College Admissions After SFFA

On Thursday, June 29, 2023, the U.S. Supreme Court issued its decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. In a 6-3 decision, the Court held that Harvard and the University of North Carolina’s admissions programs violated the Equal Protection Clause of the Fourteenth Amendment. Two months later, The U.S. Departments of Justice and Education issued a joint guidance document addressing the decision.

Court observers have put forth different analyses concerning how far-reaching this decision may be. Will corporate diversity programs be stopped? What about government initiatives? The jury is still out, but one thing will certainly change – college admissions.

How will college admissions offices across the country change their policies? What should high school students know about the changing landscape? What methods will be employed in pursuit of racial diversity? Please join us as an expert panel addresses these questions and more in pursuit of understanding college admissions after SFFA.

Episode Transcript

(00:01):
Welcome to TeleForm, a podcast ofthe Federal Society's Practice Groups. I'm Nick
kas Barrack, Vice President and Directorof Practice Groups at the Federal Society.
For exclusive access to live recordings andpractice group TeleForm programs, become a Federal
Society member today at fedsoc dot org. Hello everyone, and welcome to this
Federalist Society virtual event. My nameis Sam Fendler, and I'm an assistant

(00:25):
director of Practice Groups with the FederalistSociety. Today, we're excited to host
college admissions after s FFA. We'rejoined today by RC Coleman, Corey lu
and Will TrackMan. Unfortunately, ProfessorAmanda Shaner will not be able to join
us today as she's dealing with afamily emergency. We send her our thoughts
and prayers. Our moderator today isKen Marcus. Ken is the founder and

(00:50):
chairman of the Brandeis Center for HumanRights under Law and former Assistant US Secretary
of Education for Civil Rights. Kenalso serves as the Executive Committee chairman of
the Federal Society's Civil Rights Practice Group, and we thank him for his service
and that capacity. If you'd liketo learn more about today's speakers, their
full bios can be viewed on ourwebsite fedsock dot org. After our speakers

(01:15):
give their opening remarks, we willturn to you the audience for questions.
If you have a question, pleaseenter it into the Q and A function
at the bottom of your zoom window, and we'll do our best to answer
as many questions as we can.Finally, I'll note that, as always,
all expressions of opinion today are thoseof our guest speakers and not the
Federal Society. With that Ken,thank you very much for joining us today,

(01:38):
sir, and the floor is yours. Sam. Thank you for that
introduction, and thank you also forall the work that you have done in
putting this together. I'm very pleasedthat the Federalist Society is putting together this
very timely event on behalf of theCivil Rights Practice Group. I welcome both
our speakers and our audience members.Today is timely because on this day around

(02:00):
the country, countless high school studentsare hitting scent on Early Action and Early
Decision applications that are due November one. This is the first wave of applications
that is being submitted in the aftermathof the US Supreme Court's decision, and

(02:20):
students for fear admissions a lawsuit againstboth Harvard University and the University of North
Carolina, And so this is thefirst wave of applicants for whom the decision
will provide a basis for action bycolleges and universities. We all know that
this was a major decision, butwhat it will mean specifically for college admissions

(02:43):
in the future, what it shouldmean as well, is a question for
which I would say that expert opinionwould be welcome. For those who welcome
the decision, there remain questions abouthow scrupulously it will be followed by colleges
and universities, and whether racial preferencestruly will be wrung out of the admission

(03:07):
process. Will preferences be pursued indirectlythat cannot be pursued directly, Will essays
or other sorts of questions be usedin lieu of a direct use of race.
For those who do not welcome thedecision, there are questions as to
the extent to which diversity, howeverdefined, will be pursued by colleges given

(03:32):
the decision that we have just seen. Diversity, of course, is a
term that can be defined in variousways. Some people use it to refer
to the racial composition of the enteringstudent body, other to a multi factored
set of criteria which may or maynot include race, together with such things

