Tag: affirmative action

The Supreme Court’s Conservatives Are Going To End Affirmative Action In Higher Education

The Supreme Court’s six conservative justices appeared ready to end affirmative action on Monday, during arguments in two cases challenging the limited use of race in college and university admissions.

In Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina, white and Asian students claim that the use of race in admissions that helps the enrollment of Black, Hispanic and Native American students unconstitutionally discriminates against whites and Asians by violating Title VI of the Civil Rights Act in both cases and the 14th Amendment’s Equal Protection Clause granting equal treatment to all persons under the law in the North Carolina case.

The lawyers for Students for Fair Admissions, a nonprofit group run by conservative lawyer Ed Blum, who is white and has brought numerous cases before the Supreme Court challenging race-conscious policy-making, argued that any use of race was unconstitutional. They asked the court to overrule its prior precedents authorizing the limited use of race to achieve diversity in the 1978 case of Regents of the University of California v. Bakke and the approval of the limited affirmative action program used by the University of Michigan in Grutter v. Bollinger.

“Grutter is grievously wrong,” Patrick Strawbridge, counsel for Students for Fair Admissions, said in arguing that any consideration of race in admissions is unconstitutional and “divisive.”

The court’s six-justice conservative supermajority has the votes to overturn Grutter. Justices John Roberts, Samuel Alito and Clarence Thomas have all previously ruled in favor of ending race-conscious affirmative action programs. While Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have a limited record on the issue, they all aligned with the arguments made by the plaintiffs on Monday.

Indeed, in their questioning of the lawyers in support of the University of North Carolina, the conservative justices set up a lose-lose situation.

First, they pressed Ryan Park, North Carolina’s solicitor general, and U.S. solicitor general Elizabeth Prelogar to explain how the university measures diversity to know when it has reached a point where it no longer needs to have any kind of race-conscious admissions policy.

Gorsuch asked Park how the university can know it is reaching its goal of diversity “without taking account of numbers.”

Alito repeatedly pressed Park on whether the university would believe it met its goal if the percentage of underrepresented racial minorities, like Blacks, Hispanics and Native Americans, met the percentage of those groups in the broader state population.

“How do you know you’re done?” Barrett asked.

The Supreme Court heard arguments in two cases seeking to overturn prior court precedents on affirmative action in higher education on Oct. 31.

OLIVIER DOULIERY via Getty Images

Since the court banned the use of racial quotas in Bakke, any admission there that the diversity goal was based on a numerical judgment turned it into an impermissible racial quota and, therefore, a violation of precedent.

When they refused to state that they have a numerical quota to judge success, the conservative justices then argued that they were stating that there is no endpoint. This would be problematic because both Bakke and Grutter suggested that affirmative action programs must be time-limited. Grutter suggested a 25-year time limit, which would end in 2028.

“I don’t see how you say the program can ever end,” Alito said.

The lack of an endpoint was part of the reason why “racial classifications are dangerous,” Kavanaugh argued.

With no end in sight, the conservatives would be right to overturn precedent.

The three liberal justices pointed out the limited nature of the race-conscious admissions policy used by the University of North Carolina, as the university does not require any applicant to state their race and only uses race as one of many considerations in admissions.

The existence of the checkbox allowing applicants to voluntarily note their race was only one factor among many that admissions officers can take into account. There were only 1.2% of admissions where race played a role, according to expert analysis provided by the University of North Carolina.

Justice Ketanji Brown Jackson also made the case that ending these policies will result in the same claims of discrimination brought by the plaintiffs.

Strawbridge argued that admissions officers could consider essays about an applicant’s family background, but not race. Jackson posed a hypothetical about two applicants, one explaining their family history of attending the university for five generations and the other detailing their descendants being enslaved people who were denied access to the university.

Jackson wanted to know: Would this be an impermissible consideration of race if the admissions office used the second applicant’s argument in deciding on admitting them? And if not, wouldn’t this mean that Black applicants would be disinclined to note their race, family history or life experience when applying to schools?

No admission could “hinge on” the use of race, including an essay explaining family history, Strawbridge said.

If that were the case, Jackson followed up, wouldn’t that mean Black applicants would be disinclined to mention their race or any family history or life experience that could reveal their race and, therefore, face the same problem of discrimination that the plaintiffs argue that whites and Asians face now?

Previous studies of states that banned the consideration of race in admissions found that the implementation of race-neutral policies led to a reduction of Black and Hispanic enrollment in the most highly selective colleges and universities.

The two cases before the court were originally meant to be heard together, but were split into two separate arguments because Jackson previously served on the Harvard Board of Overseers and recused from the Harvard case.

