I’ll end with a very quick two part-question. One, when can we expect a decision, and two, how far in advance of that decision will it be leaked?

Debo Adegbile:

Well, the second-

Preet Bharara:

The second one was a joke. The second one was a joke.

Debo Adegbile:

The second one, I guess is a question of more recent vintage. Look, what typically happens, where you have the blockbuster cases, the cases that are of tremendous consequence, as this one will be regardless of what the ruling says, these cases tend to get held until the end of the term. The Supreme Court rises at the end of June for the summer, and so if I were a betting man, I would expect the opinion probably in June and not before, though anything is possible, and I will leave predictions about leaks to others.

Preet Bharara:

I think there’s not going to be another leak. I think people have learned their lesson about that, but you never know. You never know. Thank you for coming on the show, Debo Adegbile. Great work, and I’ll see you at the office.

Debo Adegbile:

So good to be with you, Preet. Thanks for having me.

Preet Bharara:

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The Executive Producer is Tamara Sepper. The Technical Director is David Tatasciore. The Senior Producer is Adam Waller. The Editorial Producers are Sam Ozer-Staton and Noa Azulai. The Audio Producer is Matt Wiener, and the CAFE Team is Matthew Billy, David Kurlander, Jake Kaplan, Namata Shah, and Claudia Hernandez.

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