America’s Supreme Court has ended the use of race-based affirmative action in college admissions. It is 45 years since the court gave its blessing to such practices but, given that it now has a six-justice conservative majority sceptical of using racial criteria, the decision was no surprise. Why did the court do this, and was it right to?

The University of Chicago’s Geoffrey Stone explains why he thinks it was wrong. We go back to the first time the court ruled on affirmative action in admissions. And The Economist’s Steve Mazie analyses the justices’ opinions and dissents. 

John Prideaux hosts with Charlotte Howard and Idrees Kahloon.

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She once described herself as the perfect affirmative action baby.

The child of Puerto Rican parents, she grew up in a public housing project in the South Bronx.

Her mother was a nurse, and her father, a factory worker, died when she was 9.

But she studied hard and got into Princeton, even though she reckoned her test scores weren't as good as most of her peers.

If it had been based on those test scores alone and her background hadn't been considered, she thought it was highly questionable she would have been accepted.

She came top of her class and Yale, and a storied law career followed.

Then in 2009, Sonia Sotomayor was nominated by President Barack Obama to sit on the Supreme Court.

Justice Sotomayor believes that without race-conscious admissions, a poor Latina from the Bronx would not have made it to the highest court in the land.

That idea will now be tested after her conservative colleagues ended affirmative action at America's colleges and universities.

I'm John Perdoe and this is Checks and Balance from The Economist.

Each week we take 1 big theme shaping American politics and explore it in depth.

Today, Was the Supreme Court right to overturn affirmative action?

The Supreme Court has ended the use of race-based affirmative action in college admissions.

It's 45 years since the court gave its blessing to such practices.

But given that it now has a sixth justice conservative majority skeptical of using such racial criteria, the decision was no surprise.

And how different will higher education in America look now?

Joining me to discuss affirmative action, the court's decision, what happens next at universities are Charlotte Howard in New York, and Idris Kalloun in Washington, DC.

Before we start, guys, I wanted to read you an email from 1 of our listeners, John, who's in Australia.

He wrote, we, myself, partner Anna, and daughters Lily and Anya, Lily's 4 and Anya is 2, live on the south coast of New South Wales.

As we're down under, Chex is available to us first thing on Saturday morning.

So when we get up, I put the kettle on and ask Google to play Chex.

I work all week and sometimes long hours so come Saturday morning Lily and Anya are chomping at the bit to spend some time with their dad and the way they can distinguish Saturday mornings from other days of the week is checks.

So when I put the podcast on They run around the house shouting in happiness, checks and balance, it's checks and balance.

They wake up mum and tell her that checks and balance is on and it means it's daddy's day.

They've taken to telling people that they love checks and balance because of what it represents in our house, not saying they don't love the content.

That was the best email we've had from our listeners for a while.

So we particularly wanted to thank Lily and Anya in New South Wales for their enthusiasm.

And I really commend John on his parenting style.

Well, I used to think that this podcast only sparked joy for my mother.

So it's exciting to hear that she may not be the only 1.

I enjoyed the letter from a reader on our chat about portmanteaus, which was followed up with an email from him saying that he and his friends at University coined the word portmanteurs, which is the curse afflicting people who create a portmanteau out of every new constellation of words.

Idris, you've been thinking about this subject for a while now, and you wrote Our Leader in the most recent edition.

And when we were discussing this episode after the Supreme Court came out with its decision, you had a pretty clear idea about who you think we should talk to.

So Jeffrey Stone is a professor at the University of Chicago Law School.

And if you know anyone who's gone to law school, you probably know someone who's bought 1 of his books.

He's a big time author of constitutional law textbooks.

And in addition to that, he's a big defender of affirmative action, so much so that he wrote a book last year with Lee Bollinger who Was the president of Columbia has the distinction of his name gracing 1 of the important Supreme Court cases about this issue Back in the early 2000s and I started by asking him why he supported affirmative action and thought it was constitutional.

Affirmative action enables a degree of diversity in higher education that otherwise might not exist.

For students to be exposed to and have to address people of very different backgrounds and experiences is an important part of education.

When I went to law school, that was still pretty much the reality.

There were 2 black students in my class in 1971 at the University of Chicago Law School out of 150 students.

That meant we didn't have all that much interaction.

We didn't get to hear their perspectives, their experiences, their understanding of law.

Second reason, which was more central to the book that Bollinger and I wrote, is that affirmative action is necessary to do justice.

That our society has, from its very beginning and before its very beginning, has engaged in serious discrimination against black people.

And if you look at the percentage of black people in this country who are now lawyers in major firms or judges or journalists or politicians or governors or senators or doctors.

It is quite different than it was 50 years ago.

