Showcase Panel IV: Race in the Law After SFFA

Episode Transcript
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Speaker 1 (00:01):
Sorry that was a little loud. I'm not going to
introduce myself. I think I've done that enough. But I
want to welcome you to our fourth and final showcase panel.
But our fourth and final showcase panel, but yet not
the end of the day. This is our panel on
race in the Law after s FFA. I will thank
in advance all of our panelists, but I want to

(00:22):
thank in advance and particularly welcome our moderator, Judge Lisa Branch.
Judge Lisa Branch serves on the eleventh Circuit and has
since twenty eighteen. More importantly, she is often involved in
Federalist Society events both here and abroad. She's a good
friend of the organization, a good friend of mine, and

(00:46):
perhaps critically, a good friend of my wife's. So with that,
Judge Branch, so thank.

Speaker 2 (00:58):
You, of course to the Federalists Society. Next year will
be my twenty fifth year of involvement with this wonderful organization.
I have enjoyed every moment of it, and in large
part due to in large part due to my friendship
with Dean. I've enjoyed talking with him, planning with him,

(01:21):
coordinating with him, but most of all, my friendship with
him and Luann, they have made this venture together with
the Federal Society even more enjoyable. And I truly can't
thank him enough for all that he has added, all
the value he has added to this organization. And it's
always an honor to have him introduce me before I

(01:43):
begin a panel, So thank.

Speaker 3 (01:44):
You, Dean.

Speaker 2 (01:49):
So in this final showcase panel, we are going to
cover race in the law. After SFFA a little over
a year ago, the Supreme Court issue Students for Fair
Admissions versus Harvard and a companion case against un C
holding the emissions programs of the private college and the

(02:09):
public university, both of which took the applicants race into account,
violated the equal protection clause of the Fourteenth Amendment. Writing
for the Court, Chief Justice Roberts explained, both programs lack
sufficiently focused and measurable objectives warranting the use of race
in a negative manner, involve racial stereotyping, and lack meaningful endpoints.

(02:35):
We have never permitted admissions programs to work in that way,
and we will not do so today. The Court's pronouncement
is succinct and definite. But the Court continued acknowledging that
there is still a role for race in the admissions process,
and the Court said, at the same time, as all

(02:55):
parties agree, nothing in this opinion should be construed as
prohibiting Universe from considering its an applicant's discussion of how
race affected his or her life, be it through discrimination, inspiration,
or otherwise. But the Court ended with a final warning,
universities may not simply establish, through application essays or other

(03:19):
means the regime we hold unlawful today. What cannot be
done directly cannot be done indirectly. After the opinion was issued,
Harvard un c and college and universities across the country
issued statements in response to the opinion. Harvard's reaction was

(03:40):
shared by many. Harvard said, in the weeks and months ahead,
we will determine how to preserve, consistent with the Court's
new precedent, our essential values. What does preserving our essential
values in the admissions process look like going forward? How

(04:02):
will college, colleges and universities comply with this decision and
will litigation follow their efforts? What will the racial composition
of campuses look like in a post s FFA world.
Our distinguished Panel will address these issues during its discussion.
I'm going to briefly introduce our panelists in the order

(04:25):
in which they will speak. Please note, of course, you
will find more detailed biographies on the website each panelist.
Just to give you an idea of the format, which
should not surprise anybody. They will deliver brief remarks. I
will then engage the panel and discussion before we turn
to the audience for questions. Let me start with Professor
Kyle Rosima. He is a professor of law and co

(04:46):
director of the jdphd Program and academic placement at Northwestern
Law School. He also taught at Washington University School of
Law and Chicago Law He has a jd from Washington
University Law, as well as a PhD in economic from
Cornell and a BS in mechanical engineering. Earlier this year,
he published a working paper which examines how racial diversity

(05:09):
in US law schools changes after affirmative action bans. In particular,
he looked at twelve state level affirmative action bans, and
he's going to discuss the result of results of his
paper today. Professor Sonia Starr is a professor of law
and criminology at the University of Chicago Law School. She

(05:29):
previously taught at Michigan Law, the University of Maryland, and
Harvard Law. After she graduated from Yale, she clerked for
then Judge Merrick Gartland of the DC Circuit, and her
research focuses on the criminal justice system and on discrimination
and disparity. She will discuss what SFFA left open and
how we should evaluate whether what universities are doing now

(05:53):
is permissible post SFFA.

Speaker 4 (05:57):
And now the man who.

Speaker 2 (05:59):
Is causing me to from now on call everybody by
their first names. Professor Professor Peter Arcityacono. He is a
professor of economics at Duke University. He received his PhD
from the University of Wisconsin Madison in nineteen ninety nine,

(06:19):
and he's best known for his work in college major choice,
affirmative action, and higher education. He served as an expert
witness for the plaintiff in sffav Harvard and the other
the companion case against UNC, and he examined the role
race played in the admissions process at both institutions. He
is going to discuss the importance of the SFFA cases

(06:42):
for discovering how racial preferences operate and the size of
racial preferences in the past, as well as the different
reactions by schools to the case. And finally, last but
not least, Professor David Bernstein. He holds a chair at
the skill A Law School. He teaches constitutional law, evidence

(07:03):
and products liability, and he is the executive director of
the Liberty.

Speaker 5 (07:06):
And Law Center.

Speaker 2 (07:07):
He is a prolific author and has written two highly
rated books which might be of interest to this audience,
Rehabilitating Lockner and Classified, The Untold Story of Racial Classification
in America. And he is also a blogger and I
follow him on Twitter. He will argue that in the

(07:27):
aftermath of SFFA, we should reconsider the racial classification system
imposed by the government in the late nineteen seventies, with
the goal of having it fade into insignificance to one's
life one's life prospects. And now let me turn it
over to Kyle.

Speaker 5 (07:52):
Well. Thanks.

Speaker 6 (07:54):
Most of my research uses data to study different aspects
of the legal profession. In the project I'm going to
tell you about today, as with Rick Brooks since Rassanga,
where we document trends in racial diversity in US law
schools and we estimate the impact of state level affirmtive
action Bans on Racial Diversity. Let me start by telling

(08:15):
you where the data comes from. So that ABA has
a publication each year going back to nineteen eighty. So
here's a snapshot of one of the pages. And so
for each law school and each year it lists how
many total students there are in the first year, second year,
and third year. And so this first number here is
the number of all students in the first year. So

(08:37):
the next number is a number of women's students, and
the final one is the number of minority students. And
so what we did is we collected this data from
nineteen eighty to nineteen or twenty twenty on roughly two
hundred law schools. And so we also I'm going to
show you some stats about the diversity of the country
overall and of college grads.

Speaker 5 (08:59):
These are just the These.

Speaker 6 (09:00):
Just come from census tables, okay, just to get an
idea for the geographic distribution of diversity. And so in
white so we basically say what states have roughly the
average the average diverse student body. Blue is more diversity
and red is less diversity than the average state. So

(09:23):
you can see here as right, states like California, Texas,
mostly in the.

Speaker 5 (09:27):
South have.

Speaker 6 (09:29):
Law student bodies that are more diverse on average over
the entire period we study. And so the first thing
we do in the paper is we document trends in
racial diversity. And so what I'm going to show you
here is just the minority share across all law schools
over time and so on. The X axis is just
the year, and so you can see here the minority

(09:53):
share of law students increase from around ten percent in
the nineteen eighties to almost thirty percent by the end
of our sample. So if you compare this to the
population share, population share increase from around twenty percent minority
share to about forty percent. And so if you compare
the two and look at the increase over time, right,

(10:15):
there was a twenty percentage point increase in the minority
purity share.

Speaker 5 (10:18):
Of law students.

Speaker 6 (10:19):
There's roughly a twenty percent minority share of the population.
And so what this means is that changes in the
minority share of law students since nineteen eighty roughly tracked
changes in minority share of the population, but it didn't
catch up at all. Right, It's always been roughly the
same percentage point difference between the two. We also compare

(10:40):
law students to recent college graduates. You have to go
to college to go to law school, and so among
recent college graduates we see roughly similar.

Speaker 5 (10:52):
Trends to the population overall.

Speaker 6 (10:56):
Okay, so our data identifies for each law school the
minority share share, and so the overall trends I just
showed you really masked differences between law schools. And so
we're able to use the data on law school level
minority shares to document differences in minority shares across.

Speaker 5 (11:13):
Law schools over time.

Speaker 6 (11:15):
And so what I'm going to show you here is
the percent of law schools that have different minority shares.
And so what this shows you, hear, is what percent
of law schools have at least thirty percent minority share
at the law school in that given year.

Speaker 5 (11:30):
Right, And so you can interpret this.

Speaker 6 (11:32):
In the nineteen eighties, less than five percent of law
schools had at least thirty percent minority share. By the
end of our sample, forty percent of law schools had
at least thirty percent minority share.

Speaker 5 (11:46):
Right now, So if you.

Speaker 6 (11:48):
Add up both areas here, this tells you what share
of law schools had at least twenty percent minority share,
right and you can see here less than ten percent
of law schools in the eighties, and now more than
seventy percent of law schools do by the end of
our sample. Right, you can continue breaking this down. What

(12:08):
about the other side, right, And so if you look
over here, in the early nineteen eighties, sixty five percent
of law schools had less than ten percent minority share.
By the mid nineteen nineties, this become less than twenty
percent of law schools. What about the very extreme and
so in the nineteen eighties, roughly thirty percent of law

(12:32):
schools had less than five percent minority share. By the
mid nineteen nineties, there are basically no law schools with
less than five percent minority share. Okay, I'm gonna show
you point out one last thing here. And so if
you look at differences across racial diversity even today, across

(12:52):
different law schools, you see massive differences.

