- [Kelly] The U.S. Supreme Court issues two rulings focused on North Carolina.

The first addresses whether our state courts have any business in congressional redistricting, and the other involves UNC's admissions policies.

This is "State Lines".

- [Announcer] Quality public television is made possible through the financial contributions of viewers like you, who invite you to join them in supporting PBS NC.

[dramatic music] ♪ - Welcome to "State Lines", I'm Kelly McCullen.

What a panel today!

Here in the nick of time, our good friend and Campbell Law School professor, Rick Glazier.

- Good to see you, Kelly.

- [Kelly] I'm so glad you are here today.

- Well, thank you.

- [Kelly] For a couple of very good reasons.

Senator Natalie Murdock represents Chatham and Durham Counties.

- Hey.

- A frequent contributor to "Black Issues Forum" here on PBS NC.

Thanks for coming over to this show.

Good to have you here, Senator.

Representative Jeff Zenger, Forsyth County.

Always good to have you.

First time on, not the last time.

And Pat Ryan- - [Rep. Zenger] Thank you.

- Who is a public relations consultant, and has been in the trenches at the General Assembly for quite a few years.

Great experience, Pat, good to see you.

- Thanks, Kelly.

- All right, well Rick, I want to set this up with you.

The U.S. Supreme Court has ruled against the University of North Carolina's admissions policies.

It happened this week.

The majority ruling ends the use of race-based metrics in weighing student applications.

UNC'S admissions policies, and Rick, as I understand, similar policies nationwide, will now, in public universities, will violate the 14th Amendment's Equal Protection Clause.

The dissenting opinion points out racial considerations have affected a small number of applicants, in the UNC case at least, maybe as few as 1.5% of UNC's 43,500 applications.

Up at Harvard University, their admission standards that were related to race were tossed out for slightly different reasons, I think racial discrimination on that claim, as a private university.

I don't know if I got that exactly right.

Very confusing, Mr. Glazier.

PBS NC is part of the UNC system.

We don't admit students, but we are part of that family, so I want to disclose that.

Tell me about this.

Is this the end of what we know commonly as affirmative action?

- Well, let's talk about what the Court did.

We'll talk for a minute about what the dissenting point of view was, and then sort of all the open questions that are left as a result of it.

The Court, 6 to 3, in an opinion by the Chief Justice, eliminated the consideration of race in college and university admissions processes as a violation of the 14th Amendment Equal Protection Clause.

And it struck down race as a plus, which is how it's sort of considered, in different ways at Harvard and UNC Chapel Hill.

It overturned, in doing that, several decades of decisions that had allowed a narrow use of race to meet a compelling governmental interest in creating diversity in enrollment and benefits and educational benefits at colleges and universities in the Bakke decision, in the Grutter decision out of Michigan, and the Fisher decision out of Texas.

Three justices dissented pretty bitterly, indicating that they believe that this rolled back decades of progress.

I think Justice Jackson sort of summed it up as well by saying the Court pulled the ripcord of colorblindness by creating it, that doctrine by fiat legally, but that's not gonna translate into real life, and that it avoids the real race issues that continue to plague the country.

So the question becomes, we know now that in public and private universities, Harvard being a private university, that race as a plus, even in a holistic way, cannot be overtly considered by the admissions process.

But the Court left open some tools to continue to look at increasing diversity and keeping diversity in colleges and universities.

And the dissent talks at length about the utilization of those tools.

They include, for example, a student can, in an essay for admission, talk as how race has affected their life, as it relates to their character, as it relates to characteristic, as it relates to their journey.

- [Kelly] They can share that with the university.

- They can share that with the university.

- Okay.

- But the university can't create a race-based question as an essay question.

So that's sort of an open area of what that means.

You can create, universities appear to be able to create first-generational policies, in giving preference to first-generation students coming in, as opposed to continuing or expanding legacy programs.

They can consider income of families.

They can consider geography of high schools.

So that there are ways to look at diversity.

But I think every expert would tell you they are not gonna get you the same place we are now.

There is no question that the consideration of race has been diminished- - Okay.

- As a factor.

- Well, Senator Murdock, this affects someone in all, as we record this show in Resource Triangle Park and you're in Durham County, right next door.

Your thoughts on this ruling?

- It does, and hits close to home.