(03:53):
as geographical location, state citizenship,abilities in boards, art or other areas,
and perhaps even the disadvantages which onehas overcome. So there are many
questions, even within higher education aboutthe future of this case. Will it

(04:13):
be followed, and how will itbe followed? And will it be followed
only in the letter or also inthe spirit, And what do we make
of this? As Sam Fendler mentioned, one of our speakers unfortunately was unable
to attend due to last minute circumstances, but we are grateful for the speakers
who are here. Will TrackMan iswell known to many in the Federalist Society

(04:35):
General Council of Mountain States Legal Heis also a former Deputy Assistant Secretary for
Policy at the US Department of Education'sOffice for Civil Rights or OCR. I
had the pleasure in honor of servingwith Will at the Office for Civil Rights.

(04:57):
Our Coleman is actually another alumnus ofthe Office for Civil Rights, although
I did not have the pleasure ofworking with him there, as he served
during a different administration. He headedup policy and developed during his tenure during
the Clints administration, a reputation asone of that administration's top experts on policy

(05:18):
issues, especially with respect to highereducation, a reputation that he has further
advanced during his subsequent career at EducationCouncil, and as someone who perhaps knows
about as much about the legal andpolicy aspects of admissions as anyone whom I
know. Corey lu a distinguished attorney, former Assistant General Counsel to Governor Greg

(05:44):
Abbott of Texas. He is activein this space, and I would say
is one of the emerging leading voiceson the question of racial preferences in higher
education. The fact that he alsohas a Harvard background also perhaps gives particular
pertinence to his participation. We welcomeyou all. For those in the audience,

(06:10):
please feel free to enter questions ina Q and A section as they
come to you. At this point, we will welcome will trackmen to speak.
Thanks Ken. I'm going to groundthe Harvard and UNC opinions first,
and then talk a little about whothe Court was writing for in its majority

(06:30):
and dissenting opinions, and then beforeI hand it off, to art to
talk about some of the immediate implications. I'm going to talk about an OCR
letter, a letter that the Officefor Civil Rights and the Department of Education
issued on August fourteenth, purporting tointerpret the SFFA decision as to what it
means and how it will apply touniversities going forward. And so let's start

(06:55):
with just grounding. Over four decadesago, in the nineteen seventies, the
US Supreme Court, in a verysplit opinion in a case called Baki,
rejected the idea that schools could simplydiscriminate based on race with no other goal,
in order to affect the demographics oftheir student body, but they could
consider diversity as a compelling interest asto why they might want to use race

(07:20):
as one factor in the admissions process, and that regime held up for decades.
In two thousand and three, itwas reaffirmed in a case called Grutter,
and then in twenty sixteen it wasonce again that god in a case
called Fisher. So the Harvard andUNC cases came to the court against that
backdrop. Both of the schools arebound by the same laws that the UC

(07:44):
Davis was in Baki. Title sixapplies to Harvard even as a private school,
So that means that schools that acceptfederal funds like Harvard can't discriminate on
the basis of race. And ofcourse, the University of North Carolina is
a public school, so it alsocame discriminate based on race under the equal
protection clause of the fourteenth Commendment,and the Court decided in a six to

(08:05):
three decision in June the admission systemoffering a preference based on race is both
unconstitutional as it goes to UNC,and also a violation of Title six as
it goes to Harvard. The oralargument in the case gave a lot of
the insight into what the justices werethinking as also to what the school's defense

(08:30):
was going to be. Harvard saidthat their racial preferences were just a minor
factor, similar to something that theymight give an obo player, but Chief
Justice Roberts forcefully rejected that line ofargument, and his classic line that I
think will echo beyond the oral argumentwas we didn't fight a civil war over
obo players. The opinion itself afterit came down was very broad, So

(08:54):
even though it's just technically about UNCand Harvard, it talks about race in
very broad term. For instance,it notes that the schools, both Harvard
and U and CEE use of broadracial categories was arbitrary, so putting all
applicants into six buckets Asian, Native, Hawaiian, or Pacific Island or Hispanic,
White, African American or Native Americans, that those buckets themselves were arbitrary