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October 31, 2022
Supreme Court Justices Signal Willingness To End Affirmative Action

Topline

The Supreme Court appears poised to outlaw affirmative action policies that take race into account in university admissions, as the court’s conservative justices signaled during oral arguments Monday that they’re open to ending the practice in favor of “race-neutral” admissions—even as the court’s liberal justices asserted its importance.

The University of North Carolina campus in Chapel Hill, North Carolina.

Getty Images

Key Facts

Justices heard arguments Monday from activist group Students for Fair Admissions arguing that affirmative action policies violate the 14th Amendment’s equal protection clause, with the first case centered on the policy at the University of North Carolina.

Conservative justices including Amy Coney Barrett and Chief Justice John Roberts suggested that applicants could make up for not having their race directly taken into account by writing essays showing how they’ve overcome racial discrimination, or similar steps showing how their racial background helps their application versus just “ticking a box.”

Roberts suggested forcing schools to get rid of their affirmative action policies could be “an incentive for the university to truly pursue race neutral alternatives” that could still be effective in promoting diversity, and Justice Brett Kavanaugh pointed to the fact that some states have already gotten rid of affirmative action and can still “produce significant numbers of minority students on campuses.”

Justice Neil Gorsuch questioned what the difference is between encouraging diversity and racial quotas in admissions, which the Supreme Court previously ruled in 1978 are not permissible.

Justice Clarence Thomas pushed back when North Carolina Solicitor General Ryan Park argued diverse groups “perform at a higher level”—saying he “[doesn’t] put much stock in that” because he’s heard similar arguments about segregation—and Justice Samuel Alito questioned the value of checking a box on race in the first place.

The court will also hear a second case Monday concerning the affirmative action policy at Harvard University.

Chief Critic

The court’s liberal justices pushed back heavily Monday against attorney Patrick Strawbridge, who argued on behalf of the challengers. “I thought part of what it means to be American … is that our institutions are representative of who we actually are, in all of our variety,” Justice Elena Kagan argued in favor of policies that would encourage diversity, acknowledging that top universities “are the pipelines to leadership in our society.” Justice Ketanji Brown Jackson, who is recusing from the Harvard case but participated in the UNC case, argued there isn’t sufficient evidence to show that students were admitted solely based on their race, or that the students represented by Students for Fair Admissions weren’t admitted solely because they were from more overrepresented racial groups. Not allowing minority applicants to express their race, while still having other factors taken into account, “seems to have the potential of causing more of an equal protection problem than it’s actually solving,” Jackson also argued.

Big Number

41.5%. That’s the approximate percentage of U.S. universities that take race into account when determining admissions, according to a study by the National Association for College Admissions Counseling that Harvard cited in a court brief, as well as 60% of more selective universities that accept 40% or fewer of their applicants. At least nine states—Arizona, California, Florida, Idaho, Michigan, Nebraska, Oklahoma and Washington—already have policies that don’t allow affirmative action in university admissions, according to the National Conference of State Legislatures.

What To Watch For

The Supreme Court likely won’t rule for a few months on the two affirmative action cases. If the justices do side with the challengers, it could have wide-reaching implications for schools across the country. Harvard has argued in court briefs that taking race out of its admissions process would reduce enrollment of Black students at the school from 14% to 6% of its student body, and Hispanic enrollment from 14% to 9%. The University of Michigan, which had to adopt race-neutral policies after a state ballot measure abolished affirmative action, said in a court brief that as a result, its Black population decreased by 44% between 2006 and 2021, even as Michigan’s population of college-aged African Americans increased, and the Massachusetts Institute of Technology argued getting rid of race in its admissions would result in the “denial of talented prospective scientists and engineers with exceptional promise.” That lack of diversity could have broader-reaching implications: MIT noted it would result in marginalized groups becoming further unrepresented in science and engineering fields, while Harvard noted it would also lead to a 14% drop in the number of students at the university studying humanities subjects. A coalition of smaller liberal arts colleges pointed to research arguing that exposure to diversity “improves learning experiences, problem-solving and critical-thinking skills, and interpersonal and leadership skills,” among other benefits.

Key Background

The Supreme Court agreed to take up the affirmative action cases in January after lower courts sided in both cases with the universities and found their admission policies do not violate federal equal rights protections. Affirmative action was first established through an executive order in 1965 that told employers to “take affirmative action to ensure that equal opportunity is provided in all aspects of their employment,” and the Supreme Court then upheld the policy in a 1978 ruling finding universities could consider race as part of its admission process. It then further affirmed the practice in rulings in 2003 and 2016, though the latter ruling was narrowly tailored to the specific policy at the University of Texas that was at issue. Critics of the policy argue affirmative action is unfairly discriminatory against white and Asian American applicants, who are more overrepresented in applicant pools as compared with Black and Hispanic students.

