In this special episode of Legally Bond, Kim talks with Bond labor and employment and higher education attorney Peter Jones about the recent Supreme Court decision in Students for Fair Admissions, Inc. v. Harvard, which reverses a long line of decisions on whether race can be a deciding factor in admissions for higher education.
In this special episode of Legally Bond, Kim talks with Bond labor and employment and higher education attorney Peter Jones about the recent Supreme Court decision in Students for Fair Admissions, Inc. v. Harvard, which reverses a long line of decisions on whether race can be a deciding factor in admissions for higher education.
Hello and welcome to a special episode of Legally Bond, a podcast presented by the law firm Bond Schenken King. I'm your host, kim Wolf Price. From time to time, an issue comes up that requires a special episode of podcasts, and certainly US Supreme Court decisions can provide those moments for us. Today's special episode focuses on the recent Supreme Court decision in students for fair admissions incorporated versus Harvard, known casually and more informally as the affirmative action case. To help us with this, i'm happy to welcome Pete Jones back to the podcast. Pete's a member in our Syracuse office, member of our management committee and co-chair of the higher education practice group. Thanks for joining the podcast today, pete.
Speaker 2:Great to be here, Kim. I'm happy to talk.
Speaker 1:Thank you, and it's funny when I was prepping the episode with you before, we ended up like talking for a long time before and after, so I love it. So thank you very much. Great to have you here. as a labor lawyer and higher ed lawyer, you giving us this summary and sort of maybe giving people a little perspective on the case instead of just the affirmative action case, will be helpful. So thanks so much. This decision is sort of a seismic shift to the world in higher education admissions, isn't it?
Speaker 2:In a word I would say yes.
Speaker 2:This decision really reverses a long line of Supreme Court cases that have taken up the question of whether or not race can be considered in the admissions process in higher education And really dating back to a decision in 1978 involving University of California, an individual by the name of Bakke case is commonly known as the Bakke decision.
Speaker 2:There has been this balancing by the Supreme Court, the idea being that the Equal Protection Clause prohibits generally race discrimination, among other things, but that consideration of race in admissions, in particular in higher education, could be justified if certain narrow requirements strict scrutiny is what the Supreme Court calls it has been met And that question has come up subsequently in several cases and the court has basically sustained that analysis and required that the consideration be limited and then it be narrowly tailored to meet this constitutional standard, but has sanctioned the consideration of race in admissions several times since then. So this decision, i think, is aligning the sand that says we will not sanction that constitutionally anymore. The circumstances don't justify the imposition on the 14th Amendment, the Equal Protection Clause. So in a nutshell, i think that's what the decision says.
Speaker 1:Yeah, so it's very interesting. If it wasn't a special episode I'd really want to get into strict scrutiny and all of that and starved to cises and all those things. but it's a special episode so I won't nerd out totally today.
Speaker 2:I suspect our listeners can find, if they're so inclined, can find podcasts that will be discussing those very interesting and deep constitutional issues. but I agree with you Let's keep it high level here.
Speaker 1:All right, thanks. So do you want to give us just sort of the crux of the case? Students for fair admissions incorporated versus Harvard. That's the case.
Speaker 2:Yeah, and the decision involves both Harvard and there's a companion case that was decided at the same time in the same decision about the University of North Carolina, and the court majority goes through the analysis and it really goes back and talks about the Equal Protection Clause and the history of Supreme Court precedent, including the decisions that I just mentioned.
Speaker 2:But at the end of the day, the court is basically saying race discrimination is prohibited and therefore the consideration of race is also prohibited, because there's going to be winners and losers. There's this characterization in the decision of admissions is a zero sum game based upon class, size and numbers, and Justice Roberts seems to be very focused on the idea that, if you prefer in any manner, even in a manner that's designed to be helpful in remedy past discrimination, race, that some other class will be disfavored on the basis of race. And there's a lot of in depth analysis that goes along with that and argument, as is common in a Supreme Court decision. But that's really the crux of the decision. Of course we may want to talk about there's a couple of spirited dissents as well.
Speaker 1:No, i'd be happy to if you'd like to, whenever you'd like to talk about the spirited dissents. I mean, i think part of that issue is when we were talking about starting to size this and think, you know, and I mentioned that, that is sort of that. this is settled is kind of how the Supreme Court historically has operated, and so I think that might be part of the spirited dissent. And also there are issues of we aren't at a level playing field yet. I think is some of what they talked about. So the court ruled that currently, how many higher education institutions have been operating in admissions can no longer be the way they operate. Is that sort of the bottom line?
Speaker 2:I think that's a. That's a pretty short and sweet summary and inaccurate. You cannot consider race. It's hard for me to conceive of how you could consider race, even in a limited way, under the way the majority has worded this decision.
Speaker 1:Oral argument was October 31st. It was Halloween of last year, so have higher education institutions sort of been many of them at least thinking this was coming their way?