(09:20):
and not significantly contributing to diversity.They were especially prone to criticism on the
diversity issue, and one example thatthe Court used was that under this rationale,
it would technically be better to havefifteen percent of students from one country
like Mexico, as opposed to tenpercent of students from a wide range of
Latin American countries. They would presumablybe more diverse than having fifteen percent,

(09:43):
but because of the buckets defining individualsbased on race, that the schools were
getting it backwards and they weren't reallyinterested in true diversity. The Court also
broadly held that race doesn't translate todiversity because a person's race doesn't determine their
outlook in life, their experiences,their viewpoints, or their potential contributions to
the student body. And in thebroadest line in the opinion, Chief Justice

(10:07):
Roberts wrote, eliminating race discrimination meanseliminating all of it, and that line
will certainly be quoted frequently. TheCourt also responded to some of the arguments
in the Descent, which urged schoolsto maybe use a back door to consider
race, and Chief Justice Roberts saidit would be unwise to listen to the

(10:28):
dissent in the opinion, and thatif a school tries to do something that
gets at race through a back doorthrough a proxy, that that would be
just as unconstitutional or a violation ofTitles six as the direct racial preference.
So that certainly will come back infuture cases. There is one limited I

(10:52):
would say carve out to the rule, although it's not truly a carve out.
The Court says that you can askapplicants about their life experiences, and
so you can ask them what challengesthey've overcome in their life. And there's
nothing wrong with an individual applicant sayingI've overcome race discrimination based on my skin
color as part of their application,and that's still fine that the decision doesn't

(11:16):
prohibit that. But of course manyof the universities that read netline will say,
well, there's something there that wecan continue to use to affect diversity.
Second, I want to talk aboutwho the court was writing for.
This wasn't an opinion in a narrowarea of law. This wasn't a maritime
decision that'll have minimal consequences on othercases going forward. The justices, when

(11:39):
they were an issue their opinions knewthat they were writing with broad language,
and that they knew that that languagewould come back to them again and again.
It's no mystery that a case ofthis nature that many have described as
a blockbuster, will be used ina number of different contexts. So just
since June thirtieth has been cited onehundred and ten times in different appellate briefs,

(12:03):
including one of my own in anemployment law case. And it has
been cited by courts forty seven timesalready just since the end of June.
So you're talking about a watershed casethat's already having an impact on the federal
judiciary. It's also been applied inother contexts like the federal contracting space,
and I would expect it to beapplied at least in the university scholarship context,

(12:26):
just like Baki before it was appliedto achieve diversity through scholarships. Third,
beforehand off to Art, I wantto talk about some OCR guidance or
guidance that issued from the Department ofEducation's Office for Civil Rights. You heard
that we have three alumni from thatoffice on the call here today. So

(12:48):
the Department of Education has a numberof different divisions. One of those divisions
is the Office for Civil Rights thatNCC investigates and enforces a number of civil
rights statutes, including Title six barringrace discrimination by recipients to the federal funds.
And OCR issued guidance as it iswont to do interpreting the Harvard and

(13:09):
U and C decisions, and beforethat it announced that it was the law.
In terms of its future guidance,some non non government groups were saying,
now that Harvard and U and Chas been decided, schools can't collect
racial data or and they were sendingletters to school and the Assistant Secretary for
Civil Rights said, you will knowwhat UNC and Harvard mean when we tell

(13:33):
you what they need. And thathappened on August fourteenth. That guidance says
that's the key moment in time afterthe decision, this Faye decision is the
decision on admission itself, but thatdoesn't include targeted outreach, so schools can
still send mailers to potential students basedon the race of that potential student.