Tangent

Solicitor General Elizabeth Prelogar also argued on behalf of the Biden Administration that affirmative action should be upheld Monday. Prelogar argued that cutting off race-based admissions would negatively impact the federal government and the U.S. military by impacting the diversity of people who get admitted to service academies or to the military through ROTC programs at universities. The pipeline from ROTC programs and service academies is “critically important,” Prelogar argued, noting that the military promotes from within and people who get admitted through university programs now will affect “the closed universe of people who will be eligible for leadership in the military in 20, 30 years time.”

Further Reading

Affirmative Action Could Soon Be Overturned As Supreme Court Takes Up Harvard And UNC Cases (Forbes)

In cases challenging affirmative action, court will confront wide-ranging arguments on history, diversity, and the role of race in America (SCOTUSblog)

A Timeline of Key Supreme Court Cases on Affirmative Action (New York Times)

In Clash Over Affirmative Action, Both Sides Invoke Brown v. Board of Education (New York Times)

Alison Durkee, Forbes Staff

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October 31, 2022
The College-Admissions Merit Myth

Tomorrow, the Supreme Court will hear oral arguments in two cases that could end America’s experiment with affirmative action in higher education. The challenges to the admissions programs at Harvard and at the University of North Carolina at Chapel Hill—both brought by Students for Fair Admissions, a coalition of unnamed students assembled by the conservative legal strategist Edward Blum—argue that the institutions discriminate against Asian American students, and that eliminating the use of race in admissions would fix the problem.

Lower courts have rejected SFFA’s arguments, leaning on more than 40 years of precedent that says the use of race in admissions is permissible in narrow circumstances. “Harvard has demonstrated that no workable and available race-neutral alternatives would allow it to achieve a diverse student body while still maintaining its standards for academic excellence,” Judge Allison Burroughs wrote in her 2019 opinion. But SFFA pressed on, and now the case sits before a conservative Supreme Court that has shown a willingness to overturn well-established precedents.

Richard D. Kahlenberg: The affirmative action that colleges really need

In her new book, Is Affirmative Action Fair? The Myth of Equity in College Admissions, Natasha Warikoo, a sociologist at Tufts University who has spent years examining race-conscious admissions, assesses the positions of those for and against affirmative action, and argues that we’re asking the wrong questions about how students get into college. By exalting merit, Warikoo warns, Americans have developed a skewed perception of the process—a perception that leads to challenges such as the one before the Court.

I spoke with Warikoo about her book, the Supreme Court hearing, and how we can better understand admissions.

This conversation has been edited for length and clarity.

Adam Harris: You write, “When we recognize the diverse goals that universities attempt to address through college admissions, it becomes clear that admission is not a certification of individual merit, or deservingness, nor was it ever meant to be.” Can you expand on that idea? Where do we have flaws in our understanding of college admissions?

Natasha Warikoo: In the past, it was like “We want to have a bar.” You had to have some demonstration that you could handle the work that we’re going to give you. And some of that was exclusionary. It was like “Can you pass the Latin test?” Well, most schools didn’t teach kids Latin, so it’s not that that was fair—it was “You’re going to be doing Latin; do you know Latin?”

But now, when we’re talking about super-selective places—there are more than 200 of them, so not just the Ivies, but also not most colleges—they have so many different interests that are playing into who they’re admitting. You’ve got the sports coaches who are trying to get their recruits; you’ve got the development office that gives a list and says, “These people have done a lot for this university—make sure you take a close look at that”; there’s the humanities departments who want to make sure there are people interested in the humanities, not just in STEM; the orchestra’s bassoon player may have graduated, and now the orchestra needs a bassoon player. So, there are all these different things that are going on, and the admissions office is trying to fulfill all these different interests and needs.

But ordinary people treat admissions as, you know, they’re lining people up from best to worst and taking the top ones, and if one of these says they’re not coming, then they take the next person. Well, that’s not how it works. They’re fulfilling organizational needs and desires. But somehow, we treat it as a prize—and whoever is most deserving gets in.

Harris: That plays into the broader idea in America around merit, and the way that we’ve oriented our society around merit. How do merit and the idea of fairness work together to give us the wrong idea about admission systems?

Warikoo: In all of these international surveys, when you look at respondents’ belief about whether people should be rewarded for merit over other things, Americans are much more likely to say yes than people in most other countries. A lot of modern societies believe in these ideas of meritocracy, but the United States is especially attached to the idea. We have this belief that some people are deserving—and the unspoken idea that some are undeserving. And there’s a sense of entitlement, like I did all of these things; I deserve a spot at these places.

