Missing in Affirmative Action | Crooked Media
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June 29, 2023
What A Day
Missing in Affirmative Action

In This Episode

  • On Thursday, the Supreme Court struck down affirmative action in college admissions. In a decision along ideological lines, the high court ruled that race-based affirmative action programs violate the Constitution’s equal protection clause, and that American colleges and universities can no longer take race into consideration for admissions. We’re joined by Jay Willis, editor-in-chief of Balls and Strikes, to talk about this decision and its consequences.
  • And in headlines: the Supreme Court expanded protections for workers’ religious accommodations, TikTok is funding the lawsuit in Montana against the company’s statewide ban, and federal judges in Kentucky and Tennessee temporarily halted parts of transgender youth care bans.


Show Notes:



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Tre’vell Anderson: It’s Friday, June 30th. I’m Tre’vell Anderson. 


Priyanka Aribindi: And I’m Priyanka Aribindi and this is What A Day where we are grieving the end of pride month. 


Tre’vell Anderson: Yes, largely because it means that we have to deal with straight people again. 


Priyanka Aribindi: Yeah, I uh do not claim any of them. They are not my people. I’m sorry. Don’t know her. [laughter] [music break]


Tre’vell Anderson: On today’s show, the Supreme Court expanded protections for workers’ religious accommodations. Plus, TikTok is funding the lawsuit in Montana against the company’s statewide ban. 


Priyanka Aribindi: But first, yesterday, the Supreme Court struck down affirmative action programs at the University of North Carolina and at Harvard. The court ruled that race based affirmative action programs violate the Constitution’s equal protection clause and that American colleges and universities can no longer take race into consideration for admissions, upending a longstanding precedent designed to help disadvantaged Black and Latino students seeking higher education. 


Tre’vell Anderson: Two quick things on this. I find it very rich that one of the men leading the charge here is a man who benefited from affirmative action, but now seemingly believes that it’s not necessary. I’m not saying his name. And then two, make sure you read Justice Ketanji Brown Jackson’s dissent– 


Priyanka Aribindi: Yes! 


Tre’vell Anderson: –because it is wonderful and amazing. 


Priyanka Aribindi: Yeah, it really is. Everything and more. We’ll get into that very shortly. But this landmark decision will almost certainly result in less diverse student bodies at selective universities. It’s predicted that this will lead to a significant drop in the enrollment of Black and Latino students at these institutions and that their student bodies will become whiter and more Asian as a result. To dig into this decision, its consequences, and how this in some ways is just the start. I spoke earlier with Jay Willis. He is the editor in chief of Balls and Strikes, a website covering the Supreme Court through a progressive lens. I started by asking him to recap the cases in this ruling and the arguments that were made before the court earlier this year. 


Jay Willis: The case really is two consolidated cases about the affirmative action programs in use at Harvard and at the University of North Carolina. Quick refresher, the status quo is that schools, when trying to put together diverse student bodies, they can’t use numerical quotas, but they can consider an applicant’s race as sort of a soft factor or a plus factor when making admissions decisions. So today’s case was about the legality of processes like those which are in use at colleges and universities across the country. And in a 6 to 3 opinion, the answer is no, we cannot do that anymore. 


Priyanka Aribindi: Can you talk a little bit about, like the actors here and like who is bringing this to the court? Because I think that is such an interesting part of what’s happening here. 


Jay Willis: The folks bringing this case operate under the anodyne sounding name of Students for Fair Admissions. This is not just some sort of group of, you know, students who had an earnest, good faith dispute about the legality and policy merits of affirmative action. Behind Students for Fair Admissions is this guy named Ed Blum. He is, I believe, a retired stockbroker from Texas. And his sort of retirement project is basically litigating cases about issues that make National Review writers upset. He was behind the challenge to the Voting Rights Act, Shelby County v Holder. And then he’s also sort of part of this cottage industry of these like astroturf groups that are really backed by conservative activists, conservative donor money that challenge affirmative action policies. You may have heard of Abigail Fisher and the litigation Fisher v Texas in 2013 and 2016. He was behind that challenge to affirmative action, and he lost. This time he won. 