And I believe a significant reason for that is they've been given the opportunity to have a better education at the college level than they otherwise would have.

So William Julius Wilson has often made the point that affirmative action doesn't do as much for the median African American person.

It's something in the far right tail of the income distribution among people who attend elite institutions.

And there is a sort of representational value in these fields that we're talking about, politics or law, et cetera.

But all the same, the racial wealth gap remains as high as it was 50 years ago.

And the idea that affirmative action at Harvard or UNC or the University of Chicago Would make a difference to what the typical african-american experiences is wrong I think that they're addressing separate issues Maybe and maybe you think there needs to be separate kind of policy program for the person in the middle and there needs to be a separate 1 for those who attend elite institutions?

I mean, I think that that's largely a correct observation.

You're not helping all the blacks throughout society at the same time.

But the advantage of it is the more you have black Americans in important roles in society, the more they can benefit the lives of not well-off or not benefit-shared affirmative action.

So you have black doctors who are serving black communities to a much higher extent than was possible in the past.

Or Black lawyers who are serving Black citizens to a much higher extent than they would have in the past and providing better service, professional service to them.

And so those benefits do reach out to the rest of the society.

It's not as dramatic, but there's no doubt that it has been a benefit.

And then on diversity itself, rather than use race as a proxy for diversity of ideas, why not have universities simply say that they want diversity of ideas and actually look for them directly?

The number of conservatives are not terribly high in elite institutions.

So could a university permissibly say, we want diversity of thought, and therefore we're going to include a separate kind of positive scheme for conservatives?

I mean, that would be perfectly OK, unless the Supreme Court says it violates the First Amendment.

But as a general matter, as someone who has spent his whole career in academia, I would think that's perfectly appropriate.

And I have no doubt that institutions do that, that they do want to see a more diverse ideological student body, and that they do feel there are too few conservatives, then they will take that into account in admission, no doubt about it.

And where do you see college admissions now that, you know, race-based affirmative action is no longer permissible, what do you think will happen?

I think the challenge is how do you preserve the values of diversity and of racial integration and of the benefits that black students gain from an excellent education without taking race specifically into account.

Now 1 obvious way to do that, that people identify, is just take economic status into account.

But the problem with that is because America is predominantly a white country, the majority of poor people are white, even though a much higher percentage of black people are poor.

And therefore, if you simply look at money, you will achieve much less racial diversity than you otherwise would.

The other question is, if the reason you do that is to increase the representation of black students then under existing constitutional law that could well be unconstitutional because the Supreme Court has held that if a government agency adopts a policy that is not explicitly race-based, but that was intended to have race-based effects, that would make it unconstitutional.

And if the reason all the schools that use affirmative action now go to this other policy, and everybody knows the reason they're doing it is to increase the number of black students, that could well be deemed by this court to be unconstitutional.

Niall Ferguson Charlotte, we'll talk in a bit about the Supreme Court's opinion and why the court made the decision it did.

But before we get there, I want to stick for a while on the kind of rights and wrongs of affirmative action.

I think this is a question where reasonable people can disagree, right?

I mean, I've changed my mind twice on this subject, well, in the time I've been looking at it.

What do you make of Geoffrey Stone's arguments in favor of affirmative action?

There are a few different ones he made, right?

There's a justice argument that African Americans in particular have been so wronged by American history that they are owed some compensation or reparations, though he didn't use those words.

And an argument that it's beneficial for other students on campus to be part of a diverse group.

And then the third argument he had, I think, was about the importance of having a successful black elite in America.

I think this gets to the heart of the challenge for a lot of people in thinking about affirmative action, which is I don't think anyone would really quibble, or at least I don't quibble with any of those goals.

And the question is whether this is the right tool.

And so you see that reflected in polling on affirmative action, where people support the idea of a racially diverse campus.

There's pretty consistent broad polling that majorities of Americans don't support race-based admissions policies.

I think when you get into the legal justification for affirmative action, which was established 45 years ago, it reflects this.

It's kind of weird, right, that the reason created for affirmative action, the legal justification for it, is about having campuses writ large benefit from diversity, which kind of makes it seem like it's for the benefit of white students.

I know you've made this argument before, Idris.

And that is a very weird legal underpinning for affirmative action.

But the goals that he articulated, I think, are hard to dispute.

Idris Elbaahi It's a fascinating question, Nisar, I think, because you have 2 goods clashing here, right?

Diversity, which many slash most Americans think of now as being a good, and non-discrimination, which is a very important value in America for good reasons.

And so partly this question is, how much discrimination are you willing to do to further the goal of diversity?

And Idris, the economist, we've been a bit skeptical about race-based affirmative action in college admissions for a while.

And you wrote a very good leader in this week's Economist outlining that argument and saying that affirmative action in college admissions had to go and the court did the right thing here.

