The Supreme Court on Monday ordered a lower court to reconsider a case examining the role of race in university admissions. It’s a case that, in the long run, could have a dramatic effect on education systems throughout the country. Kojo connects with experts to examine the practical impact of today’s ruling.


  • Shannon Gundy Director of Undergraduate Admissions, University of Maryland
  • Sheryll Cashin Professor, Georgetown University Law Center


  • 12:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast: the past, present and future of D.C.'s public library system. We'll conduct an exit interview with outgoing chief librarian Ginnie Cooper. But first, the Supreme Court and the role of race in university admissions.

  • 12:07:11

    MR. KOJO NNAMDIThe highest court in America, on Monday, ordered a lower court to reconsider the affirmative action case Fisher v. the University of Texas. The justices' ruling seven to one that the Fifth Circuit U.S. Court of Appeals did not use strict legal scrutiny when it assessed and upheld the admission program at Texas in its earlier ruling, leaving many questions open about the future use of race as a factor in admissions programs across the country.

  • 12:07:37

    MR. KOJO NNAMDIJoining us to sort through the practical impact of today's Supreme Court action and ponder the questions both answered and left open is Sheryll Cashin. She is a professor at Georgetown University Law Center. She joins us by phone. Sheryll Cashin, thank you for joining us.

  • 12:07:52

    PROF. SHERYLL CASHINThank you for having me.

  • 12:07:53

    NNAMDIAnd Shannon Gundy is director of undergraduate admissions at the University of Maryland. Shannon Gundy also joins us by phone. Thank you.

  • 12:08:01

    MS. SHANNON GUNDYThank you. It's a pleasure to be with you.

  • 12:08:03

    NNAMDIYou too can join the conversation. Call us at 800-433-8850. What role do you think race and diversity should play in college admissions? 800-433-8850. You can also send email to, or shoot us a tweet, @kojoshow. Sheryll Cashin, the court ruled today that a lower court's ruling in this affirmative action case has been vacated and remanded. For those of us who are not lawyers, what does this mean in practical terms?

  • 12:08:33

    CASHINIt means the court has to do it again under the direction of the court. The court has basically clarified what the constitution requires. The universities have a compelling interest in pursuing diversity. But when -- if they use race, they have to do that subject to the standard called narrow tailoring. And Justice Kennedy, in his opinion, made it clear that the court will give deference to the universities on -- sure, they'll say, you know, we will defer to you on the educational benefits of diversity.

  • 12:09:17

    CASHINWe take it -- we take your word on the idea that students get the benefits from being in a diverse classroom, but it's the judges, not the university, who gets to decide whether or not race was absolutely necessary. And he made it clear that the standard is it must be necessary and operative "from the case" -- I have it here -- is -- well, I can't find it. Anyway…

  • 12:09:53

    NNAMDIStrict legal scrutiny?

  • 12:09:56

    CASHINNo, it's not. The...

  • 12:09:56

    GUNDYThe Grutter v. Bollinger case?

  • 12:10:00

    CASHINNo, no. The language from the court is -- here it is. The court must be satisfied that there are "no workable race-neutral alternatives" to achieve the educational benefits of diversity. So what that means is if any litigant, like Abigail Fisher, sues -- or actually we'll just stick with the UT case. The court, on remand, has to look at the record and UT has to prove to the court that there are no workable race-neutral alternatives. And it's going to be -- it may be difficult for them to meet that standard given that they have Texas 10 percent plan, which is race neutral. And they got some diversity so...

  • 12:10:53

    NNAMDIWell, what does strict legal scrutiny mean? I used it earlier apparently incorrectly. What is the standard that the Supreme Court says the lower court failed to meet in its previous ruling?

  • 12:11:05

    CASHINThe have to show that the plan that they used and the way in which race was used was narrowly tailored, i.e., there is no workable race-neutral alternative to get the educational benefits of diversity. The court -- there are five votes on the court for the proposition that it's OK to pursue diversity, that -- that's a compelling interest that universities can pursue that. But the way they go about it, if they're going to race, there has to be no other non-racial way to get the -- to get enough diversity to get educational benefits. Does that make sense?

  • 12:11:52

    NNAMDIWhat happen -- Yeah, it does. What happens now that this matter is back before a lower court? What's the process we follow from here?

  • 12:12:02

    CASHINI believe it's going to go back to the Fifth Circuit, and the Fifth Circuit -- the Court of Appeals will make a decision about whether they can apply the standard based on the record before it or whether they have to throw it all the way back to the lower court and retry that question. I suspect the Fifth Circuit will take the record it has and apply the standard. The standard is fairly strict, and it'll, frankly, I think -- think about it.

  • 12:12:35

    CASHINIt's a very subjective standard. Was there no workable race-neutral way to get the educational benefits of diversity? I think it will heavily depend on the predilections and perhaps the ideological leanings of the court that -- of the justices that are applying the standard below. I think it's going to be very difficult.

  • 12:13:05

    NNAMDISheryll Cashin, she's a professor at Georgetown University Law Center. She joins us by phone as does Shannon Gundy, director of undergraduate programs at the University of Maryland. You too can join us by phone. Call us at 800-433-8850. Would you approve of a system like the one in Texas that grants automatic admission to the University of Texas for anyone who finishes in a certain percentile of their high school class? Why or why not?