Speaker 2:I think so. I mean, you mentioned Starrie DeCises, and the current Supreme Court has ventured into a number of areas, as we're all aware, and changed long standing precedent, which is basically what Starrie DeCises is the notion that cases that are decided are deemed decided, and you need a good reason to go back and revisit those kinds of decisions, and this court has done that in several areas And so and obviously they did it here The Bakke case is 1978, so we've been operating under those principles for some 45 years. So and we are all argument in October I don't think that's uncommon for the court to take this long Right And we've had a whole bunch of decisions released recently, which is common historical pattern And, based on the way the decision is worded, i'm not sure that it's based upon any uncertainty on how the court would split. I suspect it's more just a matter of timing.
Speaker 1:That's true, and the decision to carry such weight that that's why we're used to them taking a long time. There's oral argument and then this flurry at the end of June. The bigger decisions from that oral argument period tend to come out right about now. That's pretty standard. Also, standard practice and procedures. So higher education admissions permissible, limited and constrained consideration of race in the admissions decision making process. I think about being on a campus for so long and we would talk about all the issues that we were trying to address, that being one of them. I wasn't in admissions, but certainly it was part of the team and talking about melt and the people who would leave us. So I know that right now that part of the process is effectively over for most schools. They've picked their classes and they're getting ready to welcome them next month. This seems like an issue that'll be coming up in the year to come.
Speaker 2:I think that's right, and I do think you asked the question, and you're absolutely right that college campuses. This decision has been anticipated. Some people have predicted that this would be a likely outcome with the current composition of the court, and so, yeah, i think people have been thinking about it. It does. When it does come in though this way, then now it's time to you know, act on it. And so, to your point, the campuses that have been considering race and using it in the context here of their admissions decision in a limited and cure to four permissible way, won't be able to do that, and so that will raise the question of what would you do? And you alluded to this briefly. You know there are effects of historical discrimination, there are benefits of diversity that colleges and universities have been very interested in availing themselves of, and that's the main rationales, or at least a couple of the main rationales, for these kinds of programs. So I believe people have already given some thought to what they might do. Both the dissent and the majority opinion focus a little bit on this doesn't mean that you can't consider the impact that race has had upon somebody if they've mentioned that in their essays or, you know, make it part of their experience in terms of their progression as a candidate, and so I think that some of those factors that do promote diverse outcomes diversity of viewpoint, diversity of socioeconomic background, things of that nature will that can be considered. Those are constitutionally permitted and may well be the focus.
Speaker 2:There are a number of states that have eliminated this kind of affirmative action program by statute or constitutional amendment. Most notably, california had a proposition and they have for over 25 years been operating outside the Bakke framework. Bakke was a California case And they have experienced with this, including numbers, and I've seen reports that the system has put out and also some of their ideas on how they try to promote diversity without consideration of race. I believe that you know the data that's out there suggests that the numbers are not as indicative of the general population as some institutions would like, but there are sort of a middle ground. There's a fall off in the demographics, but it is not as pronounced if you look at some of these other factors in your admissions process.
Speaker 1:And the majority did talk about that. Some considerations, such as individual personal characteristics, are not discriminatory, like overcoming personal hardship, poverty, homelessness, refugee status. They mentioned some of that is mentioned but it seems like a bit of a tightrope because they were clear right, it cannot be a proxy for consideration of race.
Speaker 2:Yeah, it's common I think it's Supreme Court jurisprudence that you get a statement that's fairly clear and then you get a bunch of questions that flow from that. So this is probably not that different than what we've seen in a lot of other cases. But you're absolutely right. Correlation, i think, is permissible in some circumstances. But if it became a proxy, i believe this court would have a problem with it, and you know obviously some of the lower courts interpreting this decision. Therein lies probably the crux of a number of future cases.
Speaker 1:Yeah, absolutely, and it's gonna be hard not to. I mean we've always called it, well, the Bakke-Rizny, like I mean, that's 45 years, if that's how it's talked about, and this is a big change. I'm thinking about it. I'm actually probably a lot of people in higher education admissions. This has been their entire life the way things have worked, so it's gonna be complicated. It's kind of an overhaul for the processes for many of these schools going into the 2024 admission cycle.
Speaker 2:Yes, absolutely. And then there's also potentially other implications on campuses as well. Financial aid, to the extent that we have scholarship programs that are targeted to benefit certain groups those are something that you'd have to take a look at as well, and even some of the broader things on campus affinity groups and support groups and things like that that. those are things that I think can be within the bounds of this decision, can be certainly permissible and defensible, but they have to be constructed carefully in terms of, i believe, allowing anybody who wants to participate to participate and having non-discrimination principles in their operating charters, and frankly, i'm not sure that is a change for some institutions and for some employers. These programs are typically open to people, but allies and friends, as well as the groups that are the subject of the affinity organization, but you do have to look at your policies and look at your websites and things of that nature to just make sure we don't have issues there. So there'll be a lot. there'll be a lot to do, i think.
Speaker 1:That's true. Student services, student affairs those groups have to start paying attention to. It's not just the admissions and financial aid. So from what you're saying, it seems like this might not be the last of litigation sort of surrounding this topic.
Speaker 2:I think that's absolutely right. We've heard that there's a currently an OCR complaint has been filed against Harvard, it's been announced on challenging legacy admissions, And so there's another angle of this that because of legacy admissions may, in order to benefit of the historically favored groups, they might be considered discriminatory as well. So really, this is, i think, a common pattern. when the Supreme Court speaks, we then try and figure out what it means, and there's oftentimes, i think, litigation associated with that.
