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Brian Lehrer: Brian Lehrer on WNYC. Well, the Supreme Court issued three opinions this morning. As we've been reporting on the show, they included the big affirmative action cases brought against Harvard and the University of North Carolina. We are joined now again by our June court watcher Elie Mystal, the justice correspondent for The Nation and host of their podcast Contempt of Court with Elie Mystal, and author of the book Allow Me to Retort: A Black Guy's Guide to the Constitution, now out in paperback. Hey, Elie. Welcome back.

Elie Mystal: Those maniacs, Brian, they blew it up. God damn them all to hell, they blew it up.

Brian Lehrer: Did they blow up affirmative action? There's some restraining language there, mitigating language, nuance language. What, to your eye, did they do?

Elie Mystal: No, that's just for the press releases, Brian. Roberts is arguing that universities can still look at the race of an applicant if the applicant makes it an issue in their college admissions essays or what have you. Just understand the incongruity of this. Roberts says that diversity is a goal that universities can care about, but he's calling unconstitutional the policies through which universities care about diversity. What he's doing is that he's declaring affirmative action unconstitutional, but he's trying to throw people a bone so that people don't protest at his house. Like that's all that is.

He's taking away the policy but leaving, I don't know, the idea, the soup soul, that perhaps if a student happens to be Black and is like, "Yo, that was hard," that universities don't have to ignore it. Just to put a finer point on it, he has to say that because the alternative is unenforceable. The alternative of students can't say that they're Black in an essay, and if they do, colleges' admissions councils have to memory-wipe that information from their brains. That's an unenforceable rule, so that's why he's saying it. For all intents and purposes, he has banned affirmative action as unconstitutional under the 14th Amendment.

Brian Lehrer: Listeners, especially if you're involved in college admissions, or you have some personal experience as a student or a past student and want to weigh in on this, we can take some phone calls at 212-433-WNYC. Obviously, if you have a question, in addition as Ellie has been reading through this relatively dense Supreme Court decision, 212-433-9692. You can also text to that number or tweet @brianlehrer.

Elie, make the distinction, if there is a distinction, between these two cases. One was brought against a private university, Harvard, and the University of North Carolina, a public one. Were they combined for the opinions or were there differences? Does the 14th Amendment, the Equal Protection Clause, which the majority said was violated by these affirmative action programs, does it apply in the same way to a public and a private university?

Elie Mystal: Again, for all intents and purposes, yes. That's why they combined the cases. They wanted one case for a private school and one case for a public school so there wouldn't be any legal confusion between what the court was banning, but in practical effect, it's going to be the same thing. However, the fact that they're treating both of these schools as exactly the same is another indication, or canary in the coal mine, to just how much this decision was policy driven as opposed to legally and factually driven because Harvard and UNC have two very different admissions policies and two very different ways of achieving diversity through their admissions policies.

I have argued in the past, Brian, that I think Harvard's admissions policy is quite bad and quite discriminatory towards AAPI students. That discrimination has nothing to do with affirmative action, and that's the conservative problem there. The remedy that conservatives suggest does nothing to stop what I believe is the racial admissions policies of Harvard University. The conservatives just overlooked that. UNC has a completely different policy. If you look at the facts on the ground, AAPI enrollment in universities and UNC is higher than Black enrollment at UNC. It's easier to get into school at UNC if you're AAPI than it is if you're Black.

Again, the factual argument against UNC just doesn't even hold water. Again, the conservatives aren't concerned with facts or law. They're concerned with ending the policy, and that's what they did.

Brian Lehrer: Let me take a phone call. Our lines are full. You may not be surprised by that. Abbey in Brooklyn, you're on WNYC with Elie Mystal. Hi, Abbey.

Abbey: Hi. Good morning. How are you doing?

Brian Lehrer: All right.

Abbey: Could you please explain why it's not discrimination if I'm a white guy and I can't get in because you give preference to a Black guy? If it was the other way around, that would be discrimination. Just explain succinctly why it's not discrimination.

Elie Mystal: Well, because it's not that you can't get in. Of course, you can get in. If you're a white guy and you have good scores and good grades, you can absolutely get in to school. You see, you're acting like it's a zero-sum game. Like there's one spot and 18 people are fighting for it, and only the Black people get. No, that's not at all how it happens. You can of course get in to school regardless of your race, color, or creed. What affirmative action does is that it allows the universities to look at their class as a whole. All right? You think about it, universities do this all the time. The universities will say, "Okay, we've got 18 kids from New York. We should probably get one kid from Iowa in there."

If you're choosing between the 19th kid from New York or the first kid from Iowa, maybe you gave the kid from Iowa a shot because you don't have a lot of people from Iowa in your class already. Nobody seems to have a problem with that. The Supreme Court certainly doesn't have a problem with that. We see this all the time with gender admissions. If you have a class that's like 60:40 men, historically white women have been the biggest beneficiaries of affirmative action when schools say, "You know what? We don't want a sausage fest, and so we're going to throw in some women." Right now, if you look at the elite universities-

Brian Lehrer: One way to put it.

