MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Supreme Court today sidestepped a major ruling on the use of race conscious school admission policies. It sent the case of Fisher v. University of Texas at Austin back to the Fifth Circuit Court of Appeals. Joining me to discuss what the decision means for the future of affirmative action, author and journalist Stuart Taylor, Susan Page of USA Today, and Jeffrey Rosen of the National Constitution Center in Philadelphia, Pa.

MS. DIANE REHMI do invite you to be part of the program. Give us a call, 800-433-8850, send us your email to drshow@wamu.org, follow us on Facebook, or send us a tweet. Good morning everybody.

GROUPGood morning.

REHMJeffrey Rosen, tell us about this case, Fisher v. University of Texas at Austin. What was it all about?

MR. JEFFREY ROSENIt was a fascinating case because it was at the University of Texas at Austin that the entire legal challenge to affirmative action began. It was back in 1995 that the U.S. Court of Appeals for the Fifth Circuit first struck down the University's affirmative action program in which it had considered race as one of several factors in making admissions decisions. The University responded by adopting a less race conscious plan. It's called the ten percent plan.

MR. JEFFREY ROSENThey guaranteed automatic admission to the top ten percent graduates of any Texas public high school. Because Texas public high schools are geographically segregated, and because there's racial correlation to the geographic segregation, they this resulted in more minority students being admitted. However, the University decided that this was not enough. That within individual classes at the University, there are no minority students. That white students would cluster in some classes, and minority in others, so they adopted an additional affirmative action program, not using firm quotas, but basically giving a leg up to people on the basis of race.

MR. JEFFREY ROSENIt was that second, the leg up program, that was challenged in this case. Many people expected the future of affirmative action to hang on it, and the crucial legal question was, would the court overturn its 2003 decision in the Grutter case in which it said that the educational benefits of diversity were a compelling interest that universities could pursue. And I'll leave it to my colleagues to give you the thrilling response here, but just suffice it to say that the court reframed the question. It did not overturn Grutter, and instead, it held that the university has to meet strict scrutiny standards. But that's up to Stuart to explain.

REHMStuart Taylor.

MR. STUART TAYLORYes. Well, the vote was 7 to 1, which nobody expected. It was widely expected to be a 5/4, that would constrain the ability of universities to use racial preferences in admissions. But Justice Kennedy, who was expected to write the opinion, wrote it so narrowly and really changed the law not at all, or almost not at all, that two of the more liberal Justices joined his opinion, Justices Breyer and Sotomayor, even though they're very proracial preference. Only Justice Ruth Bader Ginsburg dissented.

MR. STUART TAYLORShe did read her dissent from the bench, which sort of put on exclamation point on it, but -- and Justice Kagan was recused because of her prior role as Solicitor General. But, if...

REHMThe decision was...

TAYLORThe decision was -- I'm sorry. The decision was to send the case back to the lower court, the Appeals Court, says that they had not applied a tough enough form of scrutiny -- strict scrutiny, narrow tailoring is the buzz words. They had been too credulous of the University of Texas saying, hey, we acted in good faith. They had not done the following, which is a sentence from Justice -- the opinion. "Strict scrutiny imposes on the university the ultimate burden of demonstrating before turning to racial classifications that available workable race neutral alternatives do not suffice." End quote.

TAYLORRace neutral alternatives include things like the ten percent plan that's been mentioned. They include things like socioeconomic preferences, but I think there are two ways of stepping back from what's really going on. One is, Justice Kennedy had his best chance that he's likely to have any time soon, if he wanted to, to supply the fifth vote to cut back on racial preferences and admissions substantially. He passed on that opportunity. This may mean he's never going to do it, and if he never does it, probably the Supreme Court will never substantially restrain the use of universities to use racial preferences.

TAYLORI don't say that with glee, because I want them to use -- to constrain it, but that's -- that's one way of reading it. The other way of reading it was this was the wrong case in which to do much. The lower court records were sparse, and importantly, Abigail Fisher's lawyer did not ask the court to overrule its prior precedence in 2003 allowing use of racial preferences. And so the court seized on that, and said, well, we haven't been asked to cut back on our presence, so we're not going to think about that. We'll leave whether we do that to a future case.

REHMAll right, Susan. So it looks as though the Supreme Court punted?