But we should stop treating college admissions as if everybody is on an equal playing field and that the person who is the smartest, the most hardworking, the one with the most grit, is the one getting in. Instead of arguing about how affirmative action goes against our ideas of meritocracy, we should look at what colleges are actually trying to do.

Harris: Well, let’s talk about affirmative action. How has it been viewed since Justice Lewis Powell accepted the diversity rationale in the Regents of the University of California v. Bakke case in 1978?

Warikoo: There’s a whole industry of research that develops after that decision to really try to dig into the impact of a diverse learning environment: What is the impact of having a roommate of a different race, going to a college that is diverse, being in a class with students who are a different race? And this research shows all these benefits: Groups make better decisions; students have more intellectual engagement; they improve their racial attitudes. There are even some findings that show a positive impact on civic engagement down the line. A student may not even have a diverse set of friends, but if they’re on a diverse campus, there seems to be some kind of impact.

So, all of this research shows these positive effects, and those data have been used in subsequent court cases defending affirmative action. But in the public conversation, many people recognize that it’s also an equity issue.

Harris: In 2003, Justice Sandra Day O’Connor said the Court expects that 25 years from now, the use of racial preferences will no longer be necessary. And that’s what a lot of opponents of affirmative action say now: It may have been justified in the past, but it’s no longer necessary—and if we need something, we might be able to find a proxy. Are there proxies for race in admissions?

Warikoo: The legal requirement is that when you’re using these suspect categories such as race in a policy, you have to show that there’s no other way that you could do things instead. And it’s pretty clear that there’s no good stand-in for race. We can use class, and class is important. But I don’t see these as either-or. The Georgetown law professor Sheryll Cashin has looked at zip code as a stand-in, and it’s pretty clear that such an approach is not going to have an impact on the numbers of underrepresented minority students on campus. Because, you know, the overwhelming majority of people in the United States today are white. The majority of people who are poor in this country are white. So you’re not really going to racially diversify by looking at class.

Colleges have tried different things, such as the Texas “10 percent plan.” The research suggests that these other ideas are somewhat helpful, but the problem has been that graduation rates can go down when you’re just using a percent plan. And it’s not a stand-in for race-based affirmative action.

We can look at the data from the states that have banned affirmative action to understand that they have not figured out a stand-in. We see declines in every state, year on year, of the number of underrepresented minorities when affirmative action gets banned.

Harris: One of the through lines in the book is the purpose of higher education. What can colleges do better to be more honest about their goals?

From the September 2021 issue: This is the end of affirmative action

Warikoo: One is being careful about how they talk about admissions. And when you dig into their language, many schools say that they’re looking to build a class, and that everyone makes a unique contribution. But they’re still publishing acceptance rates. There are so many ways in which the language they use buys into this idea that they are a place of excellence. This is the best class ever, you’re told when you’re a freshman.

When you have these elite colleges in which the student body comes from more resourced families than the average across 18 year-olds, it’s not just the best of the best. Your family’s resources play a role—whether you have parents who went to college, whether you grew up in certain neighborhoods or went to certain schools. Two-thirds of American adults don’t have a bachelor’s degree.

But I keep coming back to the question of What are we trying to do here? Our spending in the U.S. on higher education is regressive. The most elite colleges accept students who are the highest achieving and most resourced. But who needs the most support? When you look at what community colleges are doing in terms of social mobility, they blow places like Harvard and Tufts out of the water. Colleges should think much more about the role they want to play in our society, and how they should align admissions to those goals.

Harris: As I got toward the end of the book, where you talk about solutions, a couple of things really stuck out: the sort of anti-inclusive instinct that a lot of institutions have in terms of increasing their enrollment, where they don’t want to increase enrollment because that may upset alumni who attach value to the selectiveness of their institution. Or, if there were an admission lottery, families of high achievers may be frustrated. And my takeaway was: There’s really nothing the institutions may be able to do that is going to make everyone happy, so maybe they should just do what’s just.

Warikoo: Yes. There are so many more amazing 18-year-olds in our country—deserving, hardworking, ambitious, smart, whatever superlative you want to use—than there is space for them at Harvard, at UNC, at any given school.

But we have to stop acting like you deserve it and you don’t deserve it. It’s not about who deserves it. And that’s why I talk about a lottery system, because it implies you don’t deserve this more than anyone else—you got lucky. It already is luck: that your parents could afford to buy a house near a school that had a college counselor, or you had a tutor who could help you with your essay, or you went to a school with a crew team and you got recruited for crew—all kinds of things. It is luck. Why not call it what it is?