Elie Mystal: -they're giving that bump to male applicants because in the modern context, it's men whose grades and test scores and standardized tests, whatever, haven't kept pace with women. Now, if you're looking at a class that would otherwise be 60:40 women, you're like, "You know what? We're going to throw in some extra guys here to make sure the class balances out." That's all affirmative action is. What the Supreme Court is--

Brian Lehrer: The Court is saying all of those are the things to get somebody in from the Midwest when there's nobody in the mix. To get somebody in to have a better gender balance is okay, only not race?

Elie Mystal: Only race is the thing that they can't look at. The schools can look at gender, geography, wealth. They can look at legacy admissions. They can look at athletic accomplishments. They can look at whether or not you're good at chess. They can look at whether or not you're good at playing the piano, but they can't look at whether or not you're a minority. That is the incongruity and the hypocrisy of today's Supreme Court ruling.

Brian Lehrer: Joan in Manhattan, you're on WNYC. Hi, Joan.

Joan: I was wondering if this filters down into city and state issues. For example, Stuyvesant High School and Bronx High School of Science, are they affected by this?

Brian Lehrer: Well, of course they don't have affirmative action. They have a single criteria which is a high-stakes test, so they don't have anything like that right now. I guess by implication Joan is asking if they wanted to abolish that single high-stakes test methodology as a lot of people want them to do, how would they be restricted at the high school level?

Elie Mystal: Each school, whether it's a graduate school, college, or high school, has its own different admissions policies, its own different admissions programs. All the court is saying is that an admissions program that emphasizes diversity, emphasizes racial and ethnic diversity as part of its factors for building its class, that is what is unconstitutional. Again, when you look at how this is going to be enforced, we have examples from the state of California, which outlawed affirmative action 25 years ago, in terms of what's likely to happen. Because colleges and universities will still want diverse class matriculation because it's better.

It's better from an educational standpoint, according to them, so they will still do whatever they can to increase the diversity of their classes. The Supreme Court is simply saying that the specific policy of affirmative action cannot be used for that, and it can't be used for the old school reason from affirmative action, which is racially ameliorative to overcome the histories and centuries and generations of racial segregation and oppression. That rationale has been kicked out by the Supreme Court.

Brian Lehrer: The vote, by the way, which I don't think I mentioned yet, was along the lines you might expect, six to three, with Justice Roberts writing for the conservative majority, and Justices Sotomayor, Kagan, and Jackson in dissent. Justice Jackson was recused in the Harvard case because she was involved in it earlier, but she still gets to weigh in in a dissent. I noted earlier, Elie, a tweet highlighting this from Justice Jackson's dissent, "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat, but deeming race irrelevant in law does not make it so in life."

Did you want to expound on that, or do you have any other lines from the dissent or the majority opinion that jumped out at you?

Elie Mystal: Yes, but let's start there. First of all, Justice Jackson is able to dissent because while she was recused from the Harvard case, she wasn't recused from the UNC case and they decided those two cases together, so Justice Jackson gets her say. What the legal nutty issue is, is whether or not the 14th Amendment should be colorblind. Whether or not the Equal Protection Clause means equal protection for everybody regardless of race, color, or creed. We can't even know what the race, color, or creed is of the people. That's the argument from the conservatives.

Ketanji Brown Jackson is saying, "Well, clearly not," and she's clearly right because the 14th Amendment was passed after the Civil War specifically to redress racism in this country. In fact, the original authors of the 14th Amendment passed it, the congressional authors of it passed it because they wanted to enact an 1866 Civil Rights Act which included - wait for it - affirmative action in the Reconstruction South. They understood that they could only do that law, they could only have their 1866 Civil Rights Act if they had the cover of the 14th Amendment.

From the very jump, the 14th Amendment was written to promulgate racial redress, and it was used by its originalist authors to advance policies like affirmative action. That is what Ketanji Brown Jackson is talking about there, and that is what the conservative majority simply ignores. Roberts, in particular, has a history of doing this particular kind of obliviousness. I say in my article in The Nation that John Roberts is the guy who wants to hang a "Mission Accomplished" banner declaring victory over racism, and then use that banner to immediately stop any attempt to combat racism in America.

He didn't just do it in this case, he's done it before in 2012 in Shelby County v. Holder, where he gutted the Voting Rights Act basically on the argument that the Voting Rights Act has been successful, the South is no longer racist, and so they no longer should have to pre-clear their voting changes with the Department of Justice. We see how that's worked out in the South in the former Confederacy since 2012, haven't we? Roberts is trying to do this kind of obliviousness that Ketanji Brown accuses him for on purpose. It's his kind of essential logical flaw.