MS. SUSAN PAGEIt's not the satisfying decision that I think journalists were looking for, you know. Supreme Court remands to the Fifth Circuit is not the kind of headline that would draw a lot of readers, and you can see why the liberal justices signed on, because it didn't undercut the affirmative action programs. But you can understand why the more conservative justices did too, because it leaves for next term what might be a more dramatic decision with a case that they've agreed to take involving the University of Michigan, another state where we've seen some of the most important cases involving affirmative action be decided.

MS. SUSAN PAGEIt seems to me, and I'd be interested in what my more learned panelists would feel about this, that the trend of the court seems pretty clear. There seems to be a trend away from continuing to allow affirmative action programs. Even in the 2003 case, we had Justice O'Connor saying in 25 years we won't be having these programs. The Court's more conservative now than it was with that 5/4 decision, so it seems to me that if you're looking at the direction of the court, it's going in the direction that the need for affirmative action programs is being addressed in other ways in our nation.

REHMJeffrey.

ROSENI think both Stuart and Susan have hit it on the mark, but this is a big deal, and I think it's a wonderful decision for comedy and compromise and narrowness over polarization. Everyone expected the court by a five to four vote to strike down affirmative action and to overrule the Grutter case and basically make race consciousness in the classroom impossible. It didn't do that. And for it to be a 7 to 1 decision like this is precisely the kind of compromise and narrow decision that Chief Justice Roberts said he wanted at the beginning the this term.

ROSENIt's what we tried to do in the health care case. But to persuade Anthony Kennedy, who usually likes to be sweeping and broad, to write the kind of decision that could attract the liberals, and crucially, this is the central point, the court did not overturn the Grutter case.

REHMHere's what I want to understand. Justice Ruth Bader Ginsburg is one of the most liberal justices on the court. What was the nature of her dissent? Stuart?

TAYLORThe gist of her dissent, which was only four pages, but by summarizing it from the bench, she showed some passion about it, was the court is nitpicking with the University of Texas and the lower court. You know, they've already given very good reasons for using affirmative action, which I call racial preferences because it's more accurate, and therefore, there's no good reason to send this back to the lower court. But given that she's dissenting from an opinion joined by two of her liberal colleagues, the difference between what the majority says, and what Ginsburg says in terms of the operational difference is not very great.

REHMSusan.

PAGEAnd on the other -- on the other side, going to the other extreme, we have Clarence Thomas, one of the most conservative justices saying it's time to overturn these entirely, and he outlines the most extreme of exceptions to allow race preferences or affirmative action which would be -- now, what is the language he used? Imminent -- the threat of imminent violence as the only justification for having affirmative action.

REHMSo it's really kind of fuzzy as I hear you all talking, that affirmative action will continue, that they're simply punting back to the lower court. Jeffrey?

ROSENIt will continue. You can have these ten percent plans, and the question is how open or candid can you be about the numbers? Justice Ginsburg's main objection was, this sort of decision makes universities be disingenuous. They have to use race as a bump up, but they can't have explicit numbers doing so. So instead they'll go to soft factors, like having people describe the burdens they've overcome, or their difficulties in life. She'd prefer -- she says honesty is the best policy, but Justice Kennedy had repeatedly refused to say never when it comes to affirmative action, and the fact that he reiterated that here and said educational diversity is a compelling interest, although Court's can't defer to the university about what counts as educational diversity is a huge deal.

TAYLORYeah. One point I'd add, which is why I don't quite share the enthusiasm is these are extremely difficult cases to bring.

REHMYeah. I'll bet.

TAYLORThere hasn't been one that I'm aware of between 2003 and now -- imagine, you know, you don't want to -- you didn't get into college, and most people don't want to make a big lawsuit out of it and become famous and get savaged. So there aren't many of these suits. So Justice Kennedy knows that if he wants to do what he's implied he wants to do in his past dissents, which is not ban racial preferences, but make it much harder universities to justify them, to make sure that say, preferences based on socioeconomic disadvantage won't give you enough diversity.

TAYLORIf he wanted to do that, he knows it may be another ten years before a case presents itself where that could be done, unless this case comes back up again.

REHMWhy wasn't this a good enough case to either totally overturn or totally uphold against affirmative action, Jeffrey?

ROSENIt could have been. If Justice Kennedy had wanted to do it, he could have done it. There was nothing in the facts of the case that prevented a sweeping ruling of the kind that Susan described Justice Thomas making, which is to say the Constitution is completely colorblind, and short of preventing imminent violence, you can never be race conscious. It's true that this was unusual in that it was a two step program. There was first the ten percent plan, and then the bump up.