Speaker 7 (12:54):
Right.

Speaker 6 (12:55):
So, there's ten percent of law schools that have less
than fifteen percent minority share. Right now, think about double that,
So there's forty percent of law schools that have more
than thirty percent minority share.

Speaker 7 (13:08):
Right.

Speaker 6 (13:08):
So, even today, there's big differences in racial diversity across
law schools. Okay, this was just the raw data, just
plotting it for you. The main part of the paper
studies state level affirmative action bans on racial diversity. And
so starting with California in the nineteen nineties, they passed

(13:29):
a state level affirmative action ban for public law schools
in the state. I'll tell you a little bit more
about which law schools in a second. A couple other
states also had affirmative action bans in the nineties. Moving forward,
so in the two thousands, we get a few more
states banned affirmative action in public universities, including law schools,

(13:51):
a handful of other states in the twenty tens as well.
So we're going to study each of each of these changes.
So we're able to use twelve different state affirmative action bands.
There's almost we're able to study almost twenty law schools
in those states. And so here's just a breakdown, just
to give an idea. We have, you know, some law schools.

(14:13):
So the tier here are just based on US News
Law school rankings, right, So you have some Tier one,
which we refer to as Top fourteen law schools like Berkeley.
There's some Tier two schools like UCLA, and University of Texas.
Here's the changes since two thousand, right, another Tier one

(14:37):
Michigan is in here. A lot of the states we
study just have one law school that we're going to
be studying. And so what we do is we estimate
what's called differences and differences framework. I just want to
show you the work through the intuition on how we're
actually going to estimate the impact of these state level
bands on diversity. And so what we use is called

(14:59):
a stacked event study this sign and I'll explain where
that term comes from in a minute. Okay, So we
have different events, right, and so this is just whether
a given law school can no longer use affirmative action
it admissions. It's what we do is we go event
by event and we construct the treated group and a
control in a set of control groups. So take the

(15:20):
Berkeley event in nineteen ninety eight. What we're gonna do
is look three years before the event, five years after
the event.

Speaker 5 (15:26):
And go look for a control group.

Speaker 6 (15:28):
It's what we do is we use control other law
schools within the same tier. And so Berkeley and Michigan
there tier one. So we're only going to use other
Tier one law schools as the control group. So for
this one Berkeley event, we're going to say, Okay, the
control group are going to be other law schools other
than the ones that are treated at some point. Right,
So we're not gonna use Michigan as a control group

(15:49):
because University of Michigan also was subject to a ban
at some point. And so now we have one event
with a set of controls for this one event. So
now we do the same thing for the next event, right, Michigan.
So we looked three years before the event, three years
after the event, go identify control law schools.

Speaker 5 (16:10):
Right.

Speaker 6 (16:10):
So now what's key is we have a bunch of events, right,
each law school can no longer use affirmative action, and
we're going to redefine the time dimension. So on the
x axis here is year. What we're going to say
for each event to find event time, which is zero
for the year that the law school can no longer
use affirmative action. So now the X axis becomes event time.

(16:34):
And this is where the name stacked event study comes from.
We can just stack all the events on top of
each other. And so the way to think about what
we're able to estimate is for each event there's one treated.

Speaker 5 (16:44):
Law school in a set of control law schools.

Speaker 6 (16:47):
We're just going to compare the treated law schools to
the control law schools across all the different events. So
here's the main results. So the x ax is here.
This is the event time. So the Y axis is
the difference betw between the treated and control law schools.
And so in the lead up to affirmative action ban,
the difference is pretty stable. But then in the treated

(17:09):
law schools after the ban, you see this big decrease
in racial diversity in the law schools, and so on
the other y axis here right levels off around seventeen percent.
And so what this means is that when states banned
the use of affirmative action in public law schools, racial
diversity in those law schools decreased by seventeen percent relative

(17:32):
to what we think would have happened if the state
didn't ban.

Speaker 5 (17:36):
Affirmative the use of affirmative action.

Speaker 6 (17:39):
So just to conclude, so we found the change in
racial diversity in law schools. It kept pace with the
changing demographics of of the US, but it didn't catch up.
The difference has remained roughly the same. There remained big
differences in experiences between law schools, and we found state

(18:00):
level affirmative action bans decrease diversity by seventeen percent.

Speaker 5 (18:04):
So I didn't tell you about this.

Speaker 6 (18:06):
Starting in nineteen ninety nine, we actually have breakdowns by
different racial groups, and so we're able to ask, well,
what explains that seventeen percent decrease. We find that the
entire decrease is explained by decreases in black and Hispanic shares,
and we find no impact on the diversity in terms
of Asian American shares. We also find that there's a

(18:29):
bigger decrease in racial diversities in elite law schools. Right,
So in top fourteen law schools, we find an affirmative
action ban decreases diversity by twenty five percent compared to
a sixteen percent decrease.

Speaker 5 (18:43):
In other law schools. And so yeah, I look forward
to the discussion.

Speaker 3 (18:48):
Thank you, Hi, I'm going to sit here, if that's okay,
Can you guys hear me? Great? Okay, So thank you
Judge Branch, and thank you all for being here into
the FEDSAK for inviting me. I want to focus on

(19:10):
two main points, one legal and the other about the
interpretation of ambiguous I want to focus on two main points,
one legal and one about the interpretation of ambiguous empirical facts.
So the key legal point is that after s FFA,
it remains constitutionally permissible to try to promote racial diversity.

(19:34):
So long as colleges don't treat individual students differently based
on their race, they still have available to them race
neutral alternatives to affirmative action. The key factual point is
that when we're trying to figure out what schools are
in fact doing, whether they're complying with s FFA or
instead surreptitiously circumventing it in some way, we should not

(19:57):
get too hung up on the demographic numbers that they
are currently reporting, especially in this first season, because those
numbers are amenable to so many plausible causal explanations that
they really don't tell us very much at all, at
least taken alone. So let's start with a legal issue.

(20:19):
I'll say here that I'm not here to argue with
the merits of the s FFA decision or to suggest
that it's okay for universities to try to circumvent it
the decisions the law. I think that universities in general
know it, but we need to be specific about what
that means. What did s FFA prohibit and what did
it not prohibit. So what SFFA prohibited is affirmative action

(20:43):
I racial preference as an admission Universities must not give
weight to an applicant's race itself in admissions. All applicants
must be considered under the same race neutral criteria. But
affirmative action has never been the only tool that universities
have to promote racial diversity on their campuses. They've always

(21:04):
had many other options. One example is the Texas ten
Percent Plan, a geography based admissions policy that was explicitly
designed to preserve diversity after an earlier ban on affirmative
action in Texas. There's many other examples, many of which
are very much on the table now right so many

(21:25):
people have suggested, for example, that now that universities are
stopping race based preferences, they should also take a hard
look at legacy admissions, which are essentially a form of
affirmative action that at almost all schools primarily helps white students.
And others have said, let's rethink athletic preferences, especially for

(21:48):
certain sports that are dominated by prep schools. Many people
have said let's try to make schools more socioeconomically diverse,
which we can do through tools like increasing financially maybe
giving preference to first generation students. And when we do that,
not only will it address socioeconomic diversity itself, which is

(22:09):
valuable in its own right, but racial diversity will to
some extent at least come along with that.

Speaker 4 (22:16):
Right.

Speaker 3 (22:18):
So and some people have said, look, we do need
to think about race and why it is that that
certain groups are underrepresented on campuses, but our focus shouldn't
be on university admissions because that's essentially too late. What
we need to look at is the pipeline right and
address racial disparities in educational opportunities for kids in America.

(22:39):
And maybe universities can help that, say by offering summer
enrichment programs for kids, high school students and so forth,
to try to get people better prepared for college and
improve the pipeline right. So I'm not here to judge
the policy merits of any of those that's not my expertise.
I'll note that none of what I just said I
think is a particularly like radical idea. I think to

(23:02):
care about underrepresentation of black and Hispanic students on campuses
is not an idea that requires you to be kind
of committed to every aspect of kind of modern dei ideas, right,
Like people in lots of people across the political spectrum
want to find ways to address these these issues. And

(23:26):
my point here is that there's nothing constitutionally amiss with
any of the things that I just suggested, and that
that remains true even if one of the reasons for
suggesting them is that you care about the racial composition
of campuses. So none of the things that I just
suggested are affirmative action in disguise.

Speaker 2 (23:47):
Right.