(13:56):
They can also do targeted recruitment,which means that even though they can't give
a preference at the time of admission, they can spend their recruitment dollars on
race. So that might mean spendinga number of their recruitment dollars on college
fairs in areas where they know thatnon white population is significant and perhaps overwhelming,

(14:18):
and they can invest in targeted pathwayprograms, So that just means that
before you go to college, therecan be a pathway program like a summer
camp ahead of time, and thatschools can continue to appeal to individuals for
those programs based on race. Andthe schools can also tinker with their admissions
mechanics, so that includes changing theirapplication fee status, their standardized testing requirements

(14:41):
like SAT or ACT. They canchange what they require for pre requisites,
like not requiring calculus anymore, andthey can change their early decision timelines,
which can just alluded to is comingup very soon. And essentially what ocr's
position is that schools can do everything, but make a decision using race

(15:03):
as a factor in the admission's officethat they can do this recruitment, this
target outreach, these pathway programs thatdon't implicate SFFA. It's not sure what
would happen if another school spent onehundred percent of their budget recruiting from heavily
Caucasian areas. I think people wouldhave a different feeling about that. But
for the time being, ocr's definitivestatement, or their purportedly definitive statement about

(15:26):
the s FFA decision, is thatschools can continue to consider race in these
pre decisional aspects and that they canstill try to achieve a diverse student body.
So that let me turn it overto our to talk more about the
immediate implications of the decision. Thankswell, and thanks everyone for having me.
I'll start by just recognizing that ithas actually been four months in a

(15:50):
day since the decision. For someof us, it feels like four years.
Given the sort of amount of consequentialimpact of the Court's decision. I
agree with with Will on that front, and so what I want to do
briefly is just reflect on the lastfour months and sort of set the stage
four I think we are, asa practical matter in the field of higher

(16:11):
education enrollment decisions, talking briefly aboutthe initial confusion around the case, given
some of the fine lines that theChief Justice true, then the challenge of
navigating those fine lines, and thenthinking about the broader implications that we'll just
touched on briefly in terms of thedepartments guidance. The confusion I think was

(16:33):
palpable because a lot of the rhetoricon the case in the immediate way was
you saw headlines like affirmative action isdead or you can no longer consider anything
having to do with race and admissions, and as Will just suggested, that's
I think not true in a realsense. I would argue, number one,
we're not talking about affirmative action here. This is about the mission focused

(16:56):
educational benefits of diversity, which isnot that medial corrective lens that typically accompanies
a kind of affirmative action case.They get sort of notable that this decision,
the majority did not use the termaffirmative action to describe the policies in
play. More fundamentally, though,even as the Court was very clearly telling

(17:18):
higher education you may no longer consideran applicant's racial status in the equation of
holistic review as you are deciding whoto admit and who not to admit,
Court said this, and I'm justgoing to quote this language really important as
we think about the blueprint for movingforward. Nothing in this opinion should be
construed as prohibiting universities from considering anapplicant's discussion of how race affected is or

(17:44):
her life, be it through discrimination, inspiration, or otherwise. The touchstone
of an individual's identity must be withrespect to challenges best at, skills built
or lessons learned, not the colorof their skin. So the practical reality
is we're of navigating this space nowis colleges and universities are looking to see
number one to ensure that they're notconsidering the fact of an applicant's racial identity.

(18:08):
The fact that a student may bea student of color can no longer
play a role in the admission's decision. While at the same time, a
student might say, whether it's throughan interview or through an essay answer,
there's something about their background that leadsthem to have a particular viewpoint or perspective
or interests that may be expressly associatedwith their racial identity, they can identify

(18:33):
that. That's the point that Iwould say, it's important for an institution
to identify what is the quality thatthat is aligned to tie to your mission,
A race neutral quality into which astudent's racial identity may play, but
again not as to racial status,but as to their experience or perspective shaped
by their lived experience. And sothat's the fine line we're navigating. I

(18:57):
think beyond the question of admissions,the implications are there are many obviously unanswered
questions we don't have. We haven'thad a lot of time to have much
precedent in this arena. But Ithink there are some fairly good common sense
principles that are defining the space,some of which the Education and Justice touched