ROSENBut I think the fact that the court didn't strike it down says more about the desire for compromise and moderation than about the facts of this case.

REHMJeffrey Rosen, Susan Page, Stuart Taylor. We'll be taking your questions when we come back.

REHMAnd welcome back. As I'm sure you've heard by now, Supreme Court today sidestepped a major ruling on the use of race-conscious school admission policies. It sent the case of Fisher v. University of Texas at Austin back to the Fifth Circuit Court of Appeals by a vote to 7 to 1. Now because there are some many questions from our listeners, we're going to open the phones and take some calls. We'll talk further as we go along. Let's go first to Plano, TX. Good morning, Paul. You're on the air.

PAULThank you, Diane, for taking my call.

REHMSurely.

PAULI'm a long, longtime listener.

REHMThank you.

PAULMy comment, while I'm not very knowledgeable about the various court actions along these lines. I will say that having had first-hand experience back in the early and mid-'70s here in Texas, and again I don't know much about on the undergraduate level, but I do know that on the graduate level and the medical schools and dental schools, I had many classmates both white and of color where in some cases students of color would less than academic success in their undergraduate studies were admitted to these advanced degree programs and white students were denied admission who had clearly more successful academic careers.

REHMAnd that's always the question, Stuart.

TAYLORYes. Well, it's pretty clear that the very meaning of affirmative action as it's come to evolve which is racial preferences in admissions means taking black students and Hispanic students and American Indian students whose academic credentials when applying are less impressive than whites who are passed over and passing them over to whites and, by the way, passing them over whites who are not only better prepared but often who are less wealthy and Asians.

REHMSo you are not happy with this decision.

TAYLORNo. And the reason is -- and I wrote a book on this, co-authored with Richard Sander -- our point, which the court doesn't touch on, Justice Thomas does, is that the preferences are so large that they create such large academic gaps within the institutions that it's hurting the people who get the preferences, especially the black students that they're put at a level of competition where they're likely to be frustrated and possibly fail.

TAYLORAnd there's a lot of empirical data as well as stories that support that hypothesis. And so what we had hoped to see was not the court banning affirmative action, and that was never in the cards by the way. Justice Kennedy has never indicated he would do that. What we had in mind was for the court to reduce the size of the racial preferences, increase commitment to socioeconomic disadvantaged students and make them transparent.

TAYLORMake public exactly what the preferences are, the size of them, the data so that, for example, a black student who wants to be a premed has a pretty good idea how many of the students with his academic credentials or hers have ever gotten through the premed program. At Colgate, for example, I've been told the number in the last 10 years is zero. And we had hoped to see the court move in that direction. I don't know if they ever will, but they certainly didn't do that today.

PAGEYou know, it's interesting that two of the justices who were involved in today's decision have their own personal experiences with this and have very differing interpretations of this. Clarence Thomas has talked about how affirmative action has contributed to the value, in his sense, of his own or maybe other people's sense of the law degree he got in an Ivy League school. And Justice Sotomayor has talked about the important role that affirmative action play in her own quite impressive academic career.

PAGESo these are real-life examples from the justices who are actually making this decision.

ROSENYou're actually right, Susan, about Justice Thomas' personal commitment to the issue. And we know from Marcia Coyle's new book. She has a very good book out on the Roberts' court. She's the correspondent for National Journal. She said the court initially decided not to take this Fisher case. There were only two votes to take it and they need four. But Justice Thomas, according to Coyle, made a personal appeal to his colleagues.

ROSENHe said I know about affirmative action. I've experienced it. I know how stigmatizing and degrading it is and persuaded two other justices to vote to hear it.

REHMInteresting.

ROSENYeah.

REHMWe should also mention that Supreme Court is adding tomorrow as a possible decision day as well as Thursday. So we'll see you all back here again. Let's go to Sarasota, FL. Good morning, George.

GEORGEGood morning. I appreciate you taking my call. The question I have is how can anyone justify discriminating against somebody because of race, whether it be black or white? So if a spot is taken by a less qualified person because of their race, that's discriminating against the person who wasn't selected, plus it takes away a valuable seat. But if the person isn't successful in the end, all he's done is taken up a seat and wasted away the resources. I just don't understand the whole idea.

REHMJeffrey?

