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Brian Lehrer: Brian Lehrer on WNYC, and now we continue on our election series 30 Issues in 30 Days. We're in a run of eight days in a row on racial justice issues in this election year. Today it's Affirmative Action. Now, the Trump administration has active lawsuits, maybe you didn't know this, against both Harvard and Yale right now, accusing them of discrimination and admissions against white and Asian applicants.

For them, nearly 400 years of exclusion based on race can't be corrected by even one year of taking race into account for inclusion. That's the Trump administration's position. In one of the most interesting votes taking place this fall, but not getting much national attention with the presidential race being so intense, voters in California have a referendum to decide on that would bring back Affirmative Action for public colleges and contracts, and hiring a referendum known as Proposition 209 banned Affirmative Action back in 1996.

Let's talk about Harvard, Yale, state schools in California, and more with Erwin Chemerinsky. He is the Dean of the UC Berkeley School of Law. He's a scholar of constitutional law and has argued before the US Supreme Court at least half a dozen times, including one case he argued before the court just last time. Moving from the membership drive partner seat to the guest seat, which is the same seat in her living room or wherever his studio is at home, is WNYC senior editor for race and justice, Jamie Floyd. Hi again, Jamie and Professor Chemerinsky. Thank you so much for joining us.

Professor Chemerinsky: My pleasure.

Brian: Jamie, start with some context. Trump administration has a civil rights lawsuit against Yale, and their view, civil rights demand not opening the doors to historically discriminated against Black-Americans by taking race into account. Can you explain the rationale?

Jamie Floyd: Well, I can try. The Trump administration filed this latest suit against Yale earlier this month. They're accusing the University of violating federal civil rights laws by discriminating against applicants based on race. They're focused on the years 2000 to 2017. The Justice Department filed suit in Connecticut federal court claiming that Yale's admissions process relies on, and I'm now quoting from the complaint, " Oversized standard list intentional use of race that favors Black and Hispanic applicants at the expense of their Asian and white counterparts instead of using race in a narrow, time-limited and targeted manner to achieve specific and defined educational goals".

The complaint goes on to say, Brian, that Yale has institutionalized this use of racial preferences as a permanent feature of its admissions process and decisions. For its part, Yale defends the schools use of race as, "One element and a multi-stage examination of applicants as a way to create a diverse student body." Brian, that's a very summary explanation of what I would say is the most drastic action the Trump administration has taken to combat the use of race in university admissions today. Those two perspectives really underscore the traditional Affirmative Action debate, even as you look at US Supreme Court jurisprudence.

Brian: Before we bring in Dean Chemerinsky and hear about this vote that's going to take place in California, why isn't this settled law by now? You as a lawyer, and somebody who has come on the show many, many times talking about the law and Supreme Court cases, you might know the answer to this one. I do not. That is why isn't this settled law by now, after decades of these kinds of cases at the Supreme Court, University of Texas, University of Michigan, others what's been established, and what's left to litigate after all these cases?

Jamie: Well, there's also a Harvard case kicking around the first circuit, which we can talk more about. It looks a lot like the Yale case. Affirmative Action began with an executive order signed by President Kennedy Executive Order 10925 back in 1961. That was mostly in the employment context, but we mostly think of it in terms of Supreme Court jurisprudence and the educational context. I really think I should kick it over to Dean Chemerinsky, the US Supreme Court as weighed in on Affirmative Action in college admission several times helping shape the policy through the decades, and Erwin Chemerinsky can really breathe some life into this area of jurisprudence for us, Brian.

Brian: Dean Chemerinsky, I think you're teed up, take it away.

Dean Chemerinsky: In 1978, the Supreme Court said that colleges and universities can use race as one factor in admissions decisions to benefit minorities. The court reaffirmed that in 2003, the court did so again in 2016, but the composition of the Supreme Court has changed since 2016. Many think with the new additions to the court, they're ready to reconsider that.

Brian: Dean Chemerinsky, take us to California. Now, first, remind us of the California history here, what was happening in 1996, that Prop 209 got voted on that year?

Dean Chemerinsky: The key to remember is that the United States Constitution allows states to engage in Affirmative Action. It doesn't require states to do so. If a state wants to, it can prohibit its own government and local governments from engaging in Affirmative Action. The Regents of the University of California decided to ban Affirmative Action. Then it went to a ballot measure, and in 1996, as she said, Prop 209 provides that the state and local governments in education, contracting, employment, can't engage in discrimination or give preferences based on race or gender.

Brian: Why did it win? Who believed what at the time?

Dean Chemerinsky: Affirmative Action has always been very divisive in society. On the one hand, there are those who deeply believe that government should always be colorblind, that Affirmative Action is a form of race discrimination. On the other side, there are those who believe that given the long history of discrimination, discrimination that continues to this day, the only way to have equality is to be race-conscious, that diversity in the classroom, diversity in the workplace, are compelling interest and require taking race into account.

Brian: You're a legal analyst, not a political analyst, but why is this being revisited in a repeal referendum this year? Did getting it on the ballot for 2020 predate the pandemic, and this year's protest movement, or is it more a function of them?

Dean Chemerinsky: It predates the pandemic. There's been an effort to try to get Prop 209 repealed for many years. I think that this year with a democratic-controlled state legislature, it was thought that they would be willing to put on the ballot the initiative repeal Prop 209. Indeed, the legislature did that. I think it's just opponents of Prop 209 think the time is right, given the attitudes in California to get this initiative repealed.