Adam Harris

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October 30, 2022
With the fate of affirmative action in the hands of the Supreme Court, these graduates are fighting to save it | CNN

CNN
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For nearly 60 years, institutions of higher education have been able to give limited preference to people of color and women with admissions.

The practice, advocates say, has afforded marginalized people a fair chance to attend colleges and universities that may have otherwise overlooked them. It has also been a tool to prevent discrimination at institutions, many of which historically only admitted White students.

Now the fate of affirmative action is in the hands of the conservative majority Supreme Court. On Monday, justices will hear arguments for two cases at Harvard and the University of North Carolina.

The challenges are being spearheaded by conservative activist Edwin Blum who filed the lawsuits in 2014.

The Harvard challenge cites Title VI of the 1964 Civil Rights Act, which prohibits schools receiving federal funds from discriminating based on race. The UNC lawsuit also claims Title VI grounds, as well as a violation of the 14th Amendment’s guarantee of equal protection of the law, which covers state institutions.

The Lawyers’ Committee for Civil Rights is among the groups that will be defending the constitutionality of affirmative action before the Supreme Court.

Genevieve Bonadies Torres, associate director for the Educational Opportunities Project for the committee, said affirmative action has led to college campuses becoming more diverse. In return, Black and brown students are able to achieve “profound economic mobility” and uplift their communities, Torres said.

“What we know from both experience and research is that when colleges stop considering race, they have seen steep declines in the number of Black and Hispanic students who gain access,” Torres said. “Students of color are less likely to apply once they stop considering race because they see them as less inclusive and welcoming.”

Torres said in 2015 students at both Harvard and UNC got involved in the cases by submitting letters and testifying about their experience on each campus and the importance of diversity.

CNN spoke with three of the college graduates involved about why they believe affirmative action should be upheld.

Cecilia Polanco grew up in a working-class family to parents who immigrated to the United States from El Salvador. Polanco said her father worked construction and her mother was a seamstress who also cleaned homes to provide for their family.

She said her parents allowed her to focus on school because they wanted a better life for her. Neither had the opportunity to finish school in El Salvador.

Polanco said she worked twice as hard and took AP courses in high school. She knew that as a Latina child of immigrants, she didn’t have the same resources as her White counterparts.

In 2011, Polanco was selected as a Morehead-Cain Scholar at the University of North Carolina-Chapel Hill which offered her a full ride scholarship.

Polanco said she believes affirmative action helped “level the playing field” so that students of color like herself could receive such a prestigious scholarship.

“If we had a more equitable and just society, we wouldn’t need something like affirmative action,” Polanco said. “But we do because our society is unjust.”

Polanco recounted being one of few students of color in some of her college classes and reading hurtful comments online from people who said she only got into UNC because the school had to meet a diversity quota.

But she didn’t let it deter her. She ultimately became a staunch advocate for affirmative action and was eager to contribute to the court case.

Now Polanco works as a community organizer in Durham, North Carolina where she focuses on philanthropy, racial equity and youth organizing.

“I think affirmative action helps see the ways in which I didn’t have some of the same opportunities as other people, as my White counterparts,” Polanco said. “There are many valuable life experiences that I had that made me a valuable asset to UNC.”

Polanco plans to be in Washington D.C. today as the Supreme Court hears arguments in the case. She believes the high court will ultimately uphold the practice.

“I’m definitely feeling optimistic,” Polanco said. “I feel like I’d be surprised if it went the other way.”

Andrew Brennen said he has always faced reminders that he is Black.

From high school peers asking why he didn’t fit the stereotypical Black teen to being one of few Black students in his classes at UNC, Brennen said he never felt completely accepted.

He recounted one class discussion about affirmative action at UNC when a White student questioned whether some Black students were fully qualified to be at the university. Brennen also witnessed the protests on UNC’s campus when the “Silent Sam” Confederate statue was toppled.

With college campuses still battling racism, Brennen fears that overturning affirmative action could only make matters worse.

“The evidence is pretty clear that when admissions officers are not able to take race into account, diversity on campus suffers,” Brennen said. “These efforts to hold folks accountable for the history and current day racism on campus are led by students of color. And the reality is that our schools need to be as diverse as the workplaces and societies that we are supposed to be preparing to move into.”

Brennen said he was eager to offer his perspective when the North Carolina Justice Center asked him to write a letter in support of affirmative action for the case.

Brennen, the son of two attorneys, credited affirmative action for the success of his family. His parents, he said, both grew up poor but were able to attend law school and pursue legal careers.

Brennen said his parents instilled the importance of education in him and taught him how affirmative action had helped many Black families prosper.

