U.S. Supreme Court rules against affirmative action

[MUSIC PLAYING] TIM NELSON: And our top story of the day. Just a few hours ago, the US Supreme Court struck down affirmative action programs at Harvard and the University of North Carolina. To explain exactly what was in the ruling and what it means for the future of Minnesota students, Professor T. Anansi Wilson is here. They are the founding director of the Center for the Study of Black Life and the Law at Mitchell Hamlin School of Law in St. Paul. Professor Wilson, thanks for joining us.

T. ANANSI WILSON: Thanks for having me.

TIM NELSON: I want to take a step back here first. Why Harvard and UNC? What were they doing? What were these programs like that got them in front of the Supreme Court in the first place?

T. ANANSI WILSON: Well, I mean, the truth of the matter is they were really representative of both elite private schools and elite public schools. And so that's why this organization went after them. It seemed that, at least in the argument of the organization, that the schools' standards for admission were having a negative impact on Asian American students.

TIM NELSON: And I want to get to the point of the opinion here. Why did the court say it was trying to strike down these programs and a lot of people say affirmative action with it?

T. ANANSI WILSON: Yeah, I mean, so here's the rubric that we're looking at. Essentially the court has ruled over the last 20, 30 years that affirmative action is permissible, at least the use of race in affirmative action is permissible insofar as it is to the cause of creating a racially diverse classroom. And those classroom benefits are something that everyone in the school benefits from. They really deferred to the schools to allow this to happen.

But under Grutter, the last major Supreme Court decision we had here, they said for 25 years, it could happen. Again, something that the Constitution will allow the consideration of race in these standards forever. And so the court essentially said, look, your 25 years is up. The things that you've been doing to measure the impact of this are not really judicially measurable. And you're creating or at least using negative stereotypes of other racial groups to get to your end.

TIM NELSON: Now, the three liberal members of the court-- Kagan, Sotomayor, and Jackson-- dissented. What was their argument?

T. ANANSI WILSON: Well, I mean, Sotomayor had a really good quote, and I'll see if I can pull it up here. But essentially their argument was, look, you can't take your hands off the steering wheel and your gas off the brake off-- your foot off the gas pedal. Just because right now in this moment, you're saying we've had enough of this racism stuff, and now the time for it is over.

Sotomayor goes on to basically say that, look, you're trying to take a colorblind solution to a system, to a country that is based in racial subordination, at least has a history of it and continues to live on today. So they're really arguing that history and past is prologue. And if you want to deal with the racial subordination that happens in this country, you have to take it head on. And they're just saying that the conservative majority is really putting their head in the sand here and acting like history isn't history and that the Constitution itself is colorblind. And it's a great offense to it.

TIM NELSON: Now you mentioned this at the start here, talking about these elite institutions, public and private. East Coast universities. The New York Times says most colleges accept more than half of their applicants and don't consider race or ethnicity significantly. What could this mean for Minnesota students?

T. ANANSI WILSON: I mean, it can mean a lot. And I can't speak on behalf of either Mitchell Hamline or any of the other law schools around Minnesota because I'm sure our lawyers are viewing what's going to go on here. But I can say to you just generally speaking, it's going to be really hard for lower income folks of color. Those that are not middle class, those that are not legacy students, those that are not athletes are going to get some type of preferential treatment.

I'll note in the opinion, one of the things that they called out is when they're looking at affirmative action and one of the things that these schools use is, what is your financial aid status? Do you have a sports scholarship? Are you a legacy student? And then there's race. So they just took race out and left everything else in. So for those students that are trying to go to elite schools, that are trying to get into competitive schools, it's going to be much, much harder.

And we don't know how the schools themselves are going to respond. So we don't know if schools are going to throw their hands up in the air and say, wait a minute, we're not going to think about this racial justice situation, we're not going to worry about diversity in the classrooms. We don't want to be sued. But there are other creative ways schools can go about this. For example, they can look at the zip codes students come from. They zero in on those low income rural and inner city folks.