Brian Lehrer: Though he did, in the other case that was decided recently, allow the federal government to declare redistricting racist after the fact, even though he didn't allow them to require pre-clearance anymore. That's something, right?

Elie Mystal: That's surprising, and I do think that it's part of the reason why he-- Because, remember, when I came on to talk about that case a couple of weeks ago, I was shocked that Roberts did that. Every other time in his career, he has voted against the Voting Rights Act. This is the one time where he tried to affirm it. I anticipated then that it was because this affirmative action decision was coming. Roberts is a political animal of the highest degree. He understands how the court is talked about in the press, he wants good press, and he wants exactly that counterargument to be made while people are criticizing his affirmative action decision.

Brian Lehrer: Raj in Queens, you're on WNYC. Hello, Raj.

Raj: Hi. Thanks for addressing this. I got the news alert and I just was pissed, angry, even though this was anticipated. I'm a professor in a large-ish Catholic university in Queens and work on these kinds of issues in ethnic studies and critical race studies. I come from a very upper-middle-class South Asian background. My entire community-- no, I shouldn't say that. A lot of people in my community have these kinds of conversations where we think we are at risk of not getting in. We are losing out because affirmative action is helping those other less deserving, less qualified minorities, Blacks and Latinos and Latinas, and it's a really frustrating thing.

Just recently, a month ago, I had that kind of conversation where parents - South Asian American, East Asian American - were having a conversation about how hard it is for us now. Because of affirmative action, that we're left out. It was really frustrating to hear this alliance with a white supremacist notion of what universities should be.

Elie Mystal: Yes. I wrote about this. That is one of the reasons why affirmative action is down. You even heard it from the first caller. There is the false perception that it's a zero-sum game and that every time a Black student gets into university, that is taking a spot from somebody else. As if that was a spot that was owed to them or bequeathed to them or whatever, but that they're taking something from somebody else. There is a lot of anger and frustration over that.

It's wrong on two levels. One, as I already explained to the other caller, it's not that zero-sum game. If you are a really high-performing white student in New York, most likely your spot got took, if we're going to use that terminology, by a really high-performing white student in Iowa. That got took by a really high-performing white student from Vancouver. The first sort that colleges and universities do in their admissions class is a sort by geography, and that's why students living on the coast and in high populated areas have a particularly difficult time. There's a lot of people to compete with.

Brian Lehrer: Can geography, given the housing segregation in this country, be used effectively by schools as a surrogate for race? Because I think even the plaintiffs in this case said they can still look for diversity by ZIP Code and we know many progressives will say, well, the ZIP Code that you're born into will do more to determine your fate as an adult than a lot of other factors. We know what the mostly Black and Latino ZIP Codes are in New York City, for example, and what the mostly white, et cetera. Can that be used effectively if colleges want to do it?

Elie Mystal: Kind of, but understand, Brian, geography is really a proxy for white supremacy because non-white people are not evenly spread out throughout the country. Most Black people live back where their ancestors were enslaved. Most Black people in this country still live in the former Confederacy. Most AAPI students are clustered on the coasts. When you actually use a geographic sort, what you are doing is preferencing white students living in the middle of a country where not a lot of other people live. That's just what you're doing.

If you're going to say that we're going to keep at least three spots in our university open for kids from Montana, that itself is a form of affirmative action for white students because predominantly white people live in Montana. If you're going to say we're only going to have 18 kids from Long Island in our class, 18 sounds like a lot when Montana is only getting three. Well, if you're only going to have 18 kids from Long Island, you are pitting high-achieving white students with high-achieving Jewish students with high-achieving AAPI students with high-achieving Black students all fighting over 18 spots. Again, that's how that cookie crumbles.

Brian, I just want to make the other point to the caller's question. The other reason why this zero-sum game of college admissions is just the wrong starting point of an idea is that it's based on the idea that somehow we can tell the worth of prospective applicants based on a multiple choice standardized test score. It's just anti-intellectual, is what it is.

Brian Lehrer: We have to leave it there for now, unfortunately. Clearly, a lot more to come on this through the day on the station, and more to come with Elie almost certainly tomorrow when the court has scheduled its next opinion day. It hasn't ruled yet on the student loan forgiveness program from President Biden and everybody is waiting for that. For today, thank you Elie Mystal, justice correspondent for The Nation, the author of Allow Me to Retort: A Black Guy's Guide to The Constitution, now out in paperback. Elie, thanks as always.

Elie Mystal: Thanks so much for having me.

Brian Lehrer: That's The Brian Lehrer Show for today, produced by Mary Croke, Lisa Allison, Amina Srna, Carl Boisrond, and Esperanza Rosenbaum. Zach Gottehrer-Cohen produces our Daily Politics podcast. Megan Ryan is the head of Live Radio. We had Juliana Fonda and Miyan Levenson at the audio controls. Stay tuned for Allison.

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