Brian: Jamie, when we talk about Affirmative Action, in the modern context, do the plaintiffs make their cases differently on behalf of Asian-American applicants who are also people of color and also immigrant families, or from immigrant families working their way up, as compared to the case made on behalf of whites, who we can say have always had official and unofficial privilege in this country?

Jamie: Well, that's an excellent question. First, while it's true that the suit filed in the Harvard case was filed on behalf of Asian students. Edward Bloom, the conservative legal strategist, also lead the case for Abigail Fisher, she was the white woman who sued in that most recent case that Dean Chemerinsky mentioned. A cynic, a legal cynic might detect legal strategy there. I would let Dean Chemerinsky speak to the different legal postures of the plaintiffs from case to case, but to your point, Brian, I think it's important.

We found this in our reporting, to point out that Asian-Americans don't agree, they are not a monolith about what the outcome of any of these cases should be, the Harvard one specifically, or any of the others, much less how they feel on the Affirmative Action issue. While Asian-Americans certainly do face discrimination in the United States, experts, one in particular that I recently spoke with, Janelle Wong, an Asian-American studies professor at the University of Maryland, says there is very little empirical evidence of discrimination against Asian-Americans in university admissions. They don't all agree on whether Affirmative Action is a policy that they should be attacking in the courts and whether Asian-Americans should be bringing these kinds of cases.

Brian: Dean Chemerinsky, I know you got to go in a minute, but with 25 years of experience in California with Prop 209, is it possible to say what the effects have been on actual admissions and on actual inequality in a larger sense in the state of California?

Dean Chemerinsky: Prop 209 had a devastating effect on diversity in the classroom. This is true of the University of California system. It took from 1996 to 2016 for UCLA to get back to where it was with regard to African-American in Latinx admissions. There's been a tremendous decrease in contracting for minority businesses as a result of Prop 209. That's what the supporters of the new initiative Prop 16 are arguing, but if we really want to achieve diversity, especially this moment of a national reckoning about race, we need to repeal Prop 209.

The great irony, though, is that Prop 209 might very well be repealed, California would be allowed to engage in Affirmative Action, but the Supreme Court then soon could prohibit it.

Brian Lehrer: Erwin Chemerinsky is the Dean of the UC Berkeley law school. He has argued before the US Supreme Court, at least, half a dozen times. Thank you very much, Dean Chemerinsky, for joining us today. Jamie, before we wrap this up with us, I also see Princeton has taken the step of admitting past racism in its history, and that the Trump administration might punish it for doing that. Can you explain what's happening there?

Jamie: Well, they of course just recently made the decision to remove the Woodrow Wilson name from the public policy school over "racist thinking and policies" that the board and the President said Woodrow Wilson had championed. Beyond that, the President of Princeton has been talking very publicly about the need to end structural racism at the university and beyond. In response, Brian, the Trump Department of Education, the DOE, sent Princeton a letter reminding it, that as the recipient of many millions of dollars in federal funding, it should not "engage in racial or other forms of discrimination."

The DOE letter stating that Princeton's claim that systemic racism is embedded in the university, is essentially an admission that Princeton has been lying to the federal government and to parents about the use of its federal funding. The letter demands that Princeton now produce a broad swath of documents for inspection and make its president and others available for transcribed interviews under oath. I think we will see some tangling between Princeton and the Trump administration. Of course, all of this, Brian, including the Yale lawsuit, could flip if President Biden is elected and President Trump is not reelected in November.

Brian: Does this mean, though, when we take these cases together, maybe they just like to sue Ivy League schools, I don't know, but where college admits past systemic racism, it can lose the school federal aid as a punishment for the past, but if it tries to correct that racism by admitting more Black people in the present, Trump will sue to prevent that.

Jamie: It is fascinating the Trump administration's aggressive stance on Affirmative Action and complete lack of action on voting rights, I find that a rather tragic irony. It's also interesting when you heard Dean Chemerinsky, one of the nation's foremost scholars on constitutional jurisprudence, run through the cases of Supreme Court precedent in this area. Most of those cases, Brian, are cases involving state schools, UC Davis, Michigan, UT Austin, University of Texas at Austin, different jurisprudence, perhaps when talking about state action, involving students attempting to apply to or being denied admission to state schools.

When you're talking about private universities, there is the federal funding issue, but it is a slightly different formula when private universities are involved. Certainly, they cannot discriminate, but the formula, the court has said and Justice O'Connor, very wisely writing in a case called Grutter versus Lee Bollinger, in fact, who's now at Columbia, upheld that the court does support the right to consider diversity, that is a legitimate interest for a university, to consider in its thinking of its class, how to build a class, that does not violate the 14th amendment as long as it takes into account other factors when evaluating every individual on the basis of admission for every applicant.

It's a strict scrutiny standard. We've talked about that before, Brian. Race can be considered, but only if narrowly tailored as a factor in admissions policies. That would apply to state schools. One would think if the Harvard case makes its way to the US Supreme Court, there as well.

Brian: Jamie, thanks. Listeners that's our 30 Issues in 30 Days, election series segment for today, issue 21 Affirmative Action, tomorrow issue 22 maternal mortality. Brian Lehrer on WNYC, more after that.

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