ROSENIt's a great question. It's a very star question and I guess the constitutional answer, not the policy answer but the constitutional answer, would be the framers of the 14th Amendment to the Constitution, which is the one that guarantees all persons the equal protection of the law passed it after the Civil War because they were especially concerned about avoiding the subordination and special disadvantages suffered by African-Americans.

ROSENAnd they believed that if a particular government program wasn't designed to subordinate or harm African-Americans but instead was designed to help or compensate them that was consistent with the Constitution. And for conservative justices who believe in the original meaning of the Constitution, that vision should in fact be relevant.

REHMStuart?

TAYLORJeff makes a very good point. It's worth pointing out that the majority of Supreme Court has never quite accepted the point of view that Jeff just stated. Maybe they should have, but they haven't. They have said the educational value of the diversity, for all the students, in particular the white students is what justifies using racial preferences to increase the number of black and Hispanic students who otherwise might not be very numerous at the top universities because there aren't that many who have the same academic qualifications.

TAYLORAnd so, although there is a rich history here, the current arguments tend to focus on diversity because Justice Powell in the original Bakke case in 1978 cast a balance-tipping vote on that ground.

PAGEBut in response to George's question, I think any of us who have gone through the college admissions process ourselves or had kids who'd done so, know there's not one thing that tells you who's the smartest kid, who's the kid who's going to be most successful in college, who's going to be the best doctor or lawyer. You know, it's a mix of things that colleges look for both to design a diverse class because I think most universities feel like diversity is an important attribute to have their classes.

PAGEBut also to a diverse country. You know, there -- you can't just look at SAT scores and say this is the right way to get the most qualified kids in a college class. It goes beyond that.

REHMStuart?

TAYLORWell, another point of history, the Supreme Court is held since the 1940s that all racial classification used by governments -- state governments, local governments, federal governments -- are presumptively unconstitutional. Meaning, they're unconstitutional unless there's a very special and important reason to use a racial preference in a particular case.

REHMAnd you're saying schools are somehow exempt from that?

TAYLORWell, the court has created a number of large exemptions from that. But the biggest one is the one that still stands after today's decision that universities can not only consider race in their admissions but they not only give a balance-tipping preference to, say, black and Hispanic students over Asian and white students. They give a gigantic preference, most of them, to black and Hispanic students. Blacks in particular over Asian students in particular.

TAYLORThe gap at the University of Texas, for example, between Asian and black SAT scores in the class that Abigail Fisher applied for was 464 points out of 2,400, which plays in to the fact that, well, are these black kids really being done a favor when they're put in to a class like that?

ROSENI -- when I listen to Stuart, his book is wonderful. By the way, I want to plug it because it's the most thoughtful account of the possible policy disadvantages of affirmative action in putting students who are mismatch, as he calls it, at universities whether not prepared. He says they would do better at other universities. But these are policy arguments. As a constitutional matter, it would be extraordinarily aggressive for the justices of the Supreme Court to fine-tune affirmative action to do, as he says, socioeconomic is okay.

ROSENA little bit of preference is all right, but not too much. This would represent a tremendous act of judicial activism and would stop programs that have been democratically approved by school boards, by university officials. Justice Breyer has stressed these are programs that University of Texas wanted so much that after courts banned it in 1995, they came up with all these other plans because they think it's important for universities to look like the state.

ROSENThey think that state universities won't have democratic legitimacy. And people like the military filed briefs saying that the military has to look like America or it won't have democratic legitimacy. This may or may not be good policy arguments. But to second guess them on the constitutional basis would be activist in the extreme.

TAYLORI would agree, except very quickly, it is social science evidence and policy arguments in favor of the value of diversity that the court has used this a basis for recognizing an exception to the presumption against the constitutionality of all racial classifications that I mentioned earlier. Therefore, if you're going to use policy arguments to justify this exception, seems to me fair to come back with other policy arguments that say it's no justified.

REHMI have a feeling that we're hearing some of the same kinds of arguments that may have been heard in the court discussions. Let's go to Franklin, MA. Good morning, Zachary.

ZACHARYHi, Ms. Rehm. Thank you so much. I love your show.

REHMHi. Thank you.

ZACHARYI had a question about Justice Ginsburg's descent. She is often -- I once saw her in a speech and she said she was upset that she's often viewed as the weak, funniest justice on the court. But in her defense today, she wrote, I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. And so, I was just seeing that in comparison to her skin (word?) comment in the Windsor case which got a few chuckles. And I was wondering what the panel thought about the role of human in the very serious cases like affirmative action and gay rights.

