Why the Supreme Court Endorsed, Then Limited Affirmative Action

MUSKAAN ARSHAD: We’re here at the center of Bentonville Square. There used to be a Confederate statue housed here. I was involved in the activism and the protesting, uh, surrounding removal of the monument. It was a really fraught experience, but now it’s been gone for a couple of years and there’s a beautiful sunflower bed that’s replaced it.

NARRATION: Muskaan Arshad became a social activist due to her own challenges growing up Asian American in Arkansas. So in 2021, when she applied to college, she decided to write about how race had often defined her experiences.

MUSKAAN ARSHAD: When I was growing up, there was always this inherent feeling that being brown, being Indian, wasn’t good enough. I think the youngest time I experienced that was when I was in class, and we were doing, like, an activity that involved everyone holding hands. And, just, no one would touch me. Just being, like, 7 years old, and hearing and seeing your peers, like, not be able to touch you just because of your skin color, and thinking you’re just inherently dirty in some way, that was just an extremely hurtful moment, and I think, just, was the first instance of many that really cemented the fact that being brown, being Indian, being Asian American wasn’t an accepted thing. My race was just essential in every part of my application, of who I am. Without mentioning my race and how it was part of my life, I don’t think I could have painted a full picture of who I was, and maybe not even gotten into Harvard.

NARRATION: It’s the kind of history that universities like Harvard have long given special attention to in order to promote a diverse student body. Supreme Court decisions dating back to the 1970s solidified the idea that race can be explicitly considered as a factor in college admissions in order to promote diversity.

But that changed in June of 2023.

ARCHIVAL (CBS, EVENING NEWS, 6-29-23):
LESTER HOLT: Today’s Supreme Court decision delivering a blow to affirmative action policies. A sharply divided court scrapping decades of precedent, striking down race-based admissions programs at Harvard and the University of North Carolina, ruling their efforts to create racially diverse campuses are unconstitutional.

NARRATION: The man behind these Supreme Court cases is Edward Blum, who spent decades seeding lawsuits to challenge affirmative action practices.

EDWARD BLUM: Kids check which race they belong to, and then they’re judged either affirmatively or negatively by competitive admissions offices based upon the box they check. That is inherently unfair. That is inherently polarizing and inherently illegal and unconstitutional.

NARRATION: Blum lost an earlier case in which he represented a white student who challenged affirmative action at the University of Texas. But his 2014 lawsuits against Harvard and the University of North Carolina, Chapel Hill, drew attention for a more unusual argument: that elite universities were using affirmative action policies to discriminate against one minority group — Asian Americans.

ARCHIVAL (2018):
EDWARD BLUM: Harvard systematically raises the bar for Asian Americans and systematically lowers it for whites, African Americans and Hispanics. We allege that Harvard has a quota.

NARRATION: That possibility long worried some in the Asian American community, but it was one student’s fight that made it front-page news, attracting Blum to the cause.

ARCHIVAL (CBS, 8-6-17):
NEWS ANCHOR: Michael Wang did everything he could to get into Harvard.
MICHAEL WANG: Which, I actually sang Obama’s Inauguration, multiple speech and debate awards, piano competitions.
NEWS ANCHOR: But in 2013, the California high school student was rejected by his dream school, even, as he says, students with lower grades got in.

MICHAEL WANG:I spent middle school, high school, really grinding away, taking as many AP classes as I could, participating in as many extracurriculars as humanly possible, really just trying to put together the best resume for these Ivy leagues and all these top-tier institutions. Ultimately when I got my decisions, you know, they weren’t what I expected. So I wrote to their admissions offices by email and asked them, can you tell me how you utilize race as a factor of admission? All I wanted to see was, you know, is me being Asian American something that disadvantaged me on my application, and the answers I received back from those admissions offices were unsatisfactory, and so that’s where, you know, in 2013 I decided to file my three complaints, and that’s how I got started on this whole road.

NARRATION: While the U.S. Department of Education ultimately decided not to act on Michael Wang’s complaints, in 2014, Blum began to seek out Asian American students to bring a lawsuit.

ARCHIVAL (CNN, 6-16-18):
NEWS REPORT: The lawsuit against Harvard University for discriminating against Asian American applicants just took a new twist with claims that the bias against them is a, quote, personal thing, including such traits as positive personality, likability and attractive to be with.

ARCHIVAL (FOX, 12-18-17):
EDWARD BLUM: You cannot remedy past discrimination with new discrimination.

NARRATION: The cases deeply divided the Asian American community.

ARCHIVAL (2018):
NEWS REPORT: We are united today to protect opportunity. Blum’s lawsuit is racist in its effort to whitewash history.

ARCHIVAL:
MICHAEL WANG: We’re still a minority at the end of the day. Asians have been discriminated against. I would hope that as a minority and as an Asian American, we’re not the ones losing out.

NARRATION: But Blum’s lawsuits also reopened the larger debate, one that the Supreme Court famously grappled with in 2003, in a case called Grutter v. Bollinger.

ARCHIVAL (CBS, 4-2-03):
NEWS REPORT: For the first time since the 70s, the Supreme Court today took affirmative action in education dead on. Can race be a factor in college admissions, period. Two white females say the University of Michigan denied them admission using tough standards for whites.