Speaker 3 (23:48):
The crucial difference is that under all everything I just suggested,
each applicant would still be judged by criteria that are
the same, right, that don't take race into account. That's
a big difference, not just a technical difference, right. And
when that's the case, the key concerns that the Court
raised about affirmative action, like stereotyping or lumping large groups

(24:12):
of dissimilar, dissimilar groups of people into racial categories, or
stigmatizing students from disadvantaged groups who will be assumed to
not have met the standards that everyone else met, none
of those concerns apply to those race neutral tools, and
so the SFA decision didn't prevent, didn't prohibit diversity tools

(24:34):
like that, only affirmative action. And in fact, as Judge
Branch mensioned, the Court didn't even require total race blindness
on the part of admissions officers. It said they could
consider an applicants race related experience, but only insofar as
it illustrates in a very individualized way qualities that make
them a good candidate for for admissions, such as, say,

(24:58):
the resilience that might be demonstrated from having overcome and
experience of discrimination. What admissions officers can't do is to
use that as just a way of kind of collecting
race information and then using it to give way to
what the Court calls race quaw race right race in itself. Crucially,

(25:19):
in all of this, the Court didn't deem racial diversity
and unconstitutional or unlawful interest. Far from it. The Court
actually gave quite a bit of space and I think
respectful discussion to UNC's and Harvard's stated educational interests and diversity,
and it in fact described those interests as commendable and worthy.

(25:41):
The problem was the means right. The problem was the
tool that was used to try to advance those objectives. Now,
to be sure, the court did hold that UNC's and
Harvard's diversity interests were not compelling in the sense that
they could justify a race based classific But there is

(26:01):
a large gulf between compelling on the one hand and
unconstitutional on the other hand, in that golf lies almost
everything the government does right Like normally, we don't second
guess every policy interest that that policymakers in all kinds
of institutions pursue, but we also don't say that most

(26:23):
of them justify the use of racial classification, and that
they're in that golf now lies educational campus racial diversity
it as as an aside. I think it would have
been quite shocking if the Court had had suggested that
racial diversity was not even a permitted objective anymore, given
that it had treated it as a compelling one for

(26:44):
fifty years. It also would have been quite shocking for
courts to suggest that universities couldn't pursue race neutral alternative
strategies anymore, since its doctrine had affirmatively favored those approaches
and treated them as kind of presumptive, like they were
the thing that universities had to consider and rule out

(27:07):
before they could even consider moving on to affirmative action.
It would have been surreal. And indeed the Court didn't
do it. And if you want other evidence of that fact,
the fact that basically the Court's admonition against indirect affirmative action,
while I think it has content, it is not a

(27:27):
bar on all consideration of diversity. Right. So, for instance,
so you can look at some of the separate opinions.
So Justice Thomas, for example, favorably cites the efforts of
the University of California and Michigan after the elimination of
affirmative action to enroll racially diverse classes by race neutral means.
Justice Thomas SAIDs these race neutral policies may achieve the

(27:49):
same benefits of racial harmony and equality without any of
the burdens and strife generated by affirmative action. I Meanwhile,
Justice Gorsich also describes alternative admissions practice is as not
being race based. He says Harvard and UNC could obtain
significant racial diversity without resorting to race based admissions practices.

(28:09):
Many other universities across the country have sought to do
so just by reducing legacy preferences, increasing financial aid and
the like. Justice Kavanaugh states, governments and universities still can,
of course act to undo the effects of past discrimination
in many permissible ways that do not involve classification by race,
And this is consistent with, for example, comments by Justice

(28:30):
Thomas and Justice Alito in the Fisher cases in which
they spoke positively of the Texas ten percent plan as
a non discriminatory way in which students were admitted. So
why am I hammering this point so hard? Because there's
a legal movement out there to try to push the
implications of SFFA beyond what the Court actually decided, and

(28:51):
to argue that even totally race blind admissions policies must
fall if part of the reason that they were adopted
was concerned for racial diversity. Those efforts actually began even
before s FFA was decided. The kind of leading edge
cases was a bunch of challenges brought to public magnet schools,
which were sued even though they had race blind admissions policies,

(29:14):
essentially for caring about the underrepresentation of black and Hispanic
students and for using that to choose among different race
neutral admissions policies. So those lawsuits seek ultimately to establish
the principle that governments as well as universities governed by
Title six, if you know, assuming miscuits extended, the theory

(29:37):
gets extended at the higher education level, that those entities
must be completely color blind in their purposes and not
just in the actual policies they implement. The legal theory
relies on a false syllogism, but attempting one. I think
the plaintiffs point out that it's well established in case
law that comes from more traditional civil rights cases that

(29:58):
a facially neutral policy is constitutionally suspect if it has
a discriminatory purpose, or put another way, if it has
a disparate impact that is intentional rather than incidental. And
they say, well, if we think that the purpose of
increasing black and Hispanic representation is such a discriminatory purpose,

(30:19):
because everyone understands that it, at least in a zero
sum context like university admissions, it means necessarily reducing white
and or Asian representation, And so you know, I think
the problem with that logic is that it's just not
true legally or normatively that every race related purpose is
the same such that all of them taint race neutral

(30:42):
tools in the same way. So, for decades, our case
law has distinguished between invidious and benign racial motives, between
the purposes of including and excluding, desegregating versus integrating, shipping
away at the many racial disparities in our society versus
seeking to expand them. Policymakers at every level of government
and far beyond education have taken for granted that it's

(31:05):
okay to engage in thinking like this, and this is
not a partisan issue. Right, So, if you look at
google President Trump's Platinum Plan, you'll find a website with
a list of policy based objectives for black communities, like
building wealth and black communities, encouraging minor investment, business investment,
reducing racial health disparities, and the like. Certainly the Democrats

(31:27):
have similar UH sets of proposals like that. There's lots
of disagreement about how to do all of this, what
to prioritize, et cetera. But the mere idea that we
should care about the ways in which our society still
bears the legacy of of of, you know, decades of
lawful racial discrimination. The mere idea that we should care

(31:50):
about that UH is not constitutionally suspect, and if it
were deemed so, it would potentially taint countless policies across
countless areas of law and really open a Pandora's box
of litigation. Fortunately, our law has not done that, and
nothing in s FA f FA changes it. So okay,

(32:16):
I think that's enough in that point. Let me speak
to this fear the empirical point that I mentioned. So,
schools are prohibited from engaging an affirmative action, whether it's
an explicit matter of policy or something more surreptitious that
they're doing, and so they do have to change their
admissions policies in the wake of s FFA. So how
do we know whether they have done so? What facts

(32:37):
would tell us would suggest that, like, hey, this school
isn't it isn't just doing the things it's still allowed
to do, but is in fact breaking the law. So
I don't have an easy answer to that question because
there isn't one obvious smoking gun to look for. Right
throughout the history of US civil rights law and litigation,

(32:57):
it has been hard to detect unlawful justscrimination and differentiate
it from lawful decision making. And that has been a
challenge for civil rights plaintiffs in lots of areas, right,
And that's sort of inevitable because we generally don't require
every decision maker governed by civil rights law to walk
the public through every aspect of their private decision making,

(33:20):
and this situation will probably be similar. I'll tell you
what I think isn't a smoking gun, which I'm afraid
that too many people are currently focused on, and that's
the reported demographics coming out of schools in coming classes
this year. So as as many of you know, not
long after winning in the Supreme Court, SFFA sent letters
to a large number of universities basically saying you better comply.

(33:41):
We're going to be watching you, we're going to be
looking at the numbers you report, and we're going to
be prepared to sue you. And then this fall, when
everybody started reporting numbers, a few elite schools, in particular Yale, Princeton,
and Duke came back with numbers that didn't show what
SFFA apparently thought every school's numbers should show. Black and
Hispanic admits didn't fall, and Asian American admissions didn't rise

(34:03):
and even fell a few points. So based on this alone,
SFFA promptly sent those schools letters indeed threatening to sue them,
And I want to say, hold up, this is not
even close to grounds for a lawsuit or for suggesting
that you have some kind of a right to detailed
information about the private decision making of private entities. You
can ask, you don't have a right to it. It's

(34:24):
not really grounds, even especial for particular suspicion. Yes, it
is logical to expect that the elimination of affirmative action
will cause diversity to drop at many and perhaps most,
elite schools. That is an overall effect of the market
that we should expect, and it's what people predicted in

(34:45):
the s FFA litigation itself. But we should not expect
that to happen uniformly at every school, or even at
every elite school. And to me, it's quite unsurprising that
when you are watching dozens of elite schools like a hawk,
you're going to see a few that don't match the
general pattern. And that would be true even if all

(35:07):
of the schools, including those schools, are complying with s
f f A. One reason relates to the legal point
of already made schools have many available, entirely lawful tools
for preserving diversity. They're free to consciously pursue that aim
many and I strongly suspect that many schools are trying
to do so, and some of them maybe being more

(35:29):
effective than others, which is going to give them a
larger share of the available pool of black and Hispanic applicants.
That in and of itself is not a legal problem. Second,
even setting this aside, even assuming all every school did
was just jettison affirmative action and change nothing else about
their process, you still wouldn't expect every school to show

(35:52):
the same demographic effects. And here's why schools don't admit
students in a vacuum. They compete with one another fiercely,
and even at the top levels, they compete for yield.
They compete for who applies in the first place. And
so the composition, for example, of Duke's entering class is
not just determined by Duke's admissions decisions. It's determined by

(36:12):
the admissions decisions of dozens of other elite schools with
whom Duke competes, and by the choices made of tens
made by tens of thousands of students about where to
apply and what offers to accept. And the Supreme Court's
decision in an SFFA was notably different from the state
bands that affected individual state schools because it didn't just

(36:33):
affect one state. It didn't just affect Duke. It affected
all their competitors at once. Right, So, the students in
the elite college applicant pool who are affected in one
way or the other, whether they're helped or harmed by
the elimination of affirmative action, the vast majority of them,
they're not going to end up not going to college, right,