  • 12:13:30

    NNAMDIShannon Gundy, as someone who's running an admissions program yourself, what were the pieces of this case that you were following the most closely and, I guess, what were the biggest questions that have been answered for you and left unanswered by what the court did today?

  • 12:13:43

    GUNDYI'll start with the second part of your question first. I think there are still a lot of questions unanswered. The good news for those of us who are following the case pretty closely is that the law of the land that came about with the earlier Supreme Court ruling remains in place. So, you know, as long as we are running processes which are meeting the requirements that were outlined in that law, we can still consider race as one factor among many when we're using a holistic application review process.

  • 12:14:16

    GUNDYAnd I think that that is something that makes us very pleased. It is -- it's difficult to do. It's a complex process. But it's something that affirms the mission of the university, and it helps us to do what we've been charged with doing.

  • 12:14:31

    NNAMDIFrom a philosophical perspective, do you and your colleagues at Maryland approach admissions under the principle of the diversity itself is a compelling interest of the university?

  • 12:14:41

    GUNDYAbsolutely. We've done some research to find out, you know, what are the educational benefits of diversity? We found that students sitting in a classroom with people that are different from them in a wide number of factors, including racially different, learn better. And their -- the conversations are more robust. The perspectives that students are bringing to the table are more sound and more rounded out. And it's a part of the mission of the university. So my job in the admissions office, really, is to work to meet the mission of the University of Maryland.

  • 12:15:16

    NNAMDIHere is Amadeo in Washington, D.C. Amadeo, you're on the air. Go ahead, please.

  • 12:15:21

    AMADEOHi, Kojo. Thank you so much. I'm a 20-year-old college student from Washington, D.C. going to school at the University of Maine. And I'm appalled, actually, sometimes by how little interaction some of the kids up there have with anybody from another culture other than white middle-class America.

  • 12:15:41

    AMADEOI think it's severely important that schools be more culturally diverse like that in such a small world. And I was wondering if there were any ways that schools are already preparing to have maybe quotas for different, you know, cultures coming into the schools, place people from different parts of America and so on and so forth.

  • 12:16:03

    NNAMDIThe word quota is a no-no. But, Shannon Grundy, would you care to respond to Amadeo if places like -- places where he's going to school should be making efforts to make sure that there is greater diversity.

  • 12:16:14

    GUNDYWell, my personal belief is that diversity is exceptionally important. You know, if you're sitting in the classroom with people who look like you, who talk like you, who think like you, who have the same experiences, you're not really stretched to learn as much as you possibly could if you have people who have different opinions. So I absolutely think that that is something that's definitely important.

  • 12:16:35

    GUNDYIt's also important to know, though, that each institution have its own mission and is working towards its own goals. The University of Maryland has a part of its mission statement that diversity is a core value, and it's really key to us achieving our mission and strategic goals. That's not the case at every institution. My personal belief is that that's something that should be considered. But each institution does decide on its own the things that are important to it.

  • 12:17:02

    NNAMDISheryll Cashin, Abigail Fisher, a white student, sued the University of Texas after she was denied admission in 2008. What were the specific cases that her lawyers were making against the system that the University of Texas had in place?

  • 12:17:17

    CASHINThe specific arguments they were making?

  • 12:17:20


  • 12:17:21

    CASHINWell, essentially they were -- their argument came down to basically what Abigail Fisher said in her own video. It was very similar to the arguments her lawyers put in her brief, that she felt that other students who had qualifications that were very similar to hers and they got in and she didn't, and her view was that the only reason she didn't get in was because of the color of her skin and that was both unfair and unconstitutional.

  • 12:17:55

    CASHINNow, it is the case that it came out in the evidence that 42 white students with lower test scores and grades than Abigail Fisher got into UT. But the fact that there were five or six, a handful of people -- students of color that also had lower test scores than her that got in, she focused on race and viewed her race as having been the problem. I don't think that it was. I think that she probably just wasn't as competitive as other students. But that's part of the problem with race as a plus factor.

  • 12:18:46

    CASHINIt's necessary in a lot of ways to create a diverse classroom, but it also upsets students like Abigail Fisher. And there're a lot of people in American society who are uncomfortable with the consideration of race, and therefore, justices on the Supreme Court, if they could've convinced Justice Kennedy, who would like to say the state should never be able to consider race.

  • 12:19:14

    NNAMDII think Wanda in Washington, D.C. wanted to underscore your point. Did you, Wanda?

  • 12:19:19

    WANDAYes, absolutely. And I beg forgiveness for this, but this was just discussed on "The Diane Rehm Show" and no one -- absolutely no one -- knew about the fact that there white students who were not as academically strong as this particular person who got into the school and that -- I just find the reporting in the discussions to not include that. That's -- there's no excuse for that.

  • 12:19:49

    NNAMDIWell, Sheryll Cashin certainly included it. And, of course...

  • 12:19:52

    WANDAShe did.