REHMGood question. Jeffrey?

ROSENGreat question. I'm so glad you stuck up for Justice Ginsburg's wit. Because first of all, she is very funny personally and on the bench. She had a great line last year, not only the milk comment which was great in the health care case. But she said before the health care case came down in the speech to the American Constitutional Society, those who know don't know and those who talk don't know, in terms on what's actually going to happen.

ROSENAnd that study, I think it was -- it's time to revisit it. That study found that Justice Scalia was the funniest justice but only by counting up the number of laughs in the courtroom. So maybe that's not the right standard. Justice Ginsburg's wit is a little lighter. You get some chuckles that might not be recorded properly. And some associates who count up the laughs can't actually record it.

REHMWere you...

ROSENLet's have a recount for the laugh factor.

REHMWere you both there for the arguments?

TAYLORI was there for the arguments. I suspect Jeff was too, yes. And that's one reason, by the way, that the tenor of the arguments, which had four justices picking very hard on the University of Texas is what led people to expect a much bigger decision than we got today.

REHMAnd you're listening to "The Diane Rehm Show." Let's go to Marlboro, Upper Marlboro, MD. Good morning, Arthur.

ARTHURYes, good morning. How are you this morning?

REHMFine, thank you.

ARTHURGood. This whole discussion, actually centers around white entitlement and privilege. There are a couple of things that never seem to come up in the conversation. One is legacy admissions. That is if someone's grandfather or grandmother went to the school, then you get preference. For example, George W. Bush's father and grandfather are graduates of Yale. So George W. Bush, as we all know, is not the sharpest knife in the drawer.

ARTHURAnd I'm sure he did not have one of the highest admission schools. However, because he was a legacy applicant, he got preference and therefore he was admitted. Now, if one happens to be Latino or African-American, they probably don't have a grandfather or great grandfather that can aid them in that regard. And so, therefore, they would never get the benefit of being a legacy admission.

REHMAll right then, I think you've made your point. However, we really don't know what President George W. Bush's SAT scores were.

PAGEWell, that's true. We don't know if he would have gotten into Yale. But Arthur makes a fair point, which is that there are all kinds of affirmative action when it comes to college admissions. One is legacy, did your parents graduate from there. One is athletics. Athletics can give somebody who has a mediocre academic record a big boost in getting into a good school. You know, there's also the kind of affirmative action that just comes from going to an excellent high school instead of a poor high school.

PAGEOr being able to take SAT prep scores as opposed to not being able to do so or whether you have to work during the summers because you need to earn money for your college education or whether you can go do academic enrichment programs. So these are -- there are different ways in which people boost their prospects of getting into the best colleges. And that's certainly a point that supporters of racial preferences make.

REHMStuart.

TAYLORThree quick points. One, I think Arthur makes a very good point. But I think there's a counterpoint that can be made. One, legacy preferences, which I oppose for the reasons Arthur gave, don't have the same toxicity in our society in terms of stirring up resentments and making people mad at each other.

REHMReally?

TAYLORThan racial preferences do.

REHMI think they do.

TAYLORWell...

ROSENDepends on where your dad went to college, absolutely.

REHMYeah, I think they do.

TAYLORWell, I respectfully disagree. I don't -- I'd say the ratio of big stories about racial preferences to, legacy preference is 10 to 1 or more. Second, I think the racial preferences tend to be much larger, creating a problem that I'm talking about. And third, when they're talking about taking wealthy black kids and jumping them over poor Asians who have much better grades and board scores and who also endured a history of discrimination in this country, I don't think saying, well, legacies get preferences too. Quite dispatches the argument.

REHMJeffrey?

ROSENThe difficulty is what does the Constitution granted? So Arthur's point is absolutely right and I tend to agree more with you, Diane, that people might on a populace basis be just as upset about legacy preferences as racial preferences. But the Constitution has special concern with race. And is it fair to single out racial preferences out of all the many ways that you can gain your way into college by having rich parents or taking SAT courses and so forth, and say that's the one thing that you can't get a leg up for.

ROSENEspecially in light of the history of this amendment, which seemed to be passed to do the opposite and to ensure that African-Americans and other minorities got special consideration and compensation. Not that they were uniquely disadvantaged. So the reason this is so hard is that the policy arguments spill into the constitutional arguments. But obviously, the Constitution does not prohibit preferences.

REHMJeffrey Rosen, he's president and CEO of the National Constitution Center in Philadelphia. Short break here. More of your calls, comments when we come back.