(36:56):
They're going to land at different colleges. And that means
that some students will gain in different classes of students
and others will lose. And so even the ones that
we're getting into the very top school, maybe they won't
get to their very top choice, but they're still going
to end up somewhere very elite. So Duke doesn't get

(37:17):
some of the students that would have admitted. It does
get some students that it wouldn't have gotten otherwise. Right,
what would should we affect the net effect to be
ex anti We don't know, because we don't know the
relative pre s FFA effective affirmative action on all of
those schools, and we don't know how they compare with
each other in terms of which of these like alternatives

(37:39):
to affirmative action they're they're pursuing. So you know, I
think we should expect heterogeneity. I think maybe affirmative actions
defenders invited a little bit the skepticism that they're facing
right now. I want to acknowledge that because they said,
you know, it's going to be like you threw a
bomb into our numbers. And I think maybe they over

(38:01):
emphasized the experience, honestly of Michigan and the University of California,
because those schools lost affirmative action at a time that
none of their private competitors or out of state competitors did,
and so of course it really was a hard hit
to their numbers because they were essentially competing with their

(38:23):
competitors for black and Hispanic students on an on level
playing field. But that is not just what just happened
with SFFA, and so we should expect more complicated, less
predictable results. Final very short point is that the numbers
themselves could potentially be misleading. So one thing is that
different schools don't necessarily report race the same way. Some

(38:45):
of them categorize multiracial students differently, international students differently, etc.
And they don't necessarily characterize them the same way over time.
And many of them have a pretty strong incentive to
look like they're not losing diversity after SFFA. They may,
you know, be a little worried about letters coming from

(39:05):
from SFFA, right, but they may also be very worried
about their constituencies who really care about their diversity numbers. Also,
the numbers that are reported depend on students being willing
to identify themselves by race. And here I'll add one
bit of empirical data from a survey I conducted last
spring with Commission qual Tricks to commit to carry out

(39:30):
a national survey of people who applied to college in
last year's cycle and in the cycle before, the cycle
before SFFA. And one of the questions I asked was
did you identify your race via checkbox when you applied?
And the only big change that I saw after s
FFA was a thirteen percentage point drop in Asian students

(39:53):
saying that they had identified their race. You might ask why,
I think you know, we didn't ask why, so we
don't the answer to that question, But the but so
only only retrospectively have. I thought we might have asked why. So,
if I'm speculating, I'd have to say it's probably that
if it was an effective SFFA, it probably wasn't an

(40:14):
effect of the actual court decision, but rather the zillion
media stories out there surrounding the decision about how terrible
it is to be an Asian student when you're applying
for college, Like, maybe that caused viewer of them to
check the boxes, and that might mean that the drop
that you see at some schools is artificial. It's just
a reporting problem. Okay, I've probably talked for way too long,
So thank you, Peter.

Speaker 4 (40:46):
I'm going all right. There was the presentation. So my
background on this is you've been doing research on affermative
action for some time and as a result, had the
opportunity to serve as an expert witness for students or
fair admissions in their lawsuits. And I think a lot

(41:10):
of why I was very interested in this is all
the debates about affirmative action are really ill informed because
we actually if you say you're for affirmative action, it's
not clear what that means. It's sort of like saying
I'm for the minimum wage. Well, does that mean, you're
for a ten dollar minium wage or a fifty dollars

(41:30):
minimum wage when and we don't really have the data
generally to even say what it means. So if we
look at think about what happened in the Supreme Court
cases prior TESSAFA, they have sort of those twin Michigan
cases wherein one they said you can't use an explicit

(41:52):
point system for your race, and the other said, well
you can't do it holistically. Now, if you're going to
rule one of those and not the other, I would
have preferred it to be flipped myself, because I want
everything to be sort of above above board here and
what was going on. You can see actually what some

(42:13):
of the liberal justices said. You see the suitors saying
equal protection cannot be an exercise in which the winners
are the ones who hide the ball. I think this
still applies now, and Ginsburg ion is the best policy surely,
Michigan's accurately described, fully disclosed college affirmative Action program. It's
preferable to achieving similar number numbers through winks, nods and disguises.

(42:38):
So up until SFA, we've got some hints. Is style
racial preferences operate, and to the extent that we know
something it's actually from. People have been pretty courageous in
terms of trying to get the data. So to me,
I think somebody like Rick Sander on the law school

(42:58):
front tremendous service by filing the Freedom Information Act requests
and trying to make the data public as to what
the heck was going on, and suser Verry Michins did
a tremendous service on that. And you could say, well, yeah,
if you're pro affirmative action, maybe you don't feel that way,
but without that lawsuit, you don't know how big the

(43:20):
legacy preferences that were either. It really took uh, you
got to look behind the veil on this for the
for really the first time. So what I'm gonna do
is go through a little bit about the numbers both
in the public record and then that came about through
the court cases, to show you, you know, how how

(43:42):
these preferences operate, how big they are, and and hopefully
provide a little bit of nuance to all this. So,
first of all, why do we have affirmative action, Well,
because we do have really big problems prior to college.
These are the distributes by race for getting above a

(44:03):
thirteen to ninety on the SAT score. Okay, twenty five
percent of Asian Americans get a thirty get above a
thirteen ninety on the SAT. That's eight percent for white
students and one percent for black students. There are different

(44:24):
ways of looking at these numbers. There's an anti racist
way which would say the test must be biased. There's
a racist way which would say we're stuck with this,
but this is so infixable. Rolland Friar has shown ways
of addressing these sort of test score gaps. And until
we do something about that, we're all it's all mirage

(44:47):
about any affirmative action actually fixing the underlying issues.

Speaker 7 (44:53):
So what that leads to when we do.

Speaker 4 (44:56):
Have affirmative action, But it's this graph show We're going
to create something called academic index. It's just a combination
of your test scores and grades. And what I'm showing
you is what that distribution looks like for minority students
admitted to Berkeley. And I'm comparing that to white applicants

(45:19):
to the UC system as a whole. And what you'll
notice is that the distributions are pretty much the same.
So you have white students who may be rejected from riverside.
They're in that group in terms of applying as a whole,
and their distribution looks a lot like what it looks

(45:40):
like for my minority students. This is when before from
reaction was banned by Prop. Two and nine. Okay, so
they're big, big preferences operating just from what we can
find public record. This data comes about they could have
been admitted, could have not. It's a whole set. Yeah,

(46:02):
if you look at it for law school. This is
at University of Michigan around the time that they're deciding
this case. And this is again a combination of your
all set scores and grades. And the dash lines are
for white students. I have one that's for accepts and
one that's for rejects. And what I want to point
out is that the distribution for white rejects to Michigan looks,

(46:29):
if anything, slightly better than the distribution of black admits. Okay,
Now that's happening in equilibrium because some of the people
who would have really high l set scores and grades,
they weren't applying to Michigan because they need they could
get into Harvard with those things there. And if you
look at where the fiftieth percentiles, or the average the

(46:51):
median black admit where they would fall on the white
admit distribution. It's the second percentile. Okay, so we're talking
about pretty substantial, substantial preferences if we look at what
happens at Harvard. And I should say I had studied
for a reaction before. I didn't know much about how

(47:15):
the performance of Asian Americans before it took the case,
and it was shocking, shocking to be if this is
a share in the top ten percent of the academic
and excessile again weight accommodation of test scores and grades.
And now this is where I need my glasses. But
Asian American it's a huge share, fifty seven percent versus

(47:41):
one percent for African American. And if you made things
based on solely test scores and grades, all groups go
down except for Asian Americans. Now they don't do it
based solely on grades. Okay, you wouldn't necessarily know how
big the preferences are if you just looked admit rates
by race, they wouldn't look all that different. Well, why

(48:02):
is that? Well, Harvard actually does a great job of
getting black students who have no chance of admission to
apply to their school. And I mean, and this is
We've got a paper on this with the data that
was revealed in the case. And so if you look
at the share and the bottom death style, so bottom
ten percent according to academics, forty three percent of that

(48:25):
is African American. Of that group, unless you were an
athlete or a legacy or something like that, you had
two admits across six across the six years. Okay, so
these people are not getting not getting it. Okay, so
that this is a conversion to PowerPoint, But that doesn't

(48:47):
tell you. That's just the raw data. We can actually
estimate models of admission and say, okay, well what does
that tell us about how big racial preferences actually are.
And so the first thing I'm showing here is like,
let's take a white male who has a who based
on all of how Harvard ranks, you would have a
five percent chance of admission. Here's what there probabili is

(49:12):
a being admitted would be if they were treated as
members of different races. Okay, and so you can see
at Harvard, if you're not disadvantaged, but we treat you
like an African American, We're talking about almost seventy percent chance.
The numbers actually even higher for UNC out of state admissions.
What's going on there? The UNC case actually splits the

(49:35):
conservative argument against affirmative action in half. What's the conservative
argument argument? It would be either fairness we shouldn't be
making decisions based upon race, or two. Where the second
one would be we're putting people at schools where maybe
they're not going to do so well. Okay, The more

(49:56):
unfair would be the UNC out of state admission. The
preferences are much larger there, but those kids actually do
well are better prepared than the in state admissions because
the bar to get into UNCI outa state is so
much higher. So those guys unciata state black admits actually

(50:16):
look a lot like white in state admits. So the
unfair one would be the unciata state. The mismatch concern
would be more UNC and state. But the other thing
I want to point out is how the preferences operate themselves. Okay,
so there's actually one study that found that over forty

(50:38):
percent of black students at Ivy League schools are first
or second generation immigrants. And if you look at the
way these policies are targeted here with the actual data
that we got from UNC and Harvard, you would get
a bump, a large bump if you were black, smaller

(51:00):
bump if you were disadvantaged. But if you were black
and disadvantage, you didn't get that disadvantage bump. And that's
them which you can see at the bottom panel, that
those gains that you're getting are not as big for
your race if you happen to be this disadvantaged. Part

(51:20):
of that could be concerned about misfaction. We don't want
to get too many bumps, but there are other other
things that it could be could be as well. There's
another way of calculating how big those preferences are. The
first column that actual admit rate. This is what they're
you know, after we throw out people whose qualifications would
mean that they have no chance of getting in. This

(51:42):
is what the admit rate would be for African Americans
are also throwing out the athletes and sucks. Preferences are
actually biggest at Harvard for recruited athletes. And to Sonia's point,
the Harvard actually offers more varsity sports in these school
in the country, and so were a lot of it.