(19:18):
on this first question on just thedata and use. Again, the Court
didn't discuss data and use, butI think there's a very sort of clear
recognition, and this is one linefrom the Department's guidance in collecting the using
data, institutions should ensure that theracial demographics of the applicant pool do not

(19:40):
influence admissions decisions. I think that'sa very clear sort of import from the
Court's opinions of what you're going tosee. I think with a vast majority
of institutions where race may be afactor in some way in the sort of
experiential process moving forward, they're lookingto create firewalls to really establish the fact

(20:00):
that no one involved in the admissionsprocess itself, in the actual selection decisions,
has an awareness of what that potentiallyevolving racial composition of the class looks
like. We'll touched on recruitment andoutreach, and I'll just say the broad
points I think that the Department ofJustice and Education raised are fine, invalid.

(20:22):
I think it's important to recognize thatfederal cases at the circuit level and
at the district court level, foryears, I think, consistent with some
historical OCR guidance, have recognized thatinclusive recruitment and outreach practices and that's actually
a legal term of art, aregenerally fine and actually don't even raise the
spectra of discrimination because you're not inthose kinds of practices where it's a question

(20:47):
of where do I fund, wheredo I send recruiters, how do I
target certain areas of the country orcertain populations within certain areas. I think
the question there is how do Iinvest? Is not is there a particular
individual benefit tied to some student andnot others that could be tied to their
racial status? And so that lendsas a broad proposition, has given courts

(21:12):
the foundation to say you can doa lot more with broad based, inclusive
recruitment and outreach policies, even ifthere's some racial targeting in that mix,
as long as you're not conferring thatindividual benefit to some students and not others.
I think the really big question thatinterestingly neither Department of Justice or Education

(21:37):
has addressed in the wake of thedecision is on financial aid and scholarships.
And there, I will say ageneral view I've seen it in lots of
circles to say this was just anadmission's case and it has no implications beyond
admissions. I actually don't believe that. I actually think the implications are present.

(21:59):
I don't think they're necessarily controlling inevery case. But with respect to
admissions, I think the simple questionis, if you, as an institution,
we're going to advance a race statusconscious practice tomorrow, what would be
your compelling interest? And this iswhere just to circle back on the Court's
ruling itself. Even though the Courtdidn't as FFI they had asked expressly overrule

(22:23):
it's forty five years of precedent.It let Grooder and its progeny stay put,
if you will. In terms ofactual precedent, I think it fundamentally
eviscerated the holding of Grooter and itsprogeny around what were historically considered to be
legitimate compelling interests to advance the benefitsof diversity, because it basically took those

(22:48):
very interests that had been argued previouslyand prevailed and said with respect to Harvard
and you and c. They wereinsufficiently concrete or coherent enough to justify this
status iteration. And so I thinkthe challenge for institutions going forward in the
immediate term this year this cycle isthinking through how you would and what authority

(23:10):
on which you would base an articulablecompelling interest. In frankly, I think
we have right now a blank slate, notwithstanding the fact that you've got the
interesting footnote from the majority opening thedoor to interests that might be proffered by
military institutions, and I think SPAhas or hesued two of those. So
that will be a set of questionsabout what this footnote opens the door to

(23:34):
in terms of the legitimacy of differentlyframed or articulated compelling interests moving forward.
But for the short term, Ido think there are actually consequential implications even
in the arena of financial aid,even as there are some creative ways you
can design financial aid in this space. I'll stop there and pass the baton
degory, thank you well. Oneyear ago exactly, actually, I was

(24:02):
in DC at the steps of theSupreme Court along with other Asian Americans who
were disturbed by the facts of whathad come out at Harvard in terms of
how they were treating Asians in theadmissions process. And the oral argument was
on Halloween. And so here weare a year later, and I think

