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Supreme Court finds Harvard, UNC affirmative action programs violate 14th Amendment


On this morning that the Supreme Court ruled against the admissions policies at two elite universities. Harvard and the University of North Carolina are selective schools. Far more people apply to those schools than get in. Each school used race as one of the factors to decide who got that coveted slot. In Harvard's case, it was considered right at the very end, along with other factors. The court said that is wrong. And we begin with NPR's Nina Totenberg, who's been listening to the justices read their rulings and opinions this morning. Nina, good morning.

NINA TOTENBERG, BYLINE: Good morning, Steve.

INSKEEP: What's it been like in that ornate courtroom here in Washington?

TOTENBERG: Well, it was really a rather solemn morning. After a couple of other announcements of opinions, the chief justice said he had the opinion for the court in the Harvard and University of North Carolina case. And he read for quite some time, as did the Justice Thomas, who wrote a concurring opinion agreeing with the chief justice. But as the first - as the only African American on the court for quite a long time now until the arrival of Justice Jackson, his words, of course, carried particular weight. And then Justice Sotomayor, who is the first Latina to serve on the court, had the - I would say the duty, almost, is the way one felt it - of reading a lengthy dissent on behalf of the three justices who did not agree, who wanted to keep going.

INSKEEP: Yeah. There's some complexity here as to who's in or out on various parts of the case, but essentially, we have a 6-to-3 ruling here, a 6-to-2 ruling on parts of it, since Justice Jackson recused herself from part of it. The bottom line here, though, from John Roberts, let's try to understand that. What, in his view, is wrong with using race as one of the factors in deciding who is admitted to a university?

TOTENBERG: As he began his opinion, he talked about the history of the country and the 13th, 14th and 15th Amendments enacted after the Civil War. And justices and judges refer to that as the second founding because it changed the structure of our Constitution so significantly. And he said that the foundational principle of those post-Civil War amendments was absolute equality, that it worked a broad transformation in the country, but not enough, because Jim Crow took effect until 1954, when the country began to redress its long-term segregation of the races in Brown v. Board of Education.

He then went on to say that we have, in our decisions over the last years since 2003, allowed some consideration of race as part of that sort of equalizing idea, although he never signed on to any of those opinions. And - but he noted that the last one, written by Justice Sandra Day O'Connor, had suggested perhaps a 25-year end. And he said we're now at 20 years, and there has to be a logical end point. We've come to that point, he said. We can't - we can no longer accept what the schools are telling us - essentially, trust us.

INSKEEP: I think that - I mean, there's a lot of details here, but there's a fundamental idea of race and a fundamental idea of the country that is addressed here. And I want to turn to the dissent as well, because that seems to suggest a different idea of the country. I think you're telling me, and by reading Justice Roberts' own words here today, I get the idea that he is essentially saying there had been segregation in law. That was bad. It was allowed to have a period to try to correct the injustice of that, but that it needed to be in some way temporary, because considering race at all in law is just fundamentally wrong, according to Justice Roberts. And that is why these policies are being eliminated at Harvard and the University of North Carolina, and presumably just about everywhere else. But Justice Sonia Sotomayor seemed to have a very different view of race in this country. What did she have to say about that?

TOTENBERG: She said that the opinion today, quote, "rolls back the progress of the last period of time" and refuses to - and that the court's majority refuses to recognize that we are still an endemically segregated society. Don't be deceived, she said. The text and history of the 14th Amendment clearly endorsed limited consideration of race, and she pointed to various statutes enacted after the 14th Amendment giving benefits specifically to African Americans in a very race-conscious way. She then said that for 45 years, this court has extended the promise of Brown v. the Board of Education into higher education. Today, this court singles out diversity in higher education and says it is no longer permitted. So it allows a person of - a person's skin color to be considered when customs officials are screening people at the border, but it does not allow universities to consider race in order to benefit people who are - have long been on the short end of the stick.

INSKEEP: I just wanted to note one other thing in the 30 seconds we have, and then we're going to turn to another guest to analyze this some more, Nina. The current affirmative action policies at universities were very subtle compared to policies of the past because of prior court rulings. They said you can't blatantly have a racial quota - they said that in the past - but you could consider it as a factor. And universities came up with these other elaborate ways to consider race. Now Roberts and others, the majority, say that is wrong. Did they leave any room for universities to come up with some even more nuanced way to consider race?

TOTENBERG: I haven't read the entire opinion. It's long, and I'm sitting in a booth at the Supreme Court...

INSKEEP: Understood.

TOTENBERG: ...Having run down here. But I think this opinion makes it very difficult. And one assumes that these kinds of issues will apply to high schools, will apply to employers, will apply to - in all kinds of - the Rooney Rule for football. I don't know how the court would view that. This is a very far-reaching opinion, and it leaves very little wiggle room.

INSKEEP: NPR legal affairs correspondent Nina Totenberg, it's always a pleasure hearing your wisdom. Thanks so much.

TOTENBERG: Thank you, Steve. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.