(52:03):
If you got rid of sports preferences. The only group
that goes down is actually white students because it's talking
about sports like sailing and justice. Gor Si you talked
about kept bringing up squash at the Supreme Court hearing.
So what you can see is the actual admit rates
in that column there, the average marginal effect is like,

(52:23):
that's how much of that actual admit rate is because
of race. So if you if you got rid of
that there, the no preference admit rate would be what's
in that third column. So you go from nine and
a half to two point two five? Right, Again, this
is without the legacies. Were even with Harvard following the

(52:45):
ruling completely, it wouldn't go down quite this much because
of the way other preferences are operate, and of course
they are going to make adjustments. But the point is
these preferences are huge, okay, And so when we think
about the scope for getting around it's difficult. It's difficult.
There's there are things you can do. And in fact,
the other expert witness for students of fair admissions is

(53:08):
a guy named Rick Kalenberg. And where Callenberg is completely
interested in race neutral alternatives, okay, and what what would
those look like? From Rick's perspective would be things like, well,
we're going to give a lot bigger preferences for uh
socioeconomic status. Okay, So I bring that up because I

(53:30):
want to be thinking about some of the trends here.
And you know, one of the things that Sonya mentioned
this about how they how they report this data. This
thing just drives me nuts. I mean, the fact that
admissions offices give you the racial breakdown of the class
and give you numbers that add up to more than
one hundred percent. That's dishonest. And if you think they're

(53:55):
they're they're being above board. So either they don't really
understand works or they're being dishonest, and that's not not okay.
I mean, I think one of the biggest problems with
all this is to the enforcement point is how you know,
universities hide their data and it's a real shame. So

(54:17):
but the reason I chose these three schools is there
are three of the schools that actually reported the numbers
the way that you have to do it for the
federal government. So these numbers actually end up to one
hundred percent, you know, shocking. And what you can see
is what's going on to the last year is the

(54:37):
class post s FFA, and you can see, like Stanford
and Princeton they're sort of moving together. And then last
year Stanford drops quite a bit, Princeton does not, and
question is does that signal or anything? Amherst the drop was
even even bigger. So the things that I'm looking for

(55:02):
in terms of the hints, again, we can't so just correct.
We can't say anything completely for sure because they hide
their data. But as Justice Roberts pointed out, it was
always in the past universities would basically say trust us.
I don't think they've merited that trust in that regard.

(55:26):
There's nothing less informative about how admissions works than hearing
an admissions officer talk about this, right, It's like everything
is a factor of a factor.

Speaker 8 (55:38):
You know.

Speaker 4 (55:38):
I don't know what to do with this. I still
don't totally. I figured out I've got five boys and say, well,
how do I how can I now get into one
of these schools? I'm not so sure. But in any event,
this is not fully what you would expect. So if
Princeton's the place that's compliant, then what I expect to

(56:01):
see is that they're the ones who really put even
more emphasis on socioeconomic status after the ruling than the
schools that saw the big drops. The evidence suggests that
the schools that saw the smallest drop for black and
Hispanic students were also the schools overall. There are exceptions

(56:22):
to this that saw the smallest increase in pelgrant students
or first generation college students. That points to there being
something else, something else going on, And you know, there
were other things they could do, like get rid of
legacy preferences, get rid of the sports, and there was
a lot of pressure at first to get rid of

(56:43):
those legacy preferences. It's just sort of died down a bit.
They're the one place where it's shown up as California
has banned legacy emissions. That's even harder to enforce because
at least some racial data gets reported to the government.
I don't know how they're going to re enforce that

(57:06):
band in California. So when I think about potential future
law suits, you're started looking at that combination of changes
in the demographics plus what's going on on the socioeconomic front.
But in the end, without the data, you know, it's
very hard hard to say much in university's to not

(57:27):
to be very forthcoming with regard to that. Thanks.

Speaker 9 (57:40):
So imagine grandma has a heart attack and you go
with her to the hospital.

Speaker 7 (57:45):
Rush to the hospital.

Speaker 9 (57:46):
You get there and the treasurer says, oh, your grandma,
she needs medical help right away, but first you have
to fail this former tell us what her race is,
and he said, well, I'm not sure.

Speaker 7 (57:58):
Her dad's from Spain, her mama's Armenia.

Speaker 9 (58:01):
And then Nur says, oh, okay, well, Armenians are officially
white and people from Spain are officially Hispanic.

Speaker 7 (58:06):
You want to put down Hispanic.

Speaker 9 (58:08):
We get her in earlier, she'll be ahead of missus Johanson.
She put down white. But mister Jones, he's an immigrant
from Nigeria. His wife, who came in with it, wasn't
sure what to put down because she thought, oh, he's
not African American. But explained to her that officially people
from Africa, as long as their American citizens, are considered
African American, and he is, so she put that down.

Speaker 7 (58:29):
He's going to go in first.

Speaker 9 (58:30):
Now you might think this is a little crazy and dystopian,
but there are a lot of people in the government,
particularly in the outgoing government, who and in the medical
industry who see this as the future of medical care.
And the reason that I'm raising this is I want
to point we had some great presentations about the effect
of sff Pahir always have trouble saying that SFFA on

(58:55):
university admissions, but in fact it was also the first
Supreme Court case to conclude that the racial classifications that
the government has imposed on us since the nineteen seventies,
and has dictated that we routinely use them and we
apply for jobs and for loans, and for school and
to participate in medical research and all sorts of other things,

(59:15):
are arbitrary and presumptively unconstitutional. Now I go in in
my book Classified, which I'm holding up for those of
you in the back. It is now available in paperback.
Might as well get a plug in while I'm up here,
describes how these classifications came about in some detail, but
I'll give you the really short version. In nineteen seventy three,

(59:38):
it occurred to the old Department of Health, Education, and Welfare.
They were collecting throughout the government all this new data
about racial minorities that they needed to fulfill the mandates
of various civil rights laws and Great Society programs. The problem, however,
was that there was no official or consistent way of
dictating who you were supposed to gather data about and

(01:00:01):
what the definitions of those groups were. So Hugh set
up an interagency commission charged with creating official racial classifications.
And after a process marked by accommodation of lobbying, bureaucratic imperative, inertia, arbitrariness,
and incompetence, this is, after all, the government all described

(01:00:22):
to get in my book classified, and by the way,
with very little public controversy or input. In nineteen seventy eight,
the Office of Management and Budget published Statistical Directive Number fifteen,
maybe the most important rule in the Federal Register. You've
probably never heard of. Directive fifteen sordid Americans into the
now standard racial classifications black White, Hispanic American, Indian, and

(01:00:47):
Asian American, Hispanic and Asian American in particular, or pretty novel.
Fifty or sixty years ago, almost no one would have
self identified that way. So I feel a little compassion
for people who are pushing Latin X.

Speaker 7 (01:01:00):
So that's absurd.

Speaker 9 (01:01:01):
That would been equally absurd calling Cubans or Mexicans Hispanic
sixty years ago Anyway, O and B had no idea
that it was institutionalizing permanent racial classifications that would have
such a dramatic effect on government programs and American society.
In fact, in the Federal Register, in the rule itself,
it said these are not scientific in nature, they're not

(01:01:22):
anthropological in nature, and in particular, they should not be
used to determine eligibility for any federal program famous last words.
Partly for because these were the available criteria that were
out there, and partly, I think just coincidentally the case happened,
the Baki case happened to come out the same year

(01:01:43):
in nineteen seventy eight, and now we have this new
diversity criteria for emissions that we have to figure out
what the criteria are. Everyone started using the director of
fifteen classifications as affirmative action classifications, and these eventually bled
beyond a firm action into things like medical research and
other things medical research thanks to some really silly laws

(01:02:06):
passed by Congress in the nineteen nineties. Despite the fact
that DIRECTI fifteen classifications were never intended to be affirmative
action classifications, none of the Supreme Court opinions until SFFA
really dealt in any detail. It was just sort of
accepted as these classifications are somehow just natural and inevitable,

(01:02:28):
perhaps in part because I.

Speaker 7 (01:02:29):
Think the litigants didn't push the.

Speaker 9 (01:02:30):
Issue after SFFA. Though, any government program that uses direct
of fifteen classifications to classify people our suspect as not
being narrowly tailored to achieve their objective. In the opinion,
Chief Justice Roberts denounced the Director fifteen classifications without using
the phrase Director fifteen, I think as imprecise in turn,

(01:02:54):
both overbroad and under broad, opaque, arbitrary, and undefined. Just
as Gorsic elaborate on this in a concurring opinion, which
Justice Roberts sided favorably, I see Corey lu nodding. Chief
Justice Gorsich relied on an opinion filed on my behalf
by Corey.