REHMAnd welcome back. We'll go right to the phones to Houston, Texas. Good morning, Sarah. You're on the air.

SARAHGood morning, Diane. Thank you for taking my call.

REHMCertainly.

SARAHI had a comment. I am -- I went to the University of Texas for a couple of years after high school. And a friend of mine and I applied roughly around the same time. She was waitlisted. She was white -- or she is white. I am Mexican-American and my grades were not as good as her. I got in immediately. She ultimately did get in but I did want to comment that I was completely unprepared for that university. And my GPA after my first semester was .9 What it -- but I believe that I benefitted from the affirmative action policies that were in place at that time.

SARAHIt did raise my expectation of myself and it made me realize that that was the world that I was going to have to compete in if I wanted to be successful. So I really do believe that we need to keep these policies in place.

REHMWhat a great statement, Susan.

PAGEAnd exactly the kind of story that proponents -- preferences on grounds of race and ethnicity point to. You know we have -- the fastest growing ethnic group in the United States are Hispanics. And there is, I think many people believe, an advantage to having, you know, in a country that is increasingly diverse with Hispanics and Asian Americans and African Americans, to having a well educated and diverse people.

REHMHere's an email from Will in Gaithersburg, Md. who says, "I've not heard anyone address the moral imperative that provided the initial impetus behind affirmative action in the first place. Our nation systematically oppressed all minorities, especially African Americans. And in my view affirmative action is designed to try to write the historical wrongs our country has perpetuated by claiming the Constitution. And laws should be completely colorblind is naïve and ignores history." Jeffrey.

ROSENThat is another eloquent point and it is one that Justice John Paul Stevens who retired recently made with great fervor. He said, there is no moral or constitutional equivalent between affirmative action and programs designed to segregate, integrate African Americans. He said the whole point of the Civil War was to ensure that the former slaves were restored to full citizenship and therefore benign racial preferences should be treated differently than malignant ones.

ROSENJustice Thomas made a remarkable response to Justice Stevens. He said the following, "I believe" -- this is Justice Thomas -- "that there is a moral and constitutional equivalence between affirmative action and slavery essentially," he said, "between laws designed to subjugate and those designed to help." And you sort of ask, what could he have been thinking, because slavery, affirmative action, they seem very different. He must've been saying that the dangers of being stigmatized by affirmative action are so great that they are similar to those -- the stigmatic effect of slavery. But it just shows how strong the philosophical disagreement is on this very question.

REHMHow widespread is that feeling that justice Thomas has? Is he alone in feeling totally stigmatized by affirmative action?

ROSENYou know, I think Susan may have some better poll numbers than I, but I do have one insight to contribute. I've been teaching the affirmative action case for a long time. And I just finished grading my final exams at George Washington University which were excellent.

REHMCongratulations.

ROSENCongratulations to the students because they were very good. But one of the questions was write a memo to Justice Kennedy about how he should decide the Fisher case. You're a law clerk to Justice Kennedy. What do you think? And also do the same thing for gay marriage. I'm struck -- five years ago that sort of question, there would've been more for and against on affirmative action. This year overwhelmingly skeptical of affirmative action. A lot of people really resonated with the fairness idea that the Constitution is colorblind.

ROSENAt the same time the overwhelming majority of kids thought that gay marriage and marriage equality should be a constitutional right, for what it's worth.

REHMSusan, what kind of poll numbers have you seen?

PAGEAnd in justice, see, those two positions are consistent, right...

ROSENYeah, absolutely.

PAGE...that you don't discriminate against gay people on the basis of their sexual orientation. And that you don't discriminate against white people because of their race. So you can see there's an ideological consistency although the one we describe as conservative and one position we describe as liberal. Well, we have seen big changes in public attitudes toward affirmative action.

PAGEThe NBC Wall Street Journal poll asked about this just about two weeks ago in preparation for the court decision that we got today. And they found a perfectly even divide in the American public on the question of affirmative action. Forty-five percent support affirmative action programs and higher education, 45 percent say they should end. Now that does reflect a change in public attitudes. There's been a steady deterioration in support for affirmative action.

PAGEIf you go back 20 years -- 22 years to 1991 it was at its peak of support 61 percent supporting. So it's clear that Americans are -- well, while Americans are now divided in two on the question for affirmative action, the trend is that support for these programs is going down.