So can you walk us through that argument, the kind of opposite of the Jeffrey Stone argument?

So I think that if you examine the text of the 14th Amendment, which promises equal protection under the laws, if you look at the language of the Civil Rights Act, which bars institutions that receive federal assistance from treating people differently on account of their race or skin color, it is harder to square affirmative action with those ideas.

And the Supreme Court has always held that idea that racial classifications are subject to what's called strict scrutiny Which means that any laws that classify Americans based on race need to be 1 narrowly tailored and to meet a compelling governmental interest.

Now I think that affirmative action, even if you can see the compelling interests, was not narrowly tailored.

Colleges at the same time, elite colleges, were practicing legacy admissions that hugely advantaged white and wealthy students for which, you know, they were using this other system of race-based affirmative action to kind of demographically balance, in effect, their incoming classes.

There could have been a less extreme version that they used, possibly 1 without race-based classifications, but they didn't even attempt it.

And then I think if you move on to the compelling interests, like Charlotte just said, the original justification given in the Bakke decision in 1978, which we're going to talk about later, was diversity.

You know, it's this construction on the basis of benefits for all students.

I think that rationale treats non-white students as kind of avatars for their race rather than individuals.

And then the other argument, the reparational 1, is not 1 that the Supreme Court has ever endorsed.

But I think even there, and let's just set aside the case for Hispanic Americans or the case of Asian Americans who certainly suffered systemic discrimination in America, but there isn't a positive discrimination in their favor.

Even in the case of African Americans and this kind of reparational argument.

For 1, the current students are not the ones who suffered the injustice of the Jim Crow era or slavery.

They're possibly not even the descendants of those who did as well.

So the tailoring is not quite as specific as we might hope as well.

So I think that there are a lot of complications to this policy and what was the effect of it?

There's certainly the representational gains.

There's certainly the benefits for the particular students who benefit from it.

But I don't think that ultimately the gains made justified the violence to the principles of equality under the law and fairness.

I think it is worth, though, dwelling on what happens when affirmative action goes away.

And you see that in states that have banned affirmative action.

We published an article by our colleagues Tamara Jilxbor and Mark Johnson that outlines this.

There was a survey of selective universities in 6 states, and in the years after the bans were instituted, the bans on affirmative action were instituted, they enrolled roughly 20 percent fewer Black and Hispanic Americans than they would have otherwise.

And so that's a really, really striking statistic.

But I think part of why this discussion is so complex and arouses very strong feelings on either side of the aisle, and you saw this reflected in the decisions from both John Roberts, but also from the dissenting justices on the left, is that it touches on these questions that are fundamental to the identity of America itself.

Are colleges an engine of social mobility or how can they be?

And if you recognize that America is not colorblind, that race-based disparities do exist, which they clearly do, should you avoid policies that differentiate based on race?

Sotomayor, in her dissent, she wrote very disdainfully of the decision cementing, quote, a superficial rule of colorblindness as a constitutional principle in an endemically segregated society.

So there is the specific question of the tool, whether it was effective or whether it was constitutionally justified.

And then there are all these broader questions swirling around it of how best American policymakers can seek to, should seek to, try to reduce those disparities as they clearly exist.

I liked John Roberts' rejoinder to the argument that the Constitution is not colorblind, which is, he asked, well then, what colors are justified in getting advantages and who gets to decide that?

And he says that, you know, the liberal justices aggregate to themselves the ability to choose that policies that benefit certain sets of races are constitutional, and those that benefited say whites over blacks would be unconstitutional.

And he argues that that is such a claim of judicial power that it ought not to stand.

And I think that's a compelling kind of point.

You know, you read the language of, again, the Constitution.

Obviously, America has never fully lived up to that, although it's gotten closer and closer to its aspirations.

But the idea that programs that advantage certain races in certain directions are okay, but not others in other directions is a gnarly kind of hole to go down.

Yes and ultimately I think it's that inconsistency of principle that did for affirmative action.

We'll go back to the first time the Supreme Court ruled on affirmative action in admissions in a moment, but first the usual reminder we'd love it if you'd take out a subscription to The Economist if you don't already have 1.

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You'll find it in the notes for this episode.

Regents of the University of California, against Backe.

A former Marine, in his 30s he'd applied twice to the University of California Davis Medical School.

He was rejected twice, even though he was a good candidate with good grades.

Barkay thought this was because he was white and sued the school.

UC Davis had changed its admission system in the late 1960s.

Archibald Cox, arguing for the university, explained why.

the applicants at Davis, as at most other medical schools, were chosen on the basis of scores on the medical aptitude test, their college grades, and other personal experiences and qualifications as revealed in the application.