Brennen graduated from UNC in 2019 with a degree in political science. He now works for a social change venture.

“There are people out there who want to exploit the fact that affirmative action somehow means that your White kid is going to suffer,” Brennen said. “I think that hugely mischaracterizes what affirmative action is doing.”

Affirmative action, he said, gives everyone, regardless of race, a fair shot at a quality education and success.

Brennen said he worries that the conservative majority Supreme Court won’t agree.

“While I’m confident that our attorneys are making strong, constitutionally-backed, precedent-based arguments in support of affirmative action, I’m nervous that this court doesn’t care,” Brennen said.

Thang Diep experienced confusion over his identity throughout his childhood.

Diep said he immigrated with his family from Vietnam to the U.S. (Los Angeles) at the age of 8 and didn’t speak much English. As he gradually learned the language, he still had a thick accent and classmates teased him throughout the grade school. Some would call him Chinese when really he was Vietnamese. As Diep settled into American life, he watched his father travel back and forth to Vietnam for work so he could still provide for the family. Diep’s mom didn’t work and stayed home.

When it came time to apply for colleges, Harvard was not on Diep’s radar.

“It seemed out of reach and this impossible thing,” Diep said.

But three days before the admissions application was due, his mother encouraged him to take a chance and apply. Diep said in his admissions essay, he wrote about his struggles with racial identity and fitting in during grade school.

Diep ultimately was accepted and studied neuroscience at Harvard.

When Diep was asked to write a letter in support of affirmative action while attending Harvard, Diep jumped at the opportunity. He believed Asian Americans, particularly Southeast Asian Americans, had been left out of the conversation and wanted the world to know that they too support affirmative action. Asian Americans, he said, are not a monolith. Contrary to the “model minority” stereotype, some Asian Americans come from working- class families like he did, Diep said.

“I think we live in society where race plays a critical role in our experiences and what access to resources we have,” Diep said. “One way we can make the education system better is to acknowledge and take into account these barriers.”

Diep now works for a nonprofit that works to combat domestic violence.

Diep said he will be in Washington D.C. rallying around affirmative action with other college graduates and students. He said he stands in solidarity with all communities of color that are fighting to keep affirmative action.

“I feel like there is some sense of optimism,” Diep said. “I hope that this will become an educational opportunity to spread awareness about the impact.”

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October 29, 2022
Here’s what’s left for the Supreme Court’s final week of the term | CNN Politics

Editor’s Note: A previous version of this story ran in early June.

CNN
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All eyes are on the Supreme Court for its final week, as the justices will release cases on issues such as affirmative action, student loan payments, election law and LGBTQ rights.

Of the 10 cases remaining, several that most capture the public’s attention are likely to lead to fiery opinions and dissents read from the bench.

In addition, they will come down as the court finds itself in the center of a spotlight usually reserved for members of the political branches due to allegations that the justices are not transparent enough when it comes to their ethics disclosures, most recently with Justice Samuel Alito last week.

Here are some of the remaining cases to be decided:

The court is considering whether colleges and universities can continue to take race into consideration as a factor in admissions, a decision that could overturn long standing precedent that has benefited Black and Latino students.

At issue are programs at Harvard and the University of North Carolina that the schools say help them to achieve diversity on campus.

During oral arguments, the right side of the bench appeared ready to rule against the schools. Such an opinion would deliver a long-sought victory for opponents of affirmative action in higher education who have argued for decades that taking race into consideration – even in a limited manner – thwarts the goal of achieving a color-blind society.

John Roberts skewers Harvard attorney’s comparison of race and music skills as qualities in applicants

At the center of another case is a graphic designer, Lorie Smith, who seeks to expand her business and create custom websites to celebrate weddings – but does not want to work with gay couples out of religious objections to same-sex marriage.

Smith has not yet moved forward with her new business venture because of Colorado’s public accommodations law. Under the law, a business may not refuse to serve individuals because of their sexual orientation. Smith, whose company is called 303 Creative LLC, said that she is willing to work with all people, regardless of their sexual orientation, but she draws the line at creating websites that celebrate same-sex marriage because expressing such a message would be inconsistent with her beliefs.

The state and supporters of LGBTQ rights say that Smith is simply seeking a license to discriminate.

The conservatives on the court were sympathetic at oral arguments to those put forward by Smith’s lawyer. They viewed the case through the lens of free speech and suggested that an artist or someone creating a customized product could not be forced by the government to express a message that violates her religious beliefs.

Moore v. Harper has captured the nation’s attention because Republican lawmakers in North Carolina are asking the justices to adopt a long dormant legal theory and hold that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections.