I went to UNC Chapel Hill for undergrad, finished in 2007, and was honored to attend the flagship university of our state as a North Carolina native, daughter of the South.

And also have to lift up my parents that were baby boomers, and have no doubt, my father went to a predominantly white university, Springfield College in Massachusetts, and I'm sure that that was a factor.

You know, my parents were kind of that first generation that really benefited from, you know, Brown v. Board of Education, and just being really intentional about integrating our schools.

And the professor, as he mentioned, even when you look at geography, you know, I think so much focus has been given on race, but no minority is a monolith.

And so I had colleagues who were African American, Hispanic, who were from, you know, Pollocksville, North Carolina.

I didn't even know where that was.

But they were the valedictorian of their class, and excelled, did well at UNC.

And have to say myself, I was in the top 10, if not 15, of my class in high school, and had great grades and deserved to be there.

And so I think that what we forget about affirmative action is it doesn't mean that folks of color that are unqualified are getting access; it's simply saying we want to give you the opportunity and it's up to you to remain there once that door has been opened.

And so, very very disheartened by this ruling.

- These lawsuits in Harvard and UNC, they were filed by a group representing Asian Americans, right?

- Yeah, yes.

- So we have a group of color and they're saying it went too far with affirmative action.

- And that it was depriving them of admission spots.

You know, Justice Jackson had, in her dissent, and a brilliant dissent actually, highlights the difficulties of this, right?

And she talks about two students.

One is, I think she refers to as John, and the other is James.

And John is a seventh generation UNC admittee, white.

James is a first generation, black.

And should the admissions process in a holistic way be able to consider all of the advantages and disadvantages and the life journey that led them as 18-year-olds to apply?

And how do you subtract race from that when race has been just a predominant factor of American life?

It's not so easily segregated out.

It's a highlight point of what colleges and universities now are gonna have to think about, about how they continue to strive for the compelling governmental interest of diversity, but have to do it through different means, and in some ways a little subterfuge might occur to still get the same kind of demographic that we want for our leadership.

- But subversion is very much frowned upon, and part of a lot of the legislation we've seen represented is because groups are subverting state law and certain political parties opinions.

Your opinion on this law, how does UNC get it right?

Because there's millions of people here, and there's millions of different kinds of people here, and those different kinds of people deserve a shot at UNC Chapel Hill if they want to attend.

- So I look at it a little different perspective in that, my first thought was, "Well, how can this be a positive?"

When I think of Dr. Martin Luther King's "Dream" and he said, "I long for the day when people are judged by the content of their character and not the color of their skin."

You know, at some point we gotta start to make that step there, and so my hope is that's this step.

As you so well pointed out, you are more than qualified, well, end of story if you're more than qualified.

And so my hope is is that we will start to see us move more towards that dream that Dr. King was talking about, where we judge people just on the content of their character.

- Senator Murdock, let me ask you about that.

Will you open this up?

If you want to make sure we have diversity and there's the minority applicant from a rural area, do you see this coming at the expense of out-of-state students?

North Carolina can open slots on their campuses- - Very true.

- But by putting a wall around their own state borders.

That's me asking that question, but it seems intuitive.

- Yeah, I think that we still live in a world, we're not in a post-racial world, we're in a race-neutral world.

Unfortunately, some of that has come up in our own Florida base, with our own colleague, Representative Abe Jones, and you know, his Ivy League credentials were questioned.

And so I think that we're still in a space where if those admissions standards that are very complex, you have to figure out what mix is right for your university.

Your point about out-of-state students here in North Carolina, we pride ourselves on saying, if you are in-state, we want you to look at our state institutions.

And so I think that we can figure out how to get that mix right, but I think that should be up to those universities to say these are our values and we want to be able to look at all of that as they're making those admission decisions.

- What about HBCUs?

- Yes.

And actually, you're saying that HCBU's, I love that question.

I'm from Greensboro, North Carolina and North Carolina A&T, and folks actually forget the diversity you have at HCBU's.

You have a number of folks who are not African American that are graduating from all of our HCBU's.

You also have UNC Pembroke, so that's why we also use the term minority-serving institutions as well.

So you have a lot of that here in North Carolina.

- Representative Zinger, you had a comment.

- Well I was gonna say, in reference to Abe Jones, anybody that knows Abe Jones, he is absolutely brilliant and he's one of my colleagues that I admire the most and am great friends with and so I just was gonna add that.