Speaker 1:Absolutely, and it takes sometimes years, like we talked about the Bakke case, but when that came out, i'm sure for years, settling that took a long time And when you switch course it's going to take a lot of years to sort of settle in to having this be actually less litigious.
Speaker 2:You know it's interesting, kim, not to be sort of too much of a law nerd here, but we think of Bakke as being a decision And, like you said, you know it sort of set the rules. It's actually a single opinion, a single justices opinion in that case, that set up the framework, because it was a bit of a divided court at the time. And so, yeah, we talk about Bakke like it's a nine zero Supreme Court decision, but it's actually a single opinion that set the rule. And then, of course, that's expounded upon in future cases Gruder and Fisher and sort of body. And now we've got these two cases which basically reverse that line of cases.
Speaker 1:It's probably because cases like that are the ones that professors taught us in law school. So that's also why because they love the split and that they get against to figure that all out. So that's why Bakke also sticks with us, right.
Speaker 2:I have to say I was thinking about it today. It seems far more interesting to me now than it did then. Of course I was just trying to figure out you know where it all fit in. Now I'm like I know where it fits in, i know how it affects real people, our clients, and it makes it come home a lot better. I maybe I would. As you know, i one point I taught law school class on labor life. I might be a better professor today if I bore that in mind. You know, try to contextualize the decisions. I tried to, but not sure I succeeded.
Speaker 1:It is funny though it is, it is so different once you actually see how it works, as opposed to being very worried about that final exam that's coming up And you see especially something like this admissions is it's the start of the life cycle in higher ed. Right, it's how it all takes off from there. You wouldn't need student affairs and other groups if you didn't have that admissions process first. So it really is obvious, but integral to the entire process. So the US Department of Education maybe the listeners don't know this, but they might think of it as K-12, but they also provide guidance to institutions of higher ed on areas from Title IX to student aid and more. Will there be guidance on this going up to schools and universities?
Speaker 2:Yes, the Biden administration put out a fact sheet. In that fact sheet they identified a number of areas on which they intend to focus, and among them is to get guidance out within 45 days from the Department of Education. They've also indicated that they're going to have some stakeholder meetings and try to take some opinions from folks while they effectuate this process. And as a straight-up political matter, they've said they're disappointed in the decision and tend to provide some ideas on how colleges and universities and others can comply with the Supreme Court's ruling and at the same time try to achieve more diverse outcomes in their selection processes. So certainly more to come on that.
Speaker 1:Absolutely, absolutely Well. so I think the Supreme Court's decision systemic change for your industry. maybe you should call your lawyers and have a conversation.
Speaker 2:Yeah, i think that's right. I mean, of course, we always say that and there's perhaps a bit of self-interest in that, but well, in this context, yes, very true. I mean there's a lot to digest here and it's not that different than the other issues we deal with. You've got to set your organizational objectives and goals, and then you need counsel to help you understand how you can achieve those goals. You know lawfully what the compliance options are. There are institutions that have been operating within this framework by state statute for a number of years, and so there's some learning there, and there will obviously be potential challenges as an offshoot of these decisions, and so I think it's good to be in touch and think about these issues, and we will. Here at Bond, you know we'll be doing some updates as well, some roundtables and updates in our higher ed group, you know. So we'll do that in the coming weeks and months.
Speaker 1:That's great, And you know the dissents. We didn't get a chance to talk about them in this special episode, but there's so much in those that could direct what might be the next conversations as well, And the issues that some of the universities and colleges were trying to, the goals they were trying to achieve, are discussed.
Speaker 2:Yeah, and I'll just say this. It's fairly simple. I mean, the majority opinion goes through the history, including de jure discrimination, you know, discrimination that was effectively sanctioned by law and then speaks to Brown versus the Board of Education and subsequent decisions that really attempted to put that to rest, and says this is in that line of cases. We are not going to let people consider race because the consideration of race is prohibited by the 14th Amendment, the dissent both Justice Sotomayor and Justice Jackson say. You are ignoring the fact that discrimination has been and remains a problem and you can't have equality under the 14th Amendment unless you address that. And so that's the debate, and it's a simple I mean you know it's a very simple way to say it, but I think that's at the crux of those two decisions And of course they're both well written and well argued from a legal perspective from there. But that's the short summary of the difference between the two viewpoints, i think.
Speaker 1:That's true, and I think Sandra Day O'Connor may have first woman justice. I think in one of her decisions she said at some point this may no longer be needed, and I think that was sort of what many hung their hats on in this decision as well.
Speaker 2:Fair point. It's a point of emphasis in Justice Roberts's decision for Sheryl.
Speaker 1:Yeah, all right. Well, thank you so much, pete. There's going to be more, i know, with the guidance from the DOE and other things as they come out, but we appreciate you taking us through that decision and giving us some context for it. Thanks so much for joining us And please let us know when you want to come back to talk about whatever labor or higher ed issue is out there.
Speaker 2:We'll do. Thanks so much. Good to speak with you.
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