The doctrine – called the Independent State Legislature theory – was pushed by conservatives and supporters of Trump after the 2020 presidential election.

The North Carolina controversy arose after the state Supreme Court struck down the state’s 2022 congressional map as an illegal partisan gerrymander, replacing it with court-drawn maps that favored Democrats. GOP lawmakers appealed the decision to the US Supreme Court, arguing that the North Carolina Supreme Court had exceeded its authority.

They relied upon the Elections Clause of the Constitution that provides that rules governing the “manner of holding Elections for Senators and Representatives” must be prescribed in “each state by the legislature thereof.”

Under the independent state legislature theory, the lawmakers argued, state legislatures should be able to set rules with little to no interference from the state courts.

The justices heard oral arguments in the case last winter and some of them appeared to express some support for a version of the doctrine. The justices could, however, ultimately dismiss the dispute due to new partisan developments in North Carolina.

After the last election, the North Carolina Supreme Court flipped its majority to Republican. In April, the newly composed state Supreme Court reversed its earlier decision and held that the state constitution gives states no role to play in policing partisan gerrymandering. After that decision was issued, the justices signaled they may dismiss the case.

Anita Hill: America “has lost confidence in the Supreme Court”

The Supreme Court is also considering two challenges to President Joe Biden’s student loan forgiveness program, an initiative aimed at providing targeted debt relief to millions of student-loan borrowers that has so far been stalled by legal challenges.

Republican-led states and conservatives challenging the program say it amounts to an unlawful attempt to erase an estimated $430 billion of federal student loan debt under the guise of the pandemic.

At the heart of the case is the Department of Education’s authority to forgive the loans. Several of the conservative justices have signaled in recent years that agencies – with no direct accountability to the public – have become too powerful, upsetting the separation of powers.

They have moved to cut back on the so-called administrative state.

In court, Chief Justice John Roberts as well as some other conservatives seemed deeply skeptical of the Biden administration’s plan.

A former mail carrier, an evangelical Christian, seeks to sue the US Postal Service because it failed to accommodate his request not to work on Sundays.

A lower court had ruled against the worker, Gerald Groff, holding that his request would cause an “undue burden” on the USPS and lead to low morale at the workplace when other employees had to pick up his shifts.

There appeared to be consensus, after almost two hours of oral arguments, that the appeals court had been too quick to rule against Groff.

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April 12, 2021
The Supreme Court just handed Joe Biden a series of setbacks. It may have also given Democrats new motivation to reelect him | CNN Politics

CNN
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President Joe Biden wasn’t planning to take questions on Thursday. His helicopter was waiting outside on the White House’s South Lawn.

But after a 10-minute statement on the Supreme Court’s affirmative action ruling, a CNN reporter called out, “Is this a rogue court?” The president stopped in his tracks.

Pausing to think a moment, he looked over his shoulder. “This is not a normal court,” he said before leaving.

This week’s monumental rulings – striking down affirmative action in college admissions and unraveling Biden’s student debt relief plan among them – amount to serious setbacks for a president who promised as a candidate to advance racial equity and erase student debt.

They are also an urgent reminder to Democrats of the enduring consequences of elections at a moment Biden’s advisers are searching for ways to inject enthusiasm into his bid for another term.

What impact that will have on the coming election remains unknown. But Biden and his team have already begun assigning blame on Republicans for dismantling programs that have benefited young, college-educated and minority voters – all critical components of the Democratic coalition Biden will need to mobilize if he hopes to win reelection.

That three justices within the court’s conservative majority were appointed by President Donald Trump – both Biden’s predecessor and, according to polls, his most likely opponent next year – creates even more of an impetus for Biden to use the rulings as a political cudgel as his campaign heats up.

“The excesses of the Supreme Court are going to backfire,” said Rep. Ritchie Torres, a New York Democrat. “You know, the Supreme Court’s decision to overturn Roe versus Wade reduced what was supposed to be a red wave in the 2022 election cycle to nothing more than a red trickle. So not only is the Supreme Court’s decision bad law, it’s also bad politics and it’s going to come back to haunt the Republican Party.”

Speaking to a group of Democratic donors in New York City on Thursday evening, Biden sought to underscore the stakes of the court’s new supermajority, a preview of how he’ll frame the issue over the coming year.

“The Supreme Court is becoming not just conservative, but almost – it’s like a throwback. It’s like a throwback, some of the decisions they’re making,” Biden told donors in a private dining room inside the Seagram Building. “Did you ever think we’d be in a position, after 50 years of acknowledging the right of privacy in the Constitution, suggesting that there’s no such thing as the right to privacy?”