- Well one thing to point out about this opinion that we just sort of mentioned, does the opinion, for example, bar a program that a university puts in to try to recruit people of color into professions, like doctors, in rural areas.

And it's unclear whether you can have a program that does that under this decision.

And so I think it's the kind of thing that'll be the next line of questions.

- Pat, jump.

- Yeah, so I think there are a couple of strains of thought here that I find most compelling, not being a lawyer certainly.

Mr. Glazer, you'll school me on that, but I'll just touch on two.

So Kelly, you mentioned the lawsuit was brought by a group representing Asian Americans.

The majority opinion I think pretty well pointed out that college admission is a zero sum game.

There's a finite number of slots, right?

So a plus for one person based on his or her race is a minus for another based on his or her race necessarily.

And so affirmative action policies at UNC and Harvard the data shows pretty compellingly act to stop otherwise qualified Asian American applicants from joining that pool even though they likely would be accepted but for their race.

And so to me, that's a pretty big problem for a policy that's pitched as a way to improve racial diversity when it keeps one type of race out of the applicant pool or at least out of the admitted students pool.

And the second is I think an order that's been advanced by John McWhorter at Columbia University and Glenn Loury at Brown University, who both came to UNC to have this debate about affirmative action in November 2022.

And how Loury put it was, "that the criteria of assessing excellence would be differentiated in their case, made lower, less exacting and more forgiving."

He says that is not a path to equality.

And so you have this separate strain from pretty prominent black scholars at Ivy League universities arguing that we shouldn't be treated differently or considered less or given a less exacting standard simply because of the color of our skin.

I find that to be a pretty compelling train of thought as well.

- You know one of the things that Justice Jackson says in her dissent, and I think it's telling, is that the majority opinion doesn't dig down deep enough into the District Court's findings about the statistics regarding the use of race at Chapel Hill as an example, where at Chapel hill, there is a race plus component at the end of sort of all of the admissions criteria, but not just for people who are black.

It was for people who were Asian Americans, it was for people who were Latinos.

There were lots of categories that could get that plus, not just people who were African American.

Secondly, if you looked at the admissions data at Chapel Hill, there were a lower percentage of the highest ranking African American students admitted compared to Asian American students and white students.

And so there really was an attempt by Chapel Hill, whether it was fully successful to holistically look at the full student.

And I think an assessment of all the data would suggest they were trying their best to accomplish that.

- And I do have to add quickly, just anecdotally, while I was at UNC and then after my time there because I keep up with students there, particularly with black men, their numbers actually did decrease.

And so I think you have to really dig into those numbers a little bit more.

And also would be remiss if we did not bring up what also came up in this decision is you still have those legacy admissions.

And so we cannot look over the fact particularly when it comes to the Yales and the Princeton's, since the beginning and the founding of those institutions overwhelmingly white.

And so you still do have affirmative action but it's affirmative action for, legacy applicants are overwhelmingly white and male.

I don't have access to any legacy application of any sort as a result of that.

And so we can't skip over with the zero sum game.

Some of those spots are limited because you're going to continue to admit those legacy applicants.

- And final word.

Simple question for a law professor.

When the Supreme Court issues a ruling, is it instantaneous from the time that decision is released publicly that that takes effect?

Or is there a grace period?

A lot of folks don't know how that works.

- No, this ruling is effective immediately and some rulings are not.

But this one is.

- All right.

The US Supreme Court rejected North Carolina Republican arguments that state courts shouldn't have judicial review powers over congressional redistricting efforts, at least theirs.

The former North Carolina Supreme Court's Democratic majority ruled the 2020 congressional maps for unconstitutional partisan gerrymanders.

The current Republican majority led state Supreme Court has since overruled that opinion and have opened the door for new districts in time for the 2024 election.

The majority opinion confirms state courts have judicial review rights, but not "free reign to take over redistricting efforts."

And it also seems, Rick, the US Supreme Court is holding back just a bit of power for itself in case they need to way back into this issue for other states, for other times.

- Well, this was an important decision along with the decision a few weeks earlier out of Alabama that upheld section 2 of the Voting Rights Act.

- You better keep this one very simple.

'Cause this is complicated for those of us who've researched it.

- So I'm gonna keep this as simple as I can.

