How the Supreme Court's affirmative action decision could reverberate beyond campus and race
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Legal experts and everyday Americans are still sorting through what this week’s U.S. Supreme Court decisions on affirmative action, gay rights and student loan forgiveness mean for the country now and in the future. And that includes Marshall Tanick. The Minneapolis employment law attorney argues that Thursday's decision on affirmative action could have implications that go beyond college campuses.
He joined All Things Considered Friday to talk about it. Hear the conversation using the audio player above, or read a transcript of it below. Both have been edited for clarity and length.
The Supreme Court ruled that race conscious admissions violate the Equal Protection Clause of the 14th Amendment. It says race can't factor into admissions, though schools may consider stories of racial adversity in essays, for example. What broader implications do you see here?
You're going to see this decision applied in many cases, including especially — but not only —employment law cases dealing with diversity, equity and inclusion programs, preferential treatment for hiring, promotions, training, the whole nine yards.
The organization that funded this case said they're going to bring other cases too. They want to dismantle any kind of affirmative action or racial preference and more. The other shoe that's going to fall here is that the organization that brought the case will receive probably in the range of $100 million [from the defendants, Harvard University and the University of North Carolina]. And that $100 million is going to fuel more cases. They're not going to just use that for a victory party.
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We heard a piece from Nina Totenberg yesterday, and in it, she mentioned efforts to diversify police forces and requirements to consider applicants of color and searches for NFL coaches. What's at stake here?
Exactly that. This decision can and probably will be used to battle and confront those kinds of protocols. This decision is going to be used, cited, relied upon and argued by lawyers in all kinds of contexts.
For instance, someone asked me what this will do to reparations. St. Paul just set up a committee to study reparations. The Bush Foundation has announced a program for reparations. And my response to what does this do to reparations is: forget about it.
And it's not just race. Gender plays a role here, too. Programs seeking to give women advances in technology, in the business community and service on boards of directors are also going to fall prey to the same argument.
The Supreme Court is the Supreme Court. That's kind of where the buck stops. But is there a possibility to challenge or counter this decision in the future?
Where the counters will come in is the subsequent litigation, in which the lawyers will try to distinguish their affirmative action case from other cases and say: ‘Well, this program is a little bit different, or these particular protocols are not solely based on race.’ So lawyers will try to get around it, and they'll try to look for loopholes and little crevices. The law may change that way. It's incremental.
You've also written about the student loan forgiveness case that was decided today. You wrote about how the justices discussed the idea of fairness during oral arguments. Tell me more about that and whether you see any similarities with this case on affirmative action.
Yeah, I think they're almost identical in terms of the reasoning and mindset of the decision makers. It was peculiar for the judges to talk about fairness in the student loan case because fairness is not supposed to be a legal consideration. We all want to be fair, but how do you make the decision based on fairness, when what's fair to one person may not be fair to somebody else? And Justice Roberts weighed in there. He said: ‘How can you make this distinction between this person who has a student loan versus this person? This amount versus another amount?’ Legislators and legislative decisions and executive orders often make distinctions based on certain categories. The tax code itself has different categories. You pay different taxes at different levels. But Justice Alito was suggesting everything has to be the same for everybody and if it's not exactly the same for everybody, it's unfair to everybody.