Priyanka Aribindi: Got it. Okay, so let’s get into it. What was your reaction when this decision came out? 


Jay Willis: I was certainly expecting it. Affirmative action has already been significantly hollowed out by the Supreme Court to the point where it’s almost a little bit analogous to what the Republican justices have done with the Voting Rights Act. Right. They haven’t struck it down or declared it unconstitutional, but they have sort of whittled away at it to the point where it’s a law on the books, but it’s pretty much meaningless. Affirmative action as it exists today is it’s in one of its weaker forms, which is not to say, of course, that it’s unimportant. It’s just to say that conservative activists have been working at this long enough that today is kind of the death nail, if you will. Basically, John Roberts’ majority opinion, it doesn’t expressly overrule the precedents that permit affirmative action, but it closes off pretty much every meaningful method of doing so, of taking race into account in the admissions process. So like the simplest and easiest way to understand this is that affirmative action in higher education as we know it is over. And in my view, higher education is about to get a lot worse because of it. 


Priyanka Aribindi: Right. I mean, you mentioned those practical impacts. We haven’t even gotten into that yet. But I’d love for you to, you know, break that down for us. How is this decision going to change the landscape of higher education? 


Jay Willis: So in a lot of Supreme Court cases, right, there’s a lot of immediate speculation about what it could mean. And this is one where we don’t have to speculate about the impact. Nine states have already banned affirmative action at the state level, and the results have been pretty grim about what you’d expect. So after California banned affirmative action in 1996 at UCLA and Berkeley, Black and Hispanic enrollment fell by about 50% before Michigan banned affirmative action in 2006, Black enrollment at the University of Michigan was about 7%. As of 2021, it was at about 4%. There’s a Washington Post analysis out today that shows that students of color are consistently underrepresented in schools in states that have already banned affirmative action. That’s going to happen everywhere now. 


Priyanka Aribindi: Another thing that I think people have been mentioning, admissions preferences, they aren’t all gone. I mean, they still exist for legacy students, donors, to people whose family members are employees of the schools who get special recommendations. All of that is still allowed. So it kind of feels like there is still affirmative action in a way, it’s just for wealthy white people. Am I right in thinking that? 


Jay Willis: That’s exactly right. The phrase affirmative action is often just sort of used as like a smear by conservatives. And what they mean is admissions preferences for underrepresented minority students. A 2019 study at Harvard College found that 43% of white students at Harvard fit into one of those three buckets. The court’s ruling today does nothing about these processes. When people talk about qualifications to get into school, they’re usually talking about test scores and GPA. Right? The numerical indicators that are supposedly the best metrics for who is going to be the best admit. Using qualifications in that sense, white kids who are mad at their rejections from Harvard are in many cases likelier to have lost out to a legacy admit than a person of color. This is not something that ever comes up in conservative’s discussions of the topic, but it’s true, and it will continue to remain true after today. 


Priyanka Aribindi: Yeah, very conveniently omitted from the narrative there. But I mean, as expected, the ruling in the UNC case was six – three and six to two in the Harvard case. Chief Justice John Roberts wrote the opinion on behalf of the conservative majority Justice Ketanji Brown Jackson recused herself in the Harvard case, which is why the ruling was 6 to 2 rather than six three in that. But she did write a scathing dissent of the decision. I would like to discuss that a little bit. You know, can you explain what she wrote and whether or not it has impact despite her not officially weighing in on that part of the court’s decision? 