Speaker 7 (01:03:10):
So I'm gonna give Korea a wave later.

Speaker 9 (01:03:14):
The irony, though, about the persistence of these classifications, is
that anyone really of any ideology that looks into the
classifications agrees that the scheme is almost comically arbitrary and irrational. So,
just for example, we have a new Middle East and
North African classification that just came into being. But until then,

(01:03:36):
until two thousand and twenty four, anyone from Iceland to
the Middle East was classified as white, except if your
ancestors happened to be from Spain, then you're a member
of minoritude.

Speaker 7 (01:03:50):
Why that's just It just is.

Speaker 9 (01:03:56):
Pakistani's and Filipinos and everyone in between geographically are all
put into the Asian American classification, even though your average
Pakistani and Filipino have nothing more in common the way
they look, their religion, their culture, anything else than any
two random individuals in the world for that matter. There

(01:04:19):
was some controversy, but it was resolved just to have
one white category. A Hasidic rabbi in Brooklyn and a
non binary professor at UC Santa Cruz who is of
Icelandic and Greek descent, are also both in the same
white classifications.

Speaker 7 (01:04:37):
All these classifications are, as.

Speaker 9 (01:04:39):
Justice Gorstage Chief Justice Roberts pointed out, arbitrary and somewhat irrational.

Speaker 7 (01:04:46):
So why do they persist? Why haven't we.

Speaker 9 (01:04:48):
Had a fundamental reassessment of these classifications. Well, at least
one reason is that many of our friends on the
left are convinced that racial division in the United States
is a permanent fee of American society. Therefore, if we
want to achieve equity, we have to divide Americans into
discrete groups and make sure each group is getting their
fair share. If that's your underlying premise, it's actually a

(01:05:10):
lot less important that the classifications make any logical sense,
and that you have the classifications to begin with, and
that way you can make sure each group is getting equity,
as they call it. So I think we need to
reject the underlying premise of inevitable, permanent racial division that
requires government to classify people routinely by race. And we

(01:05:33):
have an example of why we shouldn't expect the status
quota to stay the same way forever. All sorts of
ethnic and religious conflicts that once permeated American life have
basically gone away, and indeed seem faintly ridiculous now. So
I'm not quite old enough to remember this, but some
of them in the room maybe. In nineteen sixty when

(01:05:55):
JFK was running for president, even though he started off
of the base of twenty five pc of Americas being Catholic,
there was serious doubt whether a Catholic could be elected
president of the United States, and indeed, millions of Protestants
who normally voted Democrat refused to vote for JFK and
voted for Nixon. Nixon did win anyway, why he got
eighty two percent of the Catholic vote. A lot of

(01:06:17):
Catholics who normally voted Republican out of identity politics. We
don't think of Catholics nowadays having identity politics, but out
of identity politics voted for JFK. So compare that to
sixty years later. Not that much, not that long in
the scheme of things. In twenty twenty, the American people
were represented by a Catholic President, a Catholic Speaker of

(01:06:40):
the House, six Catholic justices on the Supreme Court, along
with a Jewish Senate majority leader, two Jews on the
Supreme Court, and of course a half black and half
Asian Vice President, not to mention a whole bunch of women.
This would have been inconceivable to people in nineteen sixty.
As of nineteen sixty, almost every position of power in
the United States history have been held by a Protestant

(01:07:02):
white man. If you had told them in sixty years
what I told you which actually happened, they were said,
what happened to that did the Catholics take over somehow,
or maybe the Jews took over and they're just using them,
manipulating the Catholics right, who knows, but they just just
would have been inconceivable to them. And yet it attracted
like no controversy. In as we all know, no one

(01:07:24):
really cared. And more generally, if you think about the
status of what we call what used to be called
white ethnics in the United States, if you were Greek
or Polish or Jewish, Slavic and so on, Armenian, you
are excluded from not just country clubs, but law firms
and insurance companies and all sorts of other businesses.

Speaker 7 (01:07:46):
And it was a big deal.

Speaker 9 (01:07:47):
And now I know I'm old enough to remember this
and not that even less long ago in the nineteen
sixty and nineteen eighty six, one reason Justice Scully was
chosen to be a justice was it would be the
first at Italian American. This would help with the white
ethnic vote. And I went back. I looked at the
Senate transcript when he was introduced to the Senate.

Speaker 7 (01:08:07):
The first I.

Speaker 9 (01:08:07):
Forget which senator was, but the center said a distinguished jurist,
Judge Ansen Scalias. Here he will be the first Italian
American justice of the Supreme Court. And I tell my
kids this, and they say, well, who cares? Why would
anyone think that's important. That's just completely bizarre. It is
no no one cares that the sentence when he was
running was Italian, right, We don't care anymore. The situation

(01:08:30):
has completely changed. So I think trends in intolerance and
in racial tolerance and intermarriage make a similar outcome with
regard to race, in other words, of development of some
sort of common, non racial or multiracial American identity and
natural outcome of American society. People intermingle and intermarry and
procreate in all sorts of couplings now when no one

(01:08:52):
really cares. In nineteen fifty eight, four one digit percent
of Americans approved of interracial marriage. Now it's nine of
twenty twenty one, and among people under thirty, it's like
ninety eight percent. So this is a huge, drastic change,
and I think the natural evolution of this would be
a common American identity. The problem is that the elite

(01:09:15):
to control the government, academia, and big business are wedded
to keeping these Directive fifteen classifications.

Speaker 7 (01:09:22):
We should instead have the same.

Speaker 9 (01:09:24):
Policy we had for white ethics, which is a matter
of benign neglect. Now we can't completely get rid of
racial classifications, and we may not want to completely get
rid of them, because certain civil rights laws are basically
unenforceable without them. How do you enforce the Voting Rights
Act if you'll know who's voting in different counties and
so forth. And I don't think we're getting rid of

(01:09:44):
such laws anytime soon. What we can do is establish
two principles within the federal bureaucracy, and this draws, of course,
on the tests the under equal protection law. The first
is that we should only allow, much less require, racial
classification if a government agency can show a compelling interest

(01:10:04):
in doing zoo, so no more routine collection of this data.
And second, if race must be used, the classifications should
be narrowly tailored to the intended benefit. So instead of
just always by default relying on Directive fifteen classifications, what
are we actually trying to accomplish If we're trying to accomplish,
for example, medical research to.

Speaker 7 (01:10:26):
Determine the genetic origins of.

Speaker 9 (01:10:28):
A disease or how to fix a disease, using the
Hispanic classification makes no sense. Whatsoever, since Hispanics could be
of African, Indigenous, white, or Asian origin, or any combination
there for, that makes zero sense, as we do to
require biomedical companies.

Speaker 7 (01:10:46):
To use such a classification.

Speaker 9 (01:10:48):
On the other hand, we might want to go really broad,
like with hate crimes statistics. The FBI collects hate crime
statistics on everything from the director of fifteen classifications to Mormons,
people over four, the disabled right, because a lot of
different groups are subject to hate crimes, not just they
don't follow government mandates. People who hate other people don't

(01:11:08):
look up the federal register before you decide who to hate.
So to finish up, I'm going to close by paraphrasing
my law school's namesake, Justice Scalia. To continue with our
current system of government racial classification is to reinforce and
preserve for future mischief the way of thinking that produced
race slavery, race privilege, and race hatred. In the eyes

(01:11:31):
of government, and with regard to our rights and privileges
as citizens, we should just be one race.

Speaker 7 (01:11:37):
It is American, thank you.

Speaker 2 (01:11:48):
So I may be showing my age a little bit,
but I recall there was an SNL skit where Ed
Koch when he was the Mayor of New York came
on and throughout his skit he would break character and
say have you seen my book?

Speaker 3 (01:12:01):
Mayor?

Speaker 2 (01:12:03):
So, David, I was hoping as you walked off, you
would say, again, did you see my book? Classified? I
should I have a copy? I should have brought it
for you to sign. One of the common themes that
I see throughout the discussion of the panelists, we have
Peter who is suggesting that universities have been less than

(01:12:25):
transparent with the racial data of their admits. Sonya, you
have talked about why the numbers may not drop as
we look at the law schools, as we look at
colleges and universities post SFFA, and David you've talked about
the overbroad classifications. With all of those thoughts in mind,

(01:12:47):
what if anything, does enforcement look like? And I would
turn that open that up to the panel post SFFA,
because Chief Justice Roberts has allowed some consideration of race,
it's not completely prohibited. How how is what does enforcement
look like? Is there another wave of litigation? What does

(01:13:09):
that look like? Anybody care to predict?

Speaker 8 (01:13:15):
Well?