  • 12:19:53

    GUNDYAnd if I could interject here, you know, part of the...

  • 12:19:55

    NNAMDIShannon Gundy.

  • 12:19:57

    GUNDYPart of the problem, I think, is that the SAT scores and ACT standardized tests have been out there for a while. And because it is a concrete objective number, I think for over time, so many people have culturally kind of come to accept an SAT score as merit. And I think if anything comes out of this debate, I hope that we will begin to interrogate that kind of question.

  • 12:20:26

    GUNDY'Cause, really, the only thing a standardized test score predicts, I mean, directly is the socioeconomic background of the parents, of the person taking the test. And I think -- I hope that this whole debate about affirmative action will get both people generally and admissions offices to look at admission practices and scrub away and get rid of practices that are exclusionary and really don't help discern which of this applicant pool comes closest to our mission.

  • 12:21:02

    GUNDYAnd there are studies that show that in the past, affirmative action candidates, even though they may have lower test scores, tend to be the ones that come closest to the professed missions of universities. They tend to say, you know, all universities say they want leaders that are going to give back to their community and, you know, those kinds of things.

  • 12:21:20

    NNAMDIOK. Wanda, thank you very much for your call. Sheryll Cashin, a lot of people felt that the admission system like the one at Texas, where slots, at first, were set aside for the top 10 percent of every graduating class, but later the top 8 percent are sufficient to provide diversity. How common are admission systems like that?

  • 12:21:39

    CASHINWell, there are eight states today that are operating under a ban of affirmative action that was adopted through politics. And California has one of the oldest. And in a number of those states, Texas, California -- I'm not sure -- Florida, those are three that come off the top of my head that have adopted some of these plans. In California, I think, is the top 9 percent and similar in Florida. I don't think that those plans are a substitute for a comprehensive, holistic admissions process that looks at a range of factors.

  • 12:22:22

    CASHINBut I do think the great thing about them is that they're opening up opportunity. There a lot of kids from -- let's face it -- lower-opportunity schools and neighborhoods that are getting into UT. This includes rural white kids that are getting into UT because of these plans that weren't even considered before. So I think it's a useful tool, particularly for a state if the politics is such that race has been banned from consideration.

  • 12:22:54

    NNAMDIHere is Rita in Columbia, Md. Rita, you're on the air. Go ahead, please.

  • 12:22:59

    RITAYes. Hi, Kojo. Thank you for taking my call. As a mom of a freshman at the University of Maryland, and we just went through their orientations program, I can tell you that I saw very little diversity firsthand. Maybe it was that class particularly. But looking at the freshmen profile for the University of Maryland, they have average GPA score of 4.11 and SAT score of almost 1,600. So I think it begs the diversity question about the opportunity for average kids to get into our state school. And...

  • 12:23:39

    NNAMDII'll have Shannon Gundy respond to that. Shannon?

  • 12:23:42

    GUNDYWell, the result of or the outcome of your individual orientation session does not really reflect the -- necessarily -- the diversity of the institution. Students choose the orientation sessions based on the dates that are convenient for them. So it's a case that the university is exceptionally diverse. And we are the flagship institution of the University of Maryland system.

  • 12:24:05

    GUNDYAnd unlike other schools in the university system, our mission is to identify the students that are the best and the brightest. We want that pool of students that are admitted to the university who are best and brightest to also be racially diverse and diverse in a number of other areas as well. It's true that the incoming students, through the University of Maryland, on average have a 4.1.

  • 12:24:31

    GUNDYThat's a little off-putting and a little inaccurate because it doesn't help you to understand that that's a weighted grade point average. And a typical student that's being enrolled at the university has a strong B-plus, A-minus average. In terms of the SAT scores, the middle 50 percent of our enrolling students score between 1260 and 1410 on the SAT looking only at critical reading and math.

  • 12:24:52

    NNAMDIRita, thank you very much for your call. Almost out of time, Sheryll Cashin. But a few years ago, in the case involving diversity, school choice and the school systems in Seattle, Wash. and Louisville, Ky., Chief Justice John Roberts said, "The best way to stop discrimination on the basis of race is stop discrimination on the basis of race." How do you think this informs what people can expect from this court and from Roberts as they continue to look at issues like affirmative action in the future?

  • 12:25:19

    CASHINWell, under the current compasses and of the court, Justice Kennedy, he did sign on to that opinion you just cited. He's in the middle, and he has made it clear today that he does not think that affirmative action is inherently suspect, inherently discrimination. He is willing to allow universities to consider to use race as a plus factor so long as it can survive narrow tailoring.

  • 12:25:55

    CASHINAnd that, you know, universities are going to have to work harder, UT will, too, to show that they need to race in order to get a diverse classroom. And the courts are going to scrutinize that very, very coarsely. And some plans will fail, and some plans will be upheld.

  • 12:26:10

    NNAMDISheryll Cashin is a professor at Georgetown University Law Center. Shannon Gundy is director of undergraduate admissions at the University of Maryland. Thank you both for joining us. We're going to take a short break. When we come back, our exit interview with District of Columbia Chief Librarian Ginnie Cooper. I'm Kojo Nnamdi.

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