Despite his criticism of the court, Biden has rejected some liberal suggestions on reforming the panel. He opposes expanding the number of justices that sit on the court and hasn’t embraced term limits.

“If we start the process of trying to expand the court, we’re going to politicize it, maybe forever, in a way that is not healthy,” Biden said during a friendly interview on MSNBC shortly after Thursday’s decision on affirmative action.

Biden’s student loan plan, which came about last year after months of agonizing internal debate over its costs and eligibility criteria, was intended to free low- and middle-income Americans from crippling debt.

Throughout the process, Biden expressed concern at being seen as offering a handout to the wealthy. Eventually, pressure to fulfill one of his top campaign promises led to the plan to forgive up to $20,000 in student loan debt for certain borrowers.

For months the White House publicly said there was no alternative plan if the Supreme Court struck down the student debt relief program. But behind the scenes, top White House officials were working for several weeks to fulfill a simple directive from the president to “be ready in the event the Supreme Court did not do the right thing,” White House officials said.

The president’s charge to his team was described as this: “If the court ruled against the program, find other ways to deliver relief for as many working and middle-class borrowers as possible, accounting for all the legal issues.”

For the past few weeks, White House chief of staff Jeff Zients gathered his team for weekly meetings to map out all scenarios for the Supreme Court’s ruling and explore all legal avenues available to them after the president told his team to build a “fully developed response” to all possible rulings, officials said.

Zient’s office – led by deputy chief of staff Natalie Quillian, the Domestic Policy Council, National Economic Council and White House Counsel’s Office – worked with the Department of Education and the Department of Justice to come up with options the administration could take if the ruling was not in their favor.

“All of these meetings were structured around one question – how would we be able to deliver relief to as many borrowers as we could, as quickly as possible under any possible outcome of the Supreme Court,” official said.

The White House also stayed in touch with and fielded suggestions for next steps from debt relief advocate groups and congressional allies throughout the process. Lawyers from the White House, Justice Department and Education Department examined all of the recommendations, including administration action and the legal authorities available to the administration, and ultimately crafted responses for multiple scenarios.

Inside the White House, some officials had held out hope the court would uphold Biden’s student debt program, pointing to some surprising decisions over the past weeks that saw some conservative justices joining liberals on issues of voting rights and congressional redistricting.

But even Biden acknowledged after the court’s oral arguments in February he wasn’t certain the ruling would go his way.

“I’m confident we’re on the right side of the law,” Biden told CNN in March when asked if he was confident the administration would prevail in the case. “I’m not confident of the outcome of the decision yet.”

His instinct was correct. The president was in the Oval Office on Friday morning when he was informed of the Supreme Court’s decision by his senior aides and then engaged in meetings stretching into the afternoon to fine-tune their response after the ruling was not in their favor.

Ultimately, the president directed his team to move forward with a new plan, which includes pursuing a new path for debt relief through the authorities in the Higher Education Act of 1965, which was promoted by some debt relief advocate groups and progressive lawmakers, as well as creating a temporary 12-month “on-ramp repayment” program for federal student loan borrowers when payments resume in October.

A day earlier, Biden was watching the news on television when the affirmative action decision was handed down by the court, according to an official. A team from the White House counsel’s office came to brief him on the ruling.

“In our conversations with the White House about why student debt cancelation was needed, it’s about reducing the racial wealth gap,” said Wisdom Cole, national director of the Youth & College division at the NAACP. “If the administration is committed to diversity, equity, and inclusion, they must use every tool in their toolkit. Every legal authority to ensure that we see relief happen.”

Demonstrating urgency in responding to the court’s actions was a key objective as the White House prepared for both rulings, according to people familiar with the matter.

Looming over the preparations was the impression left after last year’s Supreme Court term that the Biden administration was unprepared for the decision striking down the nationwide right to abortion, despite a leaked court opinion months ahead of time indicating the justices were prepared to overturn Roe v. Wade.

The White House has strongly denied it was caught flat-footed on abortion and has pointed to actions taken in the months after the decision to expand access, including to medication abortion.

The issue proved galvanizing to Democratic voters in November’s midterm elections and has propelled Democratic victories even in traditionally Republican districts.

Whether the court’s ruling on student debt relief and affirmative action can have a similar effect will prove critical over the coming year, as Biden works to convince voters he is still fighting to fulfill his promises. Initial reaction from progressive Democrats was positive.

“It was not a foregone conclusion that the President would act so swiftly today. But he announced an alternative path to student debt cancellation by using his Higher Education Act authority given by Congress – and that deserves praise,” said Adam Green, co-founder of the Progressive Change Institute.

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April 12, 2021