Speaker 4 (01:13:15):
I think you know, it's really hard. I think enforcement
in part looks like more lawsuits as the only way
of getting access to the data. But it's uh, you know,
the amount of data that our government collects and makes
public with regard to education, I think is very small

(01:13:37):
compared to other places. So you know, you can easily
see requirements for certain federal funding and sex to be
related to actually revealing revealing data. And I think this
is sort of my hobby horse in general, is that
universities do not use their data. It's not just hiding
their data, but they ought to be using their data

(01:13:58):
to help their students, which they don't do as a
general rule. Let me just give you one example. When
you go off to college, you learn that randomization is
a great way to figure out how things work, right,
So that's why we have randomized drug trials and so on.
But then universities what they do is they randomize, but
then they don't learn from the data. So we do

(01:14:21):
randomize roommates, but we don't ever figure out well what
roommates actually work. And I think that as a general rule,
this hiding the data has big implications beyond just enforcement
enforcement of these rules. So I would like to see
much more push to make the data more available.

Speaker 2 (01:14:40):
And does does anybody on the panel have any opinion
as to as we are undergoing a change in administration.
For example, I read the statement that Harvard made right
after the opinion was issued that said, we're going to
be considering how we move forward, but at the same
time continue our values. And the Department of Justice put
out a statement that remarkably looked quite similar to that

(01:15:03):
and suggested that race indeed could consider to be considered
under certain circumstances. Any predictions with the change in administration,
what that the enforcement on the government side as opposed
to sort of the private litigation might look like.

Speaker 4 (01:15:19):
Well, you can actually see that justin folding of this
a Favorite versus Harvard case, because secure Up administration filed
a brief in support of students re fair admissions, and
then at the Supreme Court the Bride administration argued against
students re fair admissions. So I think there's definitely going
to be a push on enforcement.

Speaker 9 (01:15:37):
Well, this is kind of anecdotal, of course, I don't
know who will be in the administration, but I have
a height. I have a college agent and high school
aged daughter, So I look at programs for summer and
you know, and for applications what I've seen is that
a lot of a lot of universities that run summer
programs and so forth, seem to think that if they say,
instead of this program is meant for people who are

(01:16:00):
from underrepresented minority groups, instead say is for people of
underrepresented minority groups and first generation college students and members
of the military, and they add a couple of criteria
that makes it legal.

Speaker 7 (01:16:12):
I do not think that is correct.

Speaker 2 (01:16:14):
And I have one more question before I'm going to
turn it over the audience. So anybody who wants to
go ahead and get in line and just sort of
jumping off, Sonya, one of the things that wile a
lot of people jumping off one of the things, Sonya,
that you had said that there you can still do
race neutral alternatives. But at what point do you envision

(01:16:38):
that some of the race neutral are alternatives that you
talked about might become indirect affirmative action that is in
fact prohibited constitutionally.

Speaker 3 (01:16:49):
I mean, I'm not sure that anything that any of
the specific examples that I gave are likely to be
characterized as indirect affirmative action. I would say the type
of circumvention you might worry about. So, for instance, I've
written about the what I call the essay carve out
in the Supreme Court's opinion where they say that you

(01:17:10):
can consider kind of qualitatively individualized evidence of race related experience.
And you know, I think the Supreme Court means what
it says, like, you can in fact consider that kind
of experience, but only if it is a genuinely individualized way.
And I think one one thing that would be I
think accurately characterized as indirect affirmative action would be if

(01:17:35):
or circumvention basically would be if the essays were basically
just being used to collect information about race, which was
then being used you know, which, then you know, everybody
who wrote about disadvantage who was in one racial group
kind of got a plus factor and people writing about
similar disadvantage and other groups didn't. Right, So that'd be

(01:17:57):
like the one one type of thing I I would imagine.
And then, of course, you know, if if schools are
using things that are so closely so many of the
things that I discussed, they are correlated with race, like
socioeconomic status, but they're not the correlations nowhere near one
right like the the they they are not so close

(01:18:21):
as to be race proxies, right, they measure something else
that is substantive and important about a person's life, right,
like the actual barriers that they faced due to poverty
and so so I don't think that's a problem. But
but you know, if if you could imagine, you know,

(01:18:42):
sort of more creative use of of race proxies. So so,
I don't know, I mean, I think this will play out.
I guess I would. I would just sort of say
say that we probably, like everybody's kind of raring to
go to me. I think there's like other legal battles
to be decided, probably like before we worry that much

(01:19:02):
about Like I feel like, let it play out for
a few years. The first year isn't the be all
and all of like what's going to happen at these schools.
It's going to take a while for those market effects
to shake out in terms of effects on applications. Schools
are going to continue to adjust their policies and more
information will probably come out, you know, if schools really
are cheating behind the scenes, like maybe you know, some

(01:19:26):
admissions officer is going to say so, right like you
like you know, it was a long at the point
is like they're there I don't think it's the I
don't think necessarily litigation choices made you know this year

(01:19:48):
are going to be the important ones in terms of
of shaping the future of law in this area. I
do expect to see a lot of litigation right away
about things like the extension of SFFA to employment, like
to other contexts besides undergraduate admissions. Right that there's there's
a lot, a lot out there is still left to litigate,

(01:20:11):
and those questions seem to me to be more teed.

Speaker 2 (01:20:16):
Up to go, all right, We've got three microphones, and
what I'm gonna do is I'm gonna go microphone, microphone, microphones.
So I'm just gonna go like this and we'll get
to as many people as we can. But why don't
you start?

Speaker 3 (01:20:28):
Washington State.

Speaker 5 (01:20:31):
Doesn't sell, I'll try to speak up.

Speaker 10 (01:20:34):
My question relates to government contracts set asides for minority
owned businesses. I believe there have been two district court
cases I'm aware of Tennessee and Texas, both of which
struck down those set asides. I'd like the panel's view
on whether you think they'll survive in some form or
whether they will all automatically.

Speaker 9 (01:20:54):
Have to go.

Speaker 4 (01:21:00):
I think they all have to go.

Speaker 3 (01:21:03):
I don't have a strong view because I don't know
the details of it. But one thing to keep in
mind is that if you're talking about a government entity
that has itself engaged in past discrimination, there may be
like a remedial potential use of set asides that could
be justified under a different legal basis than diversity. But

(01:21:27):
I expect that many of those programs, like you know,
I think that's the I think the direction of at
least narrowing their existence is to more particular circumstances like that.
I think that probably is where the courts are are
going to go. But it's not something I have dug
deeply into the middle microphone.

Speaker 11 (01:21:46):
So a centerpiece of the SFFA litigation had to do
with Harvard's the so called personal rating, which took in
like subjective considerations of character and personal excellence. And I
imagine what's going to happen is even in light of
like race blind considerations, you're still going to see disparities
in whom those kinds of metrics preference, and I imagine

(01:22:09):
they'll be challenged in court. So my question is, how
do we thread the needle between allowing non objective, non
standardized considerations of excellence while still maintaining race neutrality, because
of course, America did not become an excellent nation just
on the basis of picking the person with the highest
standardized tests. They also took into consideration personal character and excellence.

Speaker 12 (01:22:34):
Thank you.

Speaker 2 (01:22:38):
I'd say just jump in anybody on the panel.

Speaker 4 (01:22:41):
I think it's really hard, and I think part of
the reason as hard is you'd like to link these
things to later outcomes. Yeah, so if you're going to
have a personal rating, I'd actually like to see it
linked to something that actually matters, and you're showing me
that it predicts just as well for those people. One
of the interesting things about the Texas to Time ten
percent rule is that the people who came in under

(01:23:03):
the Texas top ten percent rule actually did better than
the people they pushed out, which shows you that Texas's
holistic commissions was not doing a good job. If you're
going to measure it in terms of the performance in
college to the extent that it was pushing out people
or doing well in other dimensions, well show it. And
I think that that's actually generally an important rule is

(01:23:23):
we tend to be focused on inputs into the process.
There has to be a link to the output. If
the SAT doesn't predict anything, then this, you know, then
that they have a point about not using it. I
think it does, particularly on stem fields, but you have
to show that it links to the outcomes in order

(01:23:45):
to justify it. I think to me, that's that's why
I guess I would stand on enforcements a whole other
other thing.

Speaker 3 (01:23:52):
Yeah, I mean I got to agree that like that.
I think that it is the case that we can
get too hung up on numbers, not just the demographics
that are being reported, but also on on test scores
and and the you know, the qualitative factors are important.
On the other hand, I do think like it's a
hugely important area in which uh like implicit biases can

(01:24:18):
can infect the way that we assess people. And you know,
I think in the Harvard case, Harvard was like a
perfect defendant for us f FA to choose because some
of the facts unrelated to h Harvard's affirmative action program itself,
We're just hugely embarrassing to Harvard. And like one of

(01:24:40):
those facts was the systematic under you know, the lower
ratings given on these personality traits to in in to
Asian students. I don't know why Harvard didn't say, like,
we're sorry, we're getting rid of that. This like our
bad and like, but that isn't what our the core

(01:25:03):
of our affirmative action program, which we're still gonna defend,
like because you know that was that was bad. So
I just I guess I have to agree that with
the questioner that it's like there's difficult factors to weigh here.

Speaker 2 (01:25:17):
The third microphone me, I'd like to thank the panelists
for good presentations.

Speaker 12 (01:25:24):
I learned a lot first and anecdote. I attended a
Magnet school in New York City some years ago, and
back then you didn't have percentages, but you saw lots
of blacks, lots of Asians, lots of whites. I couldn't
tell you the percentages. Could be that blacks made fifty percent.
I really don't know. Forty years later, it's recent years,

(01:25:46):
it's overwhelmingly Asian sixty percent and about five percent blacks.
And it's been met with outrage among elites or politicians
and the public as well, and they've called for it,
get rid of the test that gets you into these schools,
and even the lead of these magnet schools, absparity is

(01:26:07):
even greater than that racially, So that's something for you
to think about. So One, what is a definition of diversity?
Two why is it important? It just seems to me
that the promotion of diversity is the cancer that we
need to eradicate.