The process excluded virtually almost all members of minority groups.

There were no black students and no Chicanos in the class entering Davis in

In response to the civil rights movement, many colleges had adjusted their admission systems to address the relative scarcity of black Americans and other minorities on campus.

UC Davis admitted 84 of the 100 students in each class in the way it always had.

The remaining 16 places were reserved exclusively for qualified minority students.

The ultimate fact in this case, no matter how you turn it, is that Mr Bakke was deprived of an opportunity to attend the school by reason of his race.

When he applied to UC Davis in both 1973 and

his grades and test scores were worse than the 84 students accepted on those metrics alone.

But he was more qualified than the minority students who got the remaining 16 places.

The question in front of the court was, Did this violate Barclay's rights under the Equal Protection Clause of the 14th Amendment and the Civil Rights Act?

Justice Powell will announce the judgment of the court.

The following June, the court revealed its answer.

Under this judgment, Bakke will be admitted to the medical school.

The majority found in Alan Bakke's favour.

Steve Mazey, The Economist's Supreme Court correspondent, explains why.

Reserving 16 seats for members of certain minority races was an unconstitutional violation of equal protection.

To be that rigid about having a minimum number of seats for particular races was found to be too rigid of a use of race for those 5 justices.

That's a racial quota and racial quotas are unconstitutional.

But this was not the case's lasting legacy.

5 justices had found in his favour, but 1 of them, Justice Powell, shifted to join the others in agreeing with 1 of UC Davis' justifications for its admissions system.

In my view, the only state interest that fairly may be viewed as compelling on this record is the interest of a university in a diverse student body.

Powell said that although a quota system was wrong, race could sometimes be considered in college applications if it encouraged diversity.

The idea was that racial diversity is a positive element in one's education no matter what your race is.

That this is something which is compelling in the classroom and then ultimately after graduation.

In its first time weighing in on the issue, the Supreme Court gave its blessing to the consideration of race in college admissions.

In its most recent decision, 6 justices disagreed.

Well the majority opinion seems to regard Regents vs.

Bakke as the original sin of the court back in

And all of the decisions that have piled on top of it, from Grutter versus Bollinger to Fisher versus University of Texas, they have all been based on that misreading of the Constitution.

It established a legal terrain that lasted, despite challenges, for 45 years, until last Thursday.

So Idris Mbake, the court found for the guy who wanted to go to medical school, but also sets up this idea that affirmative action could be okay if it's to further the goal of diversity on the college campus.

And that is the basis on which affirmative action is then used by lots of selective colleges in America.

Can you run us through the important cases that happened between Barclay and the most recent 1 that's overturned affirmative action?

Can you run us through the legal history there?

Yeah, what's interesting is if you examine the 45 years of this debate, you see that there's been this cat and mouse game where elite universities come up with new policies and schemes to increase the racial diversity of their classes, which the courts are increasingly suspect of.

So in the Backe decision, the University of California Davis had an explicit quota of 16% of the class.

They said that the quota was unconstitutional, but it did leave this window open under the mantle of diversity, which is the rationale that universities have leapt upon.

But the problem with the Bocke decision was that it was quite a fractured opinion.

Justice Powell's opinion was thought to be the controlling 1, but there were many opinions and it was unclear what the exact law of the land was.

In that opinion Powell also said that he heaped praise on Harvard's admission process which was holistic, it didn't have an explicit quota, but it considered race in a way that was hard to pin down but resulted in fairly demographically mixed class, and he said that that was the right way to do it, as long as 1 wasn't too explicit about what was going on, you know, it might be okay.

And then in 2003, there were 2 important cases, 1 Gratz v Bollinger, and another Grutter v Bollinger, which ultimately confirmed Justice Powell's opinion, although by a clear majority of the court.

And that found that giving points to people for being certain races was also violative of the Constitution, that it too much leaned into treating people as avatars for their race rather than individuals.

And importantly, in those decisions, Sandra Day O'Connor, writing for the majority, said that she expected that affirmative action would only last for 25 more years.

It was a temporary measure because of its contramanding of other principles that are important to the Constitution and to law.

Then in the 2010s, there's this Fisher case challenging the constitutionality of some top 10th programs where the University of Texas admitted students in the top 10th of their high schools as a way of increasing racial diversity, which ultimately they could have chosen to overrule affirmative action, but did not at the time.

And then this most recent case, students for fair admissions versus Harvard and versus UNC were filed on behalf of Asian Americans who said that they were being discriminated against relative to whites and more conservative court this time around, basically.

And I think Steve is right about this, although Roberts took pains to emphasize that he was adhering to precedent and the time limit set up in Gratz and Grutter, that he was basically overruling the entirety of this jurisprudence starting from Barclay.

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