They can look at whether this child is not just a first generation college student, but perhaps a second generation. Because we know in today's America, second generation college students are slipping back into poverty faster than anybody else. So there are ways to get at this issue, right, that doesn't necessarily have to use race itself as an explicit thing. Even though we know using race explicitly is the most effective way to undo racial harm that is ongoing and historic today.

TIM NELSON: Now we know that some Minnesota schools like Macalaster, St. Olaf, St. Thomas, have pledged to continue diversity efforts with methods like you're talking about here. Do they work? What's available to them after this ruling? Are there things they're not trying yet?

[LAUGHS]

T. ANANSI WILSON: I'll tell you what. At least my grandmother told me, the best way to handle a problem is to hit it head on. And this court really has hamstringed schools from handling things head on. It's trying to force a colorblind solution on a color conscious or a race conscious problem. So I will say that there are a lot of things that schools can do. I love what Macalaster has been doing for a long time and thinking about doing. And there's going to be a conference next week from the American Law Schools Association thinking about, how do we work with it?

But these other solutions just aren't going to be effective. It's like trying to deal with sexism in the workplace, but you can't say the word sexism and you can't mention women or gender. It's really hard. You tie your hand up. And so that's what we're looking here is, how do you solve this problem with one hand tied behind your back and one and the other hand over your eye?

TIM NELSON: And Chief Justice Roberts made an interesting exception here for military academies, writing they have potentially distinct interests. A little footnote here. What's the argument for this?

T. ANANSI WILSON: Well, I mean, this is something that UNC brought up and so did the Solicitor General of the United States. And she was making the argument that, look, actually, in order to have a strong military, you need to have something that's racially cohesive. If we recall appropriate, I believe it was the United States military that was the first to desegregate under President Truman. Just because they knew that you actually needed folks to really buy in to this idea of patriotism and national security.

And if you don't have a diverse military, those type of stubborn racial ideologies but also ability to progress through the ranks if you're a racial minority, right, those things can be disturbed. And so he's really making a national security argument. And under constitutional law, the military is oftentimes very insulated from the rest of the constitutional regime. So national security gets a special place here. And they're able to consider these things, because again, we're not talking about the 13th or 14th Amendment per se. We're really talking about the code of the military forces.

TIM NELSON: Now you talked about Macalaster. You talked about a conference coming up next week. Are you talking to the other educators? What are you hearing from others in the field?

T. ANANSI WILSON: Yeah, well, here at the Center for the Study of Black Life and the Law, in the next week or two, we're also going to hold a virtual conference and conversation about all the things that have happened this term and how they affect Black folks and other non-Black people of color. But what I'm hearing from other folks is just fear. I used to be a high school teacher. My partner is a former high school teacher. Now works in DEI.

And I'm hearing from every level of schools, not just universities. But this attack on the DEI, the Don't Say Gay Bill, this idea that you can't teach Black history or history of other folk. Now this attack on affirmative action being made illegal, it has folks tongue-tied. And they don't know if they want to stay in their position. They don't know if they can stay in their positions and tell the truth. Or if they're having to do a type of teaching that is against their values.

So we're really at a crisis in the education system in this country, because folks aren't sure if they can legally really educate. And if they can actually access and educate the folks that need it most, because in order to get those students that are hard to reach, those rural white students that are low income farmers and stuff like that, lower income Black and Latino kids in the inner city, it takes money. And the schools that want to do the best job that are really access schools that are the first chance these folks get, the first check folks in the family get, they don't have the money to go out and do this type of recruitment.

Right, so they get hamstringed. And that's a huge, huge concern. So I know that Mitchell Hamline over the next several weeks, they're going to be having conversations about this internally. About, how do we respond to this? How do we stay true to our mission? How do we stay true to our anti-racism pledge? And also stay within the bounds of the law.

TIM NELSON: Well, thanks so much for your insight. That was Professor T. Anansi Wilson, founding director of the Center for the Study of Black Life and the Law at Mitchell Hamline School of Law in St. Paul.