The argument was, by the Republicans in North Carolina that the elections clause of the federal Constitution essentially gave full redistricting power and congressional redistricting to state legislatures, which in their mind eliminated the ability of state courts, state supreme courts, to review that redistricting for any violations of state constitutional law or statute.

That was called the Independent Legislative theory, Independent Legislative Redistricting Theory.

That was rejected soundly six to three.

Justice Kavanaugh justice Barrett, chief Justice Roberts joining the liberals and said that judicial review, which goes back to Marbury versus Madison and the founding of the Republican and state constitutions prior to that, gives state supreme Courts the right to look at congressional redistricting by state legislatures to see not only does it comport with federal law, but does it comport with state constitutional law, within reasonable bounds.

And I think it won't have much effect in North Carolina because in North Carolina the new Supreme Court has reversed the old Supreme Court's decision regarding partisan gerrymandering.

But it will have an effect in a number of other states across the country to provide a check and a balance, so that the state judiciary does have a role to play in supervising the redistricting process.

- Representative Zinger worth the ask from Tim Moore to see let's settle this case once and for all, so you know where redistricting can stand, right?

- Right, but I think the professor has so aptly pointed out, this is not over, I mean, I expect that, we're gonna continue to have wrangling.

I think there are some of us that were really kind of hoping that at the end of the day we would have a ruling that would just finalize things and all this would stop.

And my gut tells me it will not.

And you're talking to a guy who's lived in the same place for 30 years and been in five different districts.

- Yeah, I think that's an important takeaway.

And if you go back to 2000, right, and I was just in middle school, sorry, but the Florida Supreme Court and the Florida legislature were at loggerheads over how to proceed in a contested presidential election, right?

The Supreme Court, US Supreme Court, came in and settled that question and in the process earned itself pretty severe accusations of partisanship and illegitimacy.

I think one takeaway from this ruling is that is likely to happen again, because there is still this unsettled question of who has primary authority in deciding election rules in states?

Is it the judiciary or the legislative branch?

And at the end of the day, folks on the left are sort of hailing this as a victory, but recall the US Supreme Court will still, as it did in 2000 under this ruling, have the full power and empower itself to to call elections when they're in question, at the end of the day.

Maybe that's the best way and the only way really to resolve these types of issues.

But it doesn't resolve that question that's lingered for 24 years.

- Senator Murdoch, was this a victory for I guess democrats?

- I wouldn't say for Democrats.

I would say for democracy.

Ironically, late last year, I was actually in DC at a national bipartisan election convening and this was the topic of the day of North Carolina and this case with how much independence would you give state legislative bodies?

And I think if anything it's a win for democracy because we do need those checks, as the representative just mentioned.

Particularly in North Carolina our maps have been drawn so many different times.

I've served for three years and I'm under new maps myself being a new senator.

And we do need that check.

We do need that legal remedy to say, if we think there's an issue with our maps you should be able to go to the court, particularly the state Supreme Court to say, "We want you to give this another look."

And I think we, for me, I was cautiously optimistic, but did kind of see it coming with the opening arguments.

You could see justices felt that the concept as presented in this case went a little too far.

So I thought at best if they did move forward with it, it would be a narrow view and version of it.

But it is just a first step.

Obviously, other cases can come before the court.

But as I think in my opinion, the court did make a ruling so that as we get ready for 2024, when you have state legislative bodies across the nation that will be revisiting their maps, North Carolina included, at least we do have a ruling that does say there should be some sort of checks and balances in regards to state having the final say over federal election law.

- Rick, at what point does the sheer volume of lawsuits and the whipsaw effect of redistricting that those actions hurt democracy more than having a partisan drawing of districts?

'Cause there was a time the Senate Democrats ran this state.

- For what, a hundred years.

That's partisan.

But it wasn't illegitimate.

They were elected based on how they drew their boundaries.

- Yeah, I mean, I think that's a very legitimate question you're asking, like the representative and senator said, when I was in the legislature for 13 years.

I had three districts and, and vastly different ones.

And I think that the public deserves the right to have compact, contiguous, consistent districts.

I think both parties have been guilty over the years of significant gerrymandering.

And I think that's not a healthy thing.

And I think it's not a healthy thing for good governance.

And I think that the public, once redistricted and reform, I think they wanna understand that their district lines are not gonna change with each election cycle.

