MARY LOUISE KELLY, HOST:
The Supreme Court has upended the way colleges and universities evaluate applicants. Quote, "the student must be treated based on his or her experiences as an individual, not on the basis of race," end quote. Those are the words of Chief Justice John Roberts, who wrote for the conservative majority on the court. Well, at one time, Charles Fried might have agreed with this decision. Fried served as solicitor general, and he has taught constitutional law at Harvard Law School for more than six decades. Harvard University, along with the University of North Carolina, were defendants in today's case. I want to note that I graduated from Harvard. And, Professor Fried, I want to welcome you to ALL THINGS CONSIDERED.
CHARLES FRIED: Nice to be here.
KELLY: Now, you have not always been a supporter of affirmative action policies, as I just nodded to there. In a few sentences, why?
FRIED: Well, it's the conflict between the vision spoken by Chief Justice Roberts in another case that the only way to get past discrimination is to stop discriminating and Justice Blackmun in the Bakke case that the only way to cast - to get past race is to use race. And the question is whether, as a practical matter, as a realistic matter, we are entrenching a possibility of a society which will forever be viewed as multiracial, and that is to say where race will count and will put you in a box.
KELLY: So when and how did you change your mind?
FRIED: Oh, on the practicalities of it because even when I was solicitor general and arguing for the vision which the chief justice gives, I would not agree with and did not agree with the extreme version of that, which was expressed by Justice Scalia, which meant that what you had to do, therefore, was only to remedy for the particular person any discrimination that that person suffered. And the government argued and I argued before the Supreme Court that if there has been a generalized pattern of discrimination, then you can't find any particular victims.
KELLY: So as a scholar of many years of constitutional law, whose own thinking has evolved on this issue, what is your reaction to today's decision?
FRIED: I am torn because I embrace the vision of the chief justice that ours should be a society where race is not a significant factor in who you are, what your opportunities are, what your world will look like and what your place in that world will be. That's a beautiful picture, and I think it's an American picture.
KELLY: But you said you're torn. How so?
FRIED: I'm torn because it is a picture that is far from a reality today. And that is the gist of Justice Sotomayor's dissent - that we are very far from that. And we have not necessarily got - moved closer. So the question is, can we ever get there? And being an optimist, I think we can. But being a realist, I know we're not there.
KELLY: Whatever one's politics, professor Fried, whatever one's personal views on affirmative action, do you find the legal reasoning in today's decisions sound?
FRIED: I find the legal reasoning in the chief justice's opinion to be flawed because it does not take into account the fact that this is still a racially divided country, although things have gotten better. And I find that Justice Sotomayor is flawed because she does not recognize what the court recognized many times, starting with Bakke and very much in Fisher...
KELLY: Bakke, just to bring people...
FRIED: Bakke was...
KELLY: ...Into that - 1978-initiated precedent for supporting race-based affirmative action.
FRIED: That's right.
KELLY: Go on.
FRIED: That's right. And that is that this should not be a policy which goes on forever. It's got to have an understandable and a realistic time when it is over.
KELLY: Now.
FRIED: And...
KELLY: Chief Justice Roberts did - forgive me for jumping in. Chief Justice Roberts did, in his opinion, add, this decision should not prohibit universities from considering how race has affected an applicant's life, an applicant's experience. How big a window does that leave open?
FRIED: We will see. We will see. There was - you're asking me as legal scholar. There was a very clear example of this in the Michigan cases of 1906 - 2006, the two - Grutter and Gratz. In Grutter, the law school there, which has only about a few hundred students in each class, had an individualized policy. In the undergraduate school at Michigan, which has thousands in the class, it was played by the rules with a firm 20% by admission for all...
KELLY: Right.
FRIED: ...Minority applicants. Well, that - the Supreme Court struck the undergraduate program down as being a quota and allowed the Michigan one in...
KELLY: OK.
FRIED: ...Because it was individualized.
KELLY: Professor Fried, thank you so much. We will leave it there. Charles Fried of Harvard University. Thank you.
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