(24:26):
for many of us it finally validatedkind of our worst fears about how Asians
were being viewed and treated, buthad sort of been it, sort of
been denied by proponents of these policies, by some courts that hadn't really paid
attention to it, and given AsianAmericans kind of the attention that they deserved,

(24:47):
and said, this case finally finallybrought that to the forefront. Reading
the Court's opinion, I think itdid are said, it eviscerated the previous
policy, and I think it's certainlyfundamentally changed the way college admissions will work.
Part of the court the Majorities rationalewas that these racial categories are overbroad

(25:14):
in some ways, under inclusive insome ways, are very arbitrary. Why
are all Asian Americans loves together peoplefrom China and India. They don't necessarily
look alike or speak the same language, but in America, for some reason,
we group them together. Why doesHispanic include people who might be from
Spain who are Caucasian. How didsomeone who's Middle Eastern identified? I came

(25:37):
up at the World argument, andthe attorneys, the attorney for the University
of North Carolina didn't really have ananswer for even just how was that person
supposed to be classified? And thenthe court also noted that using these categories
there were harms being opposedly, theschools kept saying, you're raising can only
help you, It can never hurtyou. But you're helping some groups.

(26:00):
That means other people are being heldto a higher standard for admission, and
there's differential treatment based on race,and that is effectively a penalty for those
students and that's when the schools arearguing that we need these policies to keep
our kind of the proportions of arepresentation of different groups in our class.

(26:22):
That's an implicit admission that these policiesare doing something. They are they are
having an effect, and that meanssome students are getting in because of their
race, and other students therefore arebeing excluded and being treated differently. And
the court also know that this ideaof looking at the numbers and considering representation,

(26:45):
that that's effectively racial balancing. Andso after Grouter, there was this
sort of tension. Right, well, you can consider race to achieve certain
goals, but then what are thosegoals? Right? You can't have a
quota, because the courts made clearthat having numerical goals is unconstitutional. But
then Ruter still seemed to open someroom for achieving some sorts of numerical goal

(27:10):
as long as the number as itstated. And so that was always at
tension there, and the Fair Admission'sdecision makes pretty clear that that's a problem
with how these programs are operating.And in the case of Harvard, I
mean, it was pretty clear thatthey had these one pages they were using
to track the demographics of the classthroughout the admission cycle. They at the
very end, when they were kindof shaving off the last few students from

(27:33):
the class, they were using race, and the numbers showed the proportion of
the class of different racial groups stayedroughly the same year after years. So
it looked like racial balancing, whichyou know, arguably grouped that that went
beyond what Ruter allowed. And yetbecause of this sort of idea that well,
you can still try to achieve certaintargets like critical mass terms like that,

(27:56):
that it was effectively accellent a quota, and so the core has pretty
much it made pretty clear that usingthese racial categories too, it's too crude,
but it's not really You're not reallytrying to get to know someone,
right, You're just throwing them intoa category. And I think even the
justices who believe these policies are constitutionalhad to acknowledge that. And so I

(28:21):
think using those categories and tracking thosenumbers is pretty clearly not it's going to
be something that can continue after Router. I mean, what you know,
did they overturn Grouter or was itjust that Grouter had reached that point where
they said we expect after a certainamount of time, these policies will no

(28:41):
longer be needed, and they can'tin fact, constitutionally continue forever. You
know, I think either way,the use of those racial categories is no
longer permissible, and I think we'veheard reports that schools are starting to move
away from that, which is heartening. So what do we have after that?
Now there's been concerns raised to whatwill schools do to try to get

(29:04):
a similar goals, and are anyof those arguably discriminatory. I think the
answer to that question, like inany civil rights case, turns on the
facts of the particular case. Youknow, we have the Arlington Heights test
for whether a facially rased neutral policyis nonetheless motivated by discriminatory purpose and has

(29:26):
a discriminatory effect, and is so, then it will be treated as unlawful
and discriminatory. And so I think, as in many other areas of civil
rights litigation, that that will bea question that can be raised and will
turn on the facts of the case. I think we know the Coalition for
TJ case raises one such claim wherea public school, a magnet school,