TAYLORThree quick points. One, the history of the polling shows that when Americans are asked what do you think of affirmative action, they're not thinking about racial preferences, a lot of them. They're thinking about something else, proactive programs to make sure opportunity -- and the evidence of that is most recently a Washington Post ABC poll within the last couple of weeks in which more than 75 percent of Americans and a large majority of blacks and Hispanics all said race should not be considered in college admissions. There were no loaded words in that. Race should not be considered in wide majority. And that's consistent with previous polls.

TAYLORSecond, I think the argument about historical oppression was a very strong one for affirmative action in the late '60s and '70s perhaps when I was more enthusiastic about it. When you're talking about preferring the privileged children of black doctors and lawyers over the working class and poor children of Asian immigrants, it seems to me it's got a lot less resonance.

TAYLORThird, the court's majority in an opinion by Justice O'Connor in 2003 said in essence, we shouldn't have to have racial preferences for more than the next 25 years. We've been ten years through that. We're on a trajectory to having racial preferences, not only for blacks but for Hispanics, for Pacific Islanders, for black immigrants who get a large percentage forever, or at least it's impossible to foresee a time when the universities will think, okay we've done this enough.

PAGEYou know, this is -- it's not only on the issue of education that we're going to see where the nation stands on race. We're also waiting for a big voting rights decision to come out. Maybe it'll come out tomorrow when the court issues additional decisions. That goes to the same question. In 1965 the nation passed a voting rights act, has the need for the special provisions that it imposed -- the special conditions it imposed on some states, mostly in the South, has a time for that now expired.

ROSENAnd is it up to the court to update our social arrangements in light of these changes? If it's true that whites will be a minority after a certain point, that's a good policy argument for rethinking affirmative action. And maybe the voting rights formula should be changed. But to say in this extremely formalistic way, the Constitution forbids any racial classifications would be so disruptive. Justice Breyer has counted up the numbers of federal and state laws that would have to fall if that position were adopted. That's why it's so significant that even Justice Scalia didn't joint that. Only Justice Thomas took the extreme colorblind position.

REHMAll right. Let's go to Syracuse, New York. Good morning, Adjua (sp?) .

ADJUAGood morning, Diane. Thank you for taking my call.

REHMCertainly.

ADJUAI love your show.

REHMThanks.

ADJUAI just wanted to make a comment. I am a nontraditional African American medical student. I say nontraditional because I'm much older than my classmates in coming into medicine. I'm say a good ten years plus, after working in the field for quite some time. And I know just as a working person, as a person who studied this -- because I have my Masters in public health -- I have watched how medicine and the issues of access for people of color continue to be played out.

ADJUAAnd so I think one of your panelists made the comment that some professions see value in ensuring that there is diversity among their ranks. And I think medicine is a prime example because most of the data shows that those who serve my community are more likely to look like me. And unless that changes, I don't see how you would get rid of the discussion around affirmative action, particularly in admissions for things like, you know, higher professional type jobs.

REHMSusan.

PAGEWell, that's also a very eloquent statement.

TAYLORI agree and I think there is great value in having all of our professions -- all segments of our society racially diversified. If I could just decree that we would have referacial (sp?) proportionality everywhere I would decree it. The problem is, when you relax standards so dramatically in order to get -- to try and approach referacial proportionality, it has all sorts of side effects that I think are unhealthy. The stigmatization of affirmative action beneficiaries, you know, is not quite up to snuff.

TAYLORThe mismatch problem that I mentioned earlier, frustration and failure in competition with other students and the resentment among white and Asians who think they're getting the short end of the stick. I think that if the size of the preferences was reduced substantially -- not eliminated -- all of those problems would shrink.

REHMYou know, Jeffery, Stuart mentioned economic diversity. Let's talk a little about that. Because in a New York Times op-ed on June 9 Bill Keller wrote that following the work of scholars at Century Foundation he said, "I've come to think there may be a better way to accomplish diversity. Namely by shifting attention from race to class acknowledges the idea is controversial." I don't even understand it.

ROSENIt is a powerful impulse. And Bill Keller is relying on one of the leading scholars of class-based affirmative action. Rick Collenburg (sp?) who has argued for using economic advantage instead of race, Collenburg responds to the Fisher case by saying, this case could lead to a progressive public policy response, more consideration of economic disadvantage.

ROSENHere's the problem, although it makes a lot of sense as a matter of fairness. Justice Alito said this in the oral argument too, why are you giving a leg up to the kids of well to do minorities and not to poorer kids of all backgrounds? Universities that have tried class-based preferences, including the University of California, after California voters banned affirmative action in the 1990s, found that they were getting lots of poor kids who were the sons of Russian cab drivers for example or immigrants from the Ukraine. Lots of poorer white kids and were not getting a lot of poorer African American kids.

ROSENSo the bottom line is that economic disadvantage makes sense but it's not a proxy for racial diversity. And if you engage in it you're going to have many fewer minority students than universities think is appropriate.

REHMStuart.

TAYLORYou would get -- if you had no racial preferences and some socioeconomic preferences, you would get some black and Hispanic kids who you wouldn't otherwise get through that. You would also get just the numbers show less of a gap in academic preparation between...

REHMHow do we know that?

TAYLORBecause there's huge numbers of statistics on who's coming out of high school. And, you know, for example the scores of poor white kids are often better than the scores of rich black kids. And poor Asian kids better than the poor white kids. So I think that's a statistical fact. And also you'd be doing, for that reason, less damage to academic credentials. But most importantly -- standards I mean -- what is better for diversity -- intellectual diversity in our campuses, which is the basis for the Supreme Court's upholding this.

TAYLORIs it better to have the child of a black doctor and lawyer, other things equal, or the child of an Asian cab driver? I think that there's -- socioeconomic diversity has great value. And I don't think it ranks next to racial diversity in that regard.

REHMAnd you're listening to "The Diane Rehm Show." Let's go to South Bend, Ind. Hi there, Kate.

KATEHi. Sorry. Hi. I just wanted to mention -- because earlier when I was listening to the show this morning I heard callers and to an extent the panel, I believe, commenting on -- or focusing on the idea of not understanding why so many white qualified students are being quote unquote "disadvantaged or discriminated against." And I think it has been brought up now by this point. But the idea that -- this whole idea of fairness is just largely something that I believe is a misleading term and it's just not the case.

KATEWhat actually exists is institutionalized racism. And to talk about fairness in the way that we are and what discrimination matters is not exactly the best way to talk about the subject, I believe. And a feeling of entitlement to the college education is, I think, part of the problem that has not been brought up completely. And so I just wanted to address that issue.

REHMI'm not sure. Do you understand her point, Jeffrey?

ROSENThat it's just not fair. That basically it's the formal neutrality point that my students I think were grasping at, that really equal protection means equal protection. I -- it's not a colorblindness point. It doesn't single out race for special different treatment, but basically says every individual should be treated on his or her own merits. And there should be no adjustments made. It is a powerful point of justice. The thing is it's difficult to locate in the text and history of the country.

REHMSusan.

PAGEWell, and of course we're a nation with a legacy of slavery. And is that -- is the impact of slavery over? Is that a legacy we're still dealing with or not?

REHMOr is it institutionalized within the society ongoing?

PAGEAnd this is going to be addressed directly in the Michigan case that the courts now accepted, right. I mean, that's a question of where voters in Michigan ban racial preferences in admissions to the public universities. And the issue before the court is, does that violate the federal constitution, the equal protection clause? So we're going to revisit this issue next year.

REHMExactly, next year. Stuart.

TAYLORThat's right. This is an H7 vote of the U.S. Court of Appeals for the 6th Circuit striking down Michigan's constitutional amendment opted by the voters. Striking it down on the grounds that requiring equal treatment of everyone according to race violates the federal constitution's guarantee of equal protection of the laws.

TAYLORNow, to me, this is kind of a Orwellian. And I would hope that the Supreme Court will reverse that by a very lopsided majority. I think it shows also how polarized we've gotten about this. The eight justices and the majority who struck down the voters' amendments were all appointed by Democratic presidents. The seven in the minority were all appointed or nominated at least by Republican presidents.

ROSENWhether you view it as a Orwellian or not, I do not expect the court next year to be as unanimous as it was in this case. I would be very surprised if the conservative justices in fact struck down that amendment, because they do tend to embrace the more formal idea of neutrality. So we'll be back next year and that's when we're really going to have an affirmative action blowout.

REHMAnd of course we'll be back, I'm sure, later this week with questions that the court is dealing with on voting rights and on the Defense of Marriage Act. Jeffrey Rosen, Susan Page, Stuart Taylor, thank you so much.

PAGEThank you.

TAYLORThank you.

ROSENThank you very much.

REHMAnd thanks for listening all. I'm Diane Rehm.