Supreme Court hears arguments in cases that could end affirmative action Transcript

Two far reaching cases before the US Supreme Court today, have the potential to overturn years of precedent. The question for the justices, whether colleges should be allowed to take race into account when deciding which students to admit? John Yang has the story.

Judy, past Supreme Court decisions have said that colleges can use race as one of many factors in admissions, as long as they don't use quotas, or don't give applicants any rigid categorical benefit based solely on race. The plaintiffs in today's cases are asking the justices to rule that any consideration of race is unconstitutional. Today's oral arguments were a marathon lasting nearly five hours. And in the courtroom for all of it, Marsha Coyle, Chief Washington Correspondent for the National Law Journal. Marsha, congratulations on surviving that.

It was tough, John. Very tough.

The justices, the conservative justices, seem very skeptical on a number of points. Number one, what diversity means, how long affirmative action would have to be in place? Let's listen to Chief Justice John Roberts on that point.

I don't see how you can say that the program will ever end. Your position is that race matters because it's necessary for diversity, which is necessary for the sort of education you want. It's not going to stop mattering at some particular point. You're always going to have to look at race, because you say race matters to give us the necessary diversity.

Why is this significant?

Well, it certainly was on the minds of several of the conservative justices. It was a question that almost dominated the questioning today. When will it end? In 2003 in the Supreme Court decision upholding the use of race in the admissions policies of the University of Michigan Law School, Justice O'Connor, who wrote the majority opinion, said that she expected that in 25 years, affirmative action in higher education would no longer be needed. So that would make 2028 the deadline. And that's what's very much on the justice's minds. Is that a fixed deadline? Or as some of the advocates supporting the and representing the university's claim, it was more aspirational. So we heard, "When will it end? And how will we measure it, if you say it ends or has an end? How do you put it into words?" And the lawyer for the United States said, they really can't reduce it to a number, that it's going to depend on the benefits that have been achieved by racial diversity in the student body.

The conservative justices kept asking for numbers.

Yes, they did. They kept asking for a number. And even Justice Clarence Thomas, as you pointed out, was saying, "I keep hearing about diversity. Well, I don't have a clue what diversity means." And he pressed as well for what are the educational benefits exactly, specifically of diversity? So they gave them a real run for their money, those who were defending the affirmative action admissions policies.

The liberal justices on the other hand, seemed to be trying to make the point that race was not the only factor being considered, but one of many. This is Justice Kaentanji Brown Jackson.

You keep saying, "We object to the use of race standing alone," but as I read the record and understand their process, it's never standing alone, that it's in the context of all of the other factors. There are 40 factors about all sorts of things that the admissions office is looking at, and you haven't demonstrated or shown one situation in which all they look at is race.

And the liberal justices also made the point that the effects of affirmative action go beyond the campus.

This was very much on the minds of some of those justices like Justice Elena Kagan. She pointed out that there's been experience in other universities where when they stopped considering race, there was a precipitous drop in underrepresented minorities on campus. And that then had almost a domino effect, because you have the military wanting to recruit often from ROTCs on campus. And they have written and said that they want to build a diverse officer core as the rank and file tend to be diverse. And she also pointed out that it could affect every area, corporate America, law, medical, science, that all of these industries and institutions depend on a diverse pipeline so that they can be diverse as well.

And there was also a lot of discussion, or debate actually, over the meaning of Brown versus Board of Education, the 1954 landmark ruling that ended desegregated public schools.

It's hard to believe we're still talking about that in this day and age. The challengers to the university programs believe that Brown versus Board of Education said that all racial classifications are unconstitutional. And so this 2003 Grutter decision that the court's looking to possibly overrule, is inconsistent with brown and should be overruled. On the other hand, that view of Brown versus Board of Education is hotly contested by civil rights groups and others who say no. In fact, the US Solicitor General pointed out there's a world of difference between what the court confronted in Brown, which was the separation of children by race, and what colleges are doing here, which is not to exclude, but to try to include.

And there was also some discussion, the court now this conservative majority with their approach on originalism, how constitutional rights fit into the history and traditions in America, and how this fits in this case.

This is also an ongoing debate on the court. And Justice Kagan raised it. She asked, "Well, what would an originalist think about what the colleges are doing here in terms of the 14th Amendment?" And there is the view, and I think Justice Kagan and Justice Jackson and some of the others on the left side of the court believe that what is being done here is consistent with the history, the post ratification of the 14th Amendment, which did have race conscious legislation and activities.

Marsha Coyle, thank you very much.

Pleasure, John.

And we thank you John. And in California, we should say colleges have been prohibited from considering race in admissions since 1996. But as John reported for us recently, the University of California has worked to create a diverse student body despite the ban. You may watch that story online at pbs.org/newshour.