Jay Willis: Sure. What Roberts says is that consideration of race is allowed in an individual context. I’ll quote here, “Students must be treated based on his or her experiences as an individual, not on the basis of race.” In theory, this allowed students to talk about race in, for example, their admissions essays. But then there’s another part of the majority opinion that says that universities may not simply establish through applications essays or other means the regime we hold unlawful today. So if you’re keeping track at home, if I’m an admissions officer and I can’t use quotas, and I can’t use race as a plus factor, and there’s some kind of vague, ominous warning from the Supreme Court’s latest affirmative action opinion about gleaning information about race from admissions essays. What’s left for me? Like your guess is as good as mine. The practical implication of this is that lawyers for aggrieved white kids are going to continue to bring challenges to admissions policies if they feel like it must have been unfair. They’re going to argue that the school crossed a line that Roberts and company purposefully didn’t make clear, and then giving judges like Roberts more opportunities to declare that the school went too far. Now, this is where Justice Jackson’s dissent comes in. This is the sort of individual context. This is not how racism works. She has a great line in there where she talks about how deeming race irrelevant in law does not make it so in life. Racism doesn’t necessarily manifest itself in like individual discrete acts of animus against specific people at specific points in time. Roberts’ approach doesn’t account for generations of redlining and housing discrimination that have caused de facto housing segregation, causing Black people to live in areas with underfunded schools. There’s no single act of racism that leads to the lack of generational wealth among Black families emanating from slavery, involuntary servitude, and Jim Crow laws. It doesn’t account for any of this. It forces students to come up with specific reasons that they were affected by racism. To distill, like the entire concept, you know, hundreds of years of racism in this country into a two page admissions essay and hope that like it’s to the satisfaction of someone like John Roberts, it’s an impossible burden to put on a 17 year old kid who is applying to college. Which is exactly the point. 


Priyanka Aribindi: Yesterday’s ruling is very specific to colleges and universities. But is it possible that, you know, this case gets used by other people who might want to do away with similar practices, say, in like hiring and employment? Like do you see this extending to other parts of our world? 


Jay Willis: Yeah. Conservatives have long opposed affirmative action in all of the context in which it’s used. I think among the reasons the Supreme Court is so obsessed with it in the higher education context is that it has like very particular salience to their lives. They all went to fancy schools. All of their kids go to fancy schools. If one of their friend’s kids has to go to Brown because they didn’t get into Harvard, they’re going to hear about it at the next cocktail party. But conservatives also staunchly oppose affirmative action programs, DEI programs in hiring. The logic of an opinion like this one will absolutely start appearing in amicus briefs before the court, urging the court to sort of pare back affirmative action policies in the employment context. I think we will see more challenges like that in the not so distant future. So, yes, as bad as today’s decision is, it is almost certainly the beginning of a more sustained attack on the idea of multiracial democracy and living in a diverse society. Not the end of it. 


Priyanka Aribindi: That was my conversation with Jay Willis, the editor in chief of Balls and Strikes. We will link to his website in our show notes. More on all of this very soon. But that is the latest for now. We’ll be back after some ads. [music break] 




Tre’vell Anderson: Let’s get to some headlines. 


[sung] Headlines 


Tre’vell Anderson: In more Supreme Court news, the high court yesterday expanded protections for workers’ religious accommodations. In a unanimous nine to zero decision, the court ruled in favor of a Christian postal worker who sued USPS for religious discrimination after being disciplined for refusing to work on Sundays. In Thursday’s decision, justices clarified that employers must cite more than minimal or de minimis costs to the business when denying requests for religious accommodations. Justice Samuel Alito, who authored the court’s opinion, wrote, quote, “We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” The case, Groff V DeJoy now heads back to the lower courts. 


Priyanka Aribindi: The former school resource officer who failed to act during the 2018 Parkland, Florida, school shooting, was found not guilty on all counts of felony child neglect and other crimes on Thursday. At the time, Scot Peterson was a Broward County Sheriff’s deputy at Marjory Stoneman Douglas High School, and he fled the scene instead of trying to interfere with the active shooter. Peterson’s behavior that day was heavily criticized by both the Parkland community and fellow police officers. 17 people were killed and 17 others wounded in the massacre that is still considered one of the deadliest high school shootings to this day. Peterson’s trial is believed to be the first trial in U.S. history against a police officer for their response to a mass shooting. And its outcome comes as families across the country continue to grapple with gun violence, particularly when it comes to the role of safety officers and police on campuses. Peterson was acquitted of seven counts of child neglect, three counts of culpable negligence and one count of perjury. 