Speaker 2 (01:26:26):
Anyone.

Speaker 4 (01:26:29):
I think it's really interesting to think about. And in particular,
one of the things that's been on my mind is
does somebody like you, Brom Kendy, provide more diversity or
less than somebody like Rolling Fryer. For those of you
guys don't know, Bron Pittkendy is a big anti racist
guy that would be more consistent with particular views Rolling Fryar,

(01:26:53):
you can't put that guy into a box. But he
has said things that might fit more with other groups
besides a particular group. So they actually did something really
interesting in Chile where they had we said we have
to have gender quotas by political party. Well, and what

(01:27:14):
was interesting about that is he actually ended up with
affirmative action for men in the liberal parties and for
women in the conservative parties. And there's something interesting about
that because that's actually getting more the population represented at
a different level. And that's why I think that rolling
Friar question is really interesting. I think it's important that
we don't end up putting people in these boxes, and

(01:27:36):
somebody like him allows you to get outside of.

Speaker 9 (01:27:38):
That, you know, I think that I think the university
has lost whatever the original purpose of diversity was. And
by the time I SAIDFA came around, what we were
really talking about was esthetic diversity, by which I mean
when you look at the view book that they send
out to the students, do is a look like we
have enough students of each group, and it leads to

(01:27:59):
some really are results, including especially if you consider the
classification issue. The example I always gave if you look
at Fisher of a University of Texas unlike which was
in the late twenty tens, unlike traditional form revaction litigation,
which was sort of white versus black for the slots,
this was really a question I've already going to have
more Hispanics or more Asians. And what I thought was

(01:28:21):
strange about that is imagine the Hamong Cambodian from Minnesota
who sends a letter his application. I heard you're interested
in diversity. I understand you've never had someone of my
ethnic backgrounds at your school, and they would say, oh, no,
we already have twenty percent Asians, but let's take in
our three thousand Mexican American student for more diversity.

Speaker 3 (01:28:44):
So I guess I have to bite on the magnet
school question. This is an issue I've written really the
most about in this area. I am also the graduate
of a magnet school, the Thomas Jefferson High School for
Science and Technology, which is at the center of some
recent litigation. And I want to say that, you know
what TJ did with its similar uh that, by the way,

(01:29:05):
was the thing that kind of drew me into this
area of of work. I used to just work on
disparity and discrimination issues in the criminal justice context. The
So what I think TJ is a good example of
a system that looked at a a diversity challenge that

(01:29:30):
it has, and I don't I want to say t
J is a diverse school, always has been, it has.
You know, it is a majority Asian population and a
very diverse Asian community with in in Northern Virginia that
comprises that, uh, that Asian majority. So it's always been diverse.

(01:29:51):
But Hispanic and Black students were sharply underrepresented and have
been throughout the school's history. And you know, the solution
that they landed on. It didn't involve affirmative action, doesn't
evolve classifying any students by by race. Also didn't involve
getting rid of TJ as a magnet school and just

(01:30:11):
lotterying admissions, which is what some people proposed. They have
retained the you know, the essential character of the sort
of super competitive school that it is, and they've done
it largely by giving a plus factor to students on

(01:30:33):
free and reduced price lunch, that is, to poor students,
which jumped after their admissions reform from one percent to
twenty five percent of the population at Fairfax County has
something like a thirty percent overall average of students. So
that basically brought that close to in line with the
with the schools with this with the school system. You know,

(01:30:57):
I think that's a huge win. And doing that umped
up indirectly the black and Hispanic shares. You know, to me,
that seems like a win. But you know, the most
important thing I want to say is it doesn't seem
constitutionally problematic. Right, Like one can go to the school

(01:31:17):
board meetings and argue with them about whether one or
another of the of the choices that they made. Or
they also got rid of a standardized test, right, which
was a standardized prep test that people were prepping for
as early as the third grade. Kind of sick. There
were a lot of reasons to get rid of something
that's that high stakes a test for such young children.

Speaker 4 (01:31:36):
Right.

Speaker 3 (01:31:37):
But but you know, one can quibble about all of
those things from a policy perspective, but I think it
makes sense to leave it to the political process and
to say that, you know, the choice among all of
those alternatives, all of which were totally race neutral, is
something that ought to be decided at the policy and

(01:31:57):
at the level of policy and politics.

Speaker 6 (01:32:01):
Yeah, clearly there you need a benchmark to define what diversity.

Speaker 3 (01:32:07):
To move forward class, got it?

Speaker 5 (01:32:12):
Yeah, you clearly need a benchmark to define diversity.

Speaker 6 (01:32:14):
And so, like in my presentation, I showed you the
minority share of college grads and we sort of use
that as our benchmark of like applicants to law school.
I think it's really hard to measure diversity, and like,
if you can't measure diversity, like, if you can't define it,
how do you measure it? But I do think it's
easier to identify instances when there is there's a lack

(01:32:36):
of diversity. And so if I study law schools a
lot in my research, and so if you look at
law school faculties, especially at top law schools, there are
very few conservatives and so like we have some updated data,
it's like less than ten percent at top twenty to
school something like that. And so you know, it's sometimes
it is easy to identify a lack of it. It's
just a lot of times hard to define or measure

(01:32:59):
different different benchmarks that I think are useful.

Speaker 2 (01:33:03):
We have time for one more question, my friend, Judge Box.

Speaker 8 (01:33:09):
I hopefully talk some about what actually has happened after
because the schools, only a few of them, finally started
giving this numbers, the only number everybody talked about. Professors
had a little doctor Amberg.

Speaker 4 (01:33:24):
As I followed my team came out their.

Speaker 8 (01:33:27):
Blacks drop I two thirds, Hispanic drops different. Amherst dropped
about same sort of thing. That's what the plaintiffe said
is gonna happen.

Speaker 2 (01:33:38):
That's what the defenders themselves, it's gonna happen.

Speaker 8 (01:33:42):
And then all of a sudden, yale instant coming get
you and pro way for arms and give him some possibilities.
But if you had employment and all the blacks were
very low and then they discrimination and half the companies

(01:34:02):
all of a sudden employed twice as many blacks and
the other half. Something is going on, and nobody seems
to talk to gayl and princes about how did you
do this? Because their own studies and I get.

Speaker 4 (01:34:22):
Some talks on those said, we can actually keep a person.

Speaker 8 (01:34:27):
We just go random and are following by atractive to.

Speaker 2 (01:34:31):
Make them like very god.

Speaker 8 (01:34:34):
So somebody should used to ask Gail, how did you
do it? When m I t and Ambers for sure both.

Speaker 3 (01:34:46):
Question of what.

Speaker 4 (01:34:47):
Happened after guest stuff.

Speaker 2 (01:34:50):
Anyone?

Speaker 9 (01:34:51):
Uh, you know, I agree with Professor Starr that you
can't easily draw conclusions from very limited data about specifics schools. However,
I do think that partly because the schools all signed
in amikus brief saying they couldn't possibly keep their numbers
the same without using race, but they did would certainly

(01:35:14):
if I were a plaintiff, I would, or if I
were judge, I would be very reluctant to have to
even entertain emotion to dismiss given that they signed that brief.
But beyond that, well, I find honestly kind of suspicious.
It's not simply that some schools didn't change much, but
there were a few schools Duke Yale, there's one other
where the numbers of percentages were almost exactly the same.

Speaker 7 (01:35:36):
For every category.

Speaker 9 (01:35:37):
And the odds of that happening randomly if you've completely
revamped your emissions process because of SFFA seemed to be
to be quite small. Not impossible, I suppose, but quite suspicious.

Speaker 3 (01:35:54):
Okay, But the odds that the numbers will be similar
somewhere when you're looking at does of different schools are
not that low, right Like that that The fact is
you have a kind of observer bias where you're searching
for the ones that fit the story that you're waiting
to pounce on. And of course somebody and a large
use landscape where they're competing with each other is going

(01:36:17):
to fit that story. Look, I don't know what's going
on at Duker Princeton or Yale. Like you know, I'm
not here to say that for sure they're not circumventing
s ff A. I just think that, you know, the
mere fact that like Mi T suddenly didn't admit that

(01:36:38):
a bunch of black students didn't go Tom I T.
Well that maybe they're at Yale. Right like this, there's
a limited pool of students. They compete for each other.
What their competitors do matter. It's a complicated and and
you know, MI T MI T faced a bunch of
negative headlines after its new numbers came out. People said, oh, look,

(01:37:01):
MIT's numbers for black admits went way down. That just
proves that it was racially discriminating earlier. Then YELLE comes
out with its numbers not changing. Nobody said, well, that
just proves that YELL wasn't racially discriminating earlier. Right, it's
sort of damned if you do, and damned if you're
doad if you're one of these these schools, and so
you know, I think we just we need to not

(01:37:22):
be so confident in our interpretation of numbers that fit
like a narrative that we're we're looking for. We don't
quite know what's happening.

Speaker 2 (01:37:32):
I think that's a great place to end, and I'd
like to thank all of our panelists, certainly to the
audience for joining us. And one bit of housekeeping there
is a reminder that the next event, which is the
Robert Bork Memorial Lecture and Reception is starting right now.
There's no break and it's

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