And I think that they want consistency and representation and stability in that representation.

- All right, well we got time for one more topic.

The House and Senate have approved some very tight limits on allowing minors to receive gender reassignment surgery or gender conforming medical treatments.

Under legislation, minors will still receive any gender reassignment treatments if they're actively receiving them now.

Doctors could not prescribe puberty blockers or gender reassignment surgeries for minors.

Those would end.

Exceptions would be made for medically confirmed physical abnormalities or genetic conditions.

And if doctors choose to subvert the process, they would lose their license under the terms of the legislation.

Minors who undergone gender reassignment surgeries could sue for damages until they're 43 years old, Senator Murdock.

- This is a-- - A chance kids will attempt to hurt themselves because of the impacts of this bill.

It's a guarantee and it will be on you.

- You can't vape under the age of 18.

You can't drink under the age of 21.

You can't gamble under the age of 21.

So why in the world would we let children be mutilated under the age of 21?

It's ridiculous.

Okay, and we say, well, maybe the parents should be able to decide.

Really, parents don't always know what's best.

- Senator Murdock, both sides of this debate are charged up.

And you can be that fiery in a legislative committee.

It's not the most respectful tone.

I know people like you that are elected to state office don't like being talked to that way.

Is that helpful when you hear both sides with that much energy behind it?

'Cause I think both sides are very firm and they're very passionate, and they deserve a chance to be heard.

- It is, we do need to hear all sides on this issue.

And honestly, I would just begin with how we got here.

This isn't something that was done in isolation.

We have seen a national trend to move forward.

Legislation that I believe is very divisive, not only for folks that agree or disagree with the ability to receive gender affirming care that I believe folks should have the right and access to, but also dividing the LGBTQ plus community.

I think particularly in this legislative session, we've seen a laser focused on those that identify as trans.

And I have to lift that up because it is a difference.

I think it is a national strategy and you've seen it.

That's why you see folks coming to the general assembly, making those appeals to us.

But I wanna start by lifting up those young people, young people that I've talked to, young people that are in my district, the new part of my district, Chatham County.

The second I would say long form conversation I had with a set of parents in Chatham County was with their child that was going through this, that was in the process of transitioning.

They were very open, frank and honest about what their family was going through.

And I filed an amendment on the bill to say that if we wanna say that you can't do this under 18, what about all the other things that 18 year olds can still do, like get married.

So I don't think that this is the appropriate place and time, quite frankly, to even have this discussion when you have medical societies at the national level saying that this care is appropriate.

- Representative Zenger, I wanna give you the next word on this because it's a big issue.

It is a national issue.

You do see a national trend, and all of a sudden state legislators are all into it.

Is Forsyth Count just bubbling up, demanding gender reassignment surgery bans and such, as we're seeing, and we're reading in our newspapers.

- Well, as you had pointed out, and especially with the clip, it's very passionate.

So, you know, I think every representative and senator has heard from both sides on an extremely passionate thing.

I think the biggest thing here that I see is what this is is a pause, wait 'till you're 18, wait 'till you're 18.

And once you're 18, you know, you have at it.

And so I don't know that that's all that unreasonable and that we ask, there's a lot of things we tell kids that they can't do until they're 18.

But I think that it's bad when people say, "Well, it's a ban."

It's not an outright ban.

It's wait 'till you're 18.

And so, I don't know, when you have so much passion on both sides, it's really hard to work with both sides to come to a conclusion.

I think that the legislature's done the best that they could.

- You got 15 seconds, Pat.

- Oh boy.

Okay, I think it's an international conversation.

So the question for me is the first law of medicine, right?

Do no harm.

The New York Times has even reported there is a dearth of data on long-term safety and outcomes of medical interventions, especially for children.

And that's why you see, it's not just the United States, the UK, Finland, Sweden, Denmark.

These countries are either stopping or pausing these medical transitions for children.

- All right, Pat, thanks panelists.

Thank you, Rick, as always, for sharing your legal expertise.

Thanks to everyone of you watching.

Email your thoughts and opinions to state lines@pbsnc.org.

I'm Kelly McCollum.

Thank you so much for watching and we will see you next time.

[dramatic music] - [Announcer] Quality public television is made possible through the financial contributions of viewers like you who invite you to join them in supporting PBS NC.