Tre’vell Anderson: Now on to some interesting news. TikTok is financing the lawsuit against Montana’s statewide ban of the app. The news came earlier this week revealing that the app is funding the case brought by five TikTokers. They filed the suit last month after Montana Governor Greg Gianforte signed a bill that would ban the app in Montana starting on January 1st of next year. When defending his decision, Gianforte cited concerns about private user data being exposed to the Beijing government. But the plaintiffs argued that the ban violates their First Amendment rights. Since the lawsuit began, TikTok has been deflecting questions about their involvement in the case. But TikTok’s involvement doesn’t come as much of a surprise because this is not the first time something like this has happened. In 2020, TikTok covertly funded a lawsuit brought on by TikTok influencers after Trump signed an executive order barring TikTok from operating in the United States. The challenge to the ban was obviously successful, since TikTok is still allowed in the country. And we’ll be keeping an eye out for how this case progresses. 


Priyanka Aribindi: Yeah, some seriously deep pockets over there at TikTok apparently. 


Tre’vell Anderson: Mm hmm. 


Priyanka Aribindi: Federal judges in Kentucky and Tennessee on Wednesday temporarily halted parts of state laws that would have stopped transgender miners from receiving hormone therapy and puberty blockers. The state’s ruling came right before the statutes were set to go into effect. In the Kentucky case, seven families with trans children filed the lawsuit. The U.S. district judge wrote that the children would be harmed if the law were to take effect, writing that the puberty and hormone blockers are, quote, “medically appropriate and necessary for some transgender children.” This comes after the Republican controlled legislature overrode Kentucky’s Democratic governors veto of the law. Similarly, the U.S. district judge in Tennessee wrote that, quote, “If Tennessee wishes to regulate access to certain medical procedures, it must do so in a manner that does not infringe on the rights conferred by the United States Constitution.” Where is Juanita? We need a period. 


Tre’vell Anderson: Mm hmm period 


Priyanka Aribindi: Right now. [laughing] 


Tre’vell Anderson: Yes. [laughing]


Priyanka Aribindi: This blocking of bans on gender affirming care is a pattern that we’ve been seeing happening in federal courts in Arkansas, Alabama, Florida and Indiana. But it’s clear that the fight is nowhere near finished. 


Tre’vell Anderson: Absolutely. Great wins to have, especially in this ongoing fight. We’ve talked about the anti LGBTQ legislation that’s continuing throughout this country. So great to have these wins, but absolutely, let’s not get too comfortable because we’ve got to keep on going. 


Priyanka Aribindi: Definitely. 


Tre’vell Anderson: And those are the headlines. 




Tre’vell Anderson: That is all for today. Make sure to check your feed tomorrow for a special WAD episode commemorating the Stonewall riots. And we’ll be back with a new episode on Wednesday, July 5th. If you like the show, make sure you subscribe, Leave a review. Tune into our Pride special and tell your friends to listen. 


Priyanka Aribindi: And if you’re into reading and not just how Montana plans to ban TikTok like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Priyanka Aribindi.


Tre’vell Anderson: I’m Tre’vell Anderson. 


[spoken together] And get it together SCOTUS.


Priyanka Aribindi: They don’t need to get it together. They need to get out of my life. Please stop doing this stuff. 


Tre’vell Anderson: Absolutely. 


Priyanka Aribindi: I don’t I don’t have faith in you to get it together. Just please crawl back into your hole. 


Tre’vell Anderson: I’m down with that. 


Priyanka Aribindi: Except Justice Jackson. She can stay. [laughter]


Tre’vell Anderson: Sotomayor, too. We’ll keep her, too, you know. 


Priyanka Aribindi: Yeah, the court’s liberals, they’re good. [laughter] [music break]


Tre’vell Anderson: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our show’s producer is Itxy Quintanilla. Raven Yamamoto and Natalie Bettendorf are our associate producers. Our intern is Ryan Cochran, and our senior producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka.