UnCommon Law’s 4-Part Podcast Series on Affirmative Action at the Supreme Court

For decades, colleges and universities have been taking race into account as they craft their incoming classes. But affirmative action is now facing its biggest challenge in a generation, and the Supreme Court is expected to declare race-conscious admissions policies unconstitutional.

This season of UnCommon Law explores the major cases that have laid the framework for affirmative action in education. You’ll hear from key players fighting for its survival — and for its demise.

Why did a ruling from the Supreme Court fifty years ago allow the use of race in admissions under the Equal Protection Clause? And why is that same rationale no longer as persuasive? Find out on season 7 of UnCommon Law.

Episode 1: Affirmative Action Faces Toughest Test in a Generation

The first challenge to affirmative action decided by the Supreme Court was the 1978 case of Regents of the University of California v. Bakke. It was the first test of a new movement by universities to try to repair the country’s history of discrimination by making diverse student representation a priority.

When Allan Bakke was rejected by the University of California Davis Medical School, he sued, claiming the school’s admissions policies that set aside 16 spots for minority students violated his rights to equal protection. Would the Supreme Court allow schools to take race into account when crafting their incoming classes?

Episode 2: Diversity on Trial — Affirmative Action’s Michigan Test

In 1978, the Supreme Court allowed colleges to take race into account when crafting their incoming classes. Throughout the ‘80s and ‘90s, that’s what many schools did: To get a diverse incoming class, universities used race as one factor among many.

But some schools get a lot of applicants — tens of thousands of students applying for just a few thousand spots. How do you complete an individualized review of so many people? How do you make sure you consider race consistently across those tens of thousands? Is there a way to streamline the process while still complying with what Justice Lewis F. Powell, Jr. said the Equal Protection Clause requires?

Episode 3: Meet Affirmative Action’s Biggest Foe, Edward Blum

For decades, over multiple decisions, the Supreme Court has been clear: The U.S. Constitution allows colleges to take race into account when they craft their incoming classes. And yet race-conscious admissions policies continue to face attacks.

In part three, we’ll meet the man who has perhaps done more than any other in recent memory fighting to end the use of race in America’s public policies. Will Ed Blum be successful in convincing today’s solidly conservative high court to end affirmative action in education?

Episode 4: Affirmative Action’s Diversity Dilemma Spells Its Doom

It’s been almost 20 years since Justice Sandra Day O’Connor, intentionally or not, set an affirmative action countdown in motion. On Oct. 31, the Supreme Court heard arguments that Harvard and the University of North Carolina go too far in their use of race in admissions. Will the diversity rationale — the heart of affirmative action defenses since 1978 — convince this staunchly conservative court?

Also, while diversity has been the reason affirmative action has survived legal tests — was it ever the best reason, under the Constitution, for affirmative action? Or have advocates been hamstrung by an argument that doesn’t go far enough?

Are race-conscious admissions policies about to fall? Find out in the conclusion to our four-part series on affirmative action at the Supreme Court.

SPECIAL UPDATE: The End of Affirmative Action in College Admissions

The Supreme Court has effectively ended the use of race as a factor in college admissions.

In a 6-3 ruling, along ideological lines, the divided Supreme Court struck down the admissions programs of Harvard and the University of North Carolina, which both used race as a factor in their admissions process.

On this special edition of UnCommon Law, we’ll learn how the court came to its decision. And: Did the majority leave the door open for colleges to still consider race in some circumstances? We’ll learn why some supporters of affirmative action still have a glimmer of hope.

This season of UnCommon Law won the American Bar Association’s Silver Gavel Award for Media and the Arts. The award recognizes outstanding work that fosters the American public’s understanding of law and the legal system. It is the ABA’s highest honor in recognition of this purpose.

Commentary from the ABA Standing Committee on Gavel Awards:

“Bloomberg produced a compelling four-part podcast series about a timely, controversial issue [that was, at time of release] pending before the United States Supreme Court: to what extent may colleges and universities take race into account in making admission decisions? The episodes provide a historical perspective, from the 1960s Civil Rights movement and the call to action that tearing down barriers and declaring that everyone is equal is not enough—society must take “affirmative action” to remedy past ills. The episodes review the Supreme Court’s 1978 decision in Regents of the University of California v. Bakke, where Mr. Bakke, a white male applicant to medical school, claimed “reverse discrimination” led to his denied admission.

The storytelling is serious, even-handed, and avoids cliches. It provides a respectful airing for different vantage points, offering a nice diversity of voices. The journalists do a good job of integrating oral argument audio with contemporary interviews. The explanation of legal principles is clear and accurate, presented in a way relatable to non-lawyers.

The issues addressed in the podcast are timely and important, across law and society. Can race-conscious college admissions policies survive a challenge under the equal protection clause of the Fourteenth Amendment? Is “benign discrimination” acceptable, to remedy past societal discrimination?”

—Steve Chappelear
Member, ABA Standing Committee on Gavel Awards

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