ARCHIVAL (CBS, 12-2-02):
BARBARA GRUTTER: They say things like, we’re selective, but they’re making selections on racial lines.

ARCHIVAL (NBC, 6-6-03):
NEWS REPORT: I think that the University of Michigan is using a preference that is based solely on skin color. And that is wrong.

ARCHIVAL (NBC, 12-19-03):
NEWS REPORT: A position shared by more than two-thirds of Americans, according to a Newsweek poll. Sixty-eight percent said they opposed racial preferences in college admissions for Blacks. Seventy percent said they opposed preferences for Hispanics.

LINDA GREENHOUSE (FORMER NEW YORK TIMES SUPREME COURT CORRESPONDENT): Those who were challenging the affirmative action program were arguing that there was something deeply offensive about counting and sorting people by race. On the other side, of course, was, look, it’s been working; without it, we’d be back to where we were. So, these are two profoundly different ways of looking at the problem, and, it came at a very important moment in the court’s own evolution.

NARRATION: At the center of that court was a conservative former politician who had overcome discrimination to become its first female justice, but struggled with the question of affirmative action.

Her name was Sandra Day O’Connor.

LINDA GREENHOUSE: People paid a lot of attention because these issues of race really touched, uh, deep cords in the American fabric. One issue with affirmative action is that, um, somebody gets a benefit on the basis of race. That means that, if it’s a zero-sum game, somebody, because of their race, didn’t get that benefit. And, that really bothered her. I think she very deeply grappled with the issue that was presented in Grutter, and the deeper issue about the role of race in American life and American law.

CRISTINA RODRIGUEZ (FORMER O’CONNOR LAW CLERK):We knew from the very beginning that whatever she thought the conclusion should be, we weren’t going to sway her from that, but she was someone who, in the difficult cases, was open to debate and compromise.

NARRATION: That desire for compromise was helped along by two unusual briefs.

CRISTINA RODRIGUEZ: One from the military emphasizing why affirmative action in the academies is important to producing diverse leadership, and then one from Fortune 500 companies that emphasized why having diverse institutions is important in populating the workforce with people who’ve had the experience of interacting with those who are not necessarily like themselves.

LINDA GREENHOUSE: The arguments made sense to her as a reflection of the America that she knew, and that she had watched from this perch as a Supreme Court Justice, and so she came up with her very modulated response.

ARCHIVAL:
SANDRA DAY O’CONNOR: Student body diversity is a compelling state interest that can justify a narrowly tailored use of race in admission.

LINDA GREENHOUSE: Yes, there’s room for a limited kind of affirmative action in higher education that doesn’t have a fixed quota, that takes a look at each applicant as an individual. So the decision in Grutter kept affirmative action alive.

NARRATION: O’Connor’s ruling was important because it upheld the use of affirmative action to racially diversify universities and because it affirmed a broad rationale: doing so was good for the country.

CRISTINA RODRIGUEZ: I think that she felt like the cost to the country would be too great in striking it down, but that it was also a divisive remedy, that it was incumbent on those in a position to do something about the disparities in educational achievement and access that make affirmative action necessary to address those underlying problems.

NARRATION: Her ruling also contained a ticking time bomb.

LINDA GREENHOUSE: She did something very unusual in the opinion. She said, basically, we expect that 25 years from now American society would work this problem out, and it won’t need us anymore. It won’t need affirmative action anymore.

ARCHIVAL (NBC,6-29-23):
CROWD CHANTING: Diversity begins with me!
REPORTER: A landmark decision from a bitterly divided Supreme Court.

NARRATION: The lawsuits brought by Blum’s group, Students for Fair Admissions, highlighted disparities in the treatment of Asian American college applicants. But they also sought what Blum had long been advocating.

LINDA GREENHOUSE: The whole Asian issue was just a stalking horse. What it’s really about is a university may not consider race, full stop. And it, the whole thing was an effort to get that question before this Supreme Court, and it has succeeded.

EDWARD BLUM: It's humbling to know that in some small way, I was able to help get these very important issues before the U.S. Supreme Court.

NARRATION: While satisfied that the Supreme Court validated his concern, Wang says he’s now worried by what may come next.

MICHAEL WANG: I think I may have set in motion things that might have been out of control. Affirmative action is still very necessary in helping minorities who actually do need it. Maybe there’s this one problem with implementation. That doesn’t mean that we toss affirmative action out the door. There is a middle ground.

NARRATION: Many of the nation’s universities say the ruling will not stop their efforts to diversify their student bodies, but they may face an increase in litigation over their implementation.

California’s experience in the 1990s and early 2000s shows how difficult achieving this goal may become.

LINDA GREENHOUSE: When there was a proposition that barred the use of race in admissions, African American representation in the class plummeted, and so that was kind of a controlled experiment. It's possible that these justices could basically hamstring, um, you know, all of American education.

NARRATION: For student activists like Muskaan, the importance of finding a way to keep diversity alive in higher education is clear.

MUSKAAN ARSHAD: I think a quote that really sticks with me is that no racial group has a monopoly on talent or intelligence, but certain students do have a monopoly on opportunity. And I think race-conscious admissions really takes that into account. We’re trying to pretend we’re in a society where race doesn’t matter, where everything is race blind, and everything is equitable, when these systemic issues are still right underneath, but we just aren’t addressing that.

(END)