(29:47):
had changed as admissions program and theresult was a significant drop in the number
of Asians, and there was evidenceof communications between people involved in the decision
that talked about Asian and how thisis going to look and then the number
of vasions that are going to bein the class. So that could be
evidence of discriminatory purpose, and sothose types of claims will be able to

(30:10):
continue to be to be litigated.And I think that you know that certainly,
as Art mentioned, there's room forsort of diversity programs that don't look
at race or only consider sort ofpeople as individuals, and to the extent
they raise their identity as a factor, that is one thing that the court
may look at, but then gettingto know that person as individual and in

(30:33):
doing so that may be something closerto part of what the Grouter decision was
actually trying to say, in termsof just making race a small factor as
opposed to really just trying to getthe numbers to look a certain way.
At the end of the year,so we're going through an admission cycle,
as Ken mentioned, students are applyingfor college right now, so it remains

(30:53):
to be seen what the results areand how this process will occur. But
I think the the thing I wantto close on is just to sort of
eyes the message of the fair admissionscase and hopefully that that will be something
that as sort of time moves onand sort of the people who were directly
involved in this move on in thenext generation comes of younger people, that

(31:18):
we can look at this and acknowledgethat this is not a conservative or liberal
issue. That even though in thecourse of the litigation there were statements that
were made by the universities almost saying, you know, who are these Asians?
They don't exist, right, noneof them testified at court, but
that there really have been a lotof Asian Americans who felt that these policies

(31:40):
did not treat them fairly, thatthey weren't being looked at as individuals,
That there was this sense of whetheryou call it fear or resentment, or
just that we don't want too manyAsians. They're taking all these tests and
things like that, and they wouldmake up too much of the class and
nobody like that. But those fearsthey're still there, That they were there

(32:02):
for many years as the number ofAsians were rising, and even after this
opinion that, of course, thesame motivation still exist, and an opinion
is just you know, a lawis just a law in the books,
and opinions depend on the books,But what really matters is having people respect
and internalize it. And I wouldsay too, sort of the litigants who
were on the other side of thiscase, I would hope that they would

(32:25):
take away from this case some appreciationfor the perspective of folks who maybe hadn't
really been included the discussion before,and that if you're going to fight for
all people of color, all racialminorities, for genuine equality and inclusiveness,
that you have to be able toput yourselves in the shoes of other people

(32:45):
too. And I can't just betelling this or that particular group's story.
And you know, if you lookat the dissenting opinions, there's not really
much of an attempt to sort ofput themselves in the shoes of Asian Americans.
And so I would hope, youknow, once sort of the immediate
aftermath of the litigation is kind ofin the history books and we're able to
look at it sort of more objectively, that we could realize that there was

(33:09):
a real story to be told here, that there were really people who felt
that they were pulsees and that nobodywas recognizing it until finally Supreme Court made
this decision, and that whatever policieswe come up with going forward have to
be genuinely inclusive and all people equally. Thank you, Coreyan, thank you

(33:31):
all. I have to apologize thatI lost connection for a portion of two
of the panelists talks, but heardenough to realize that we heard very helpful
insights for all from all three.I have a question or two, and
I see that audience members have alreadyput some questions in the chat. But

(33:52):
before we turn to questions, ifany of the panelists had very briefly any
thoughts they wish to for in responseto any of the other panelists, so
we could take that up just acouple of quick points. One seems like
we have universal agreement that this wasnot just about what UNC and Harvard were

(34:14):
doing. This wasn't just that theywere doing diversity wrong or racial preference is
wrong. That this decision applies toevery school, every public school, and
every school that accepts federal funds inthe country, and that there is a
duty to avoid racial preferences in thisadmission cycle. There's no all deliberate speed
type phrasing in the opinion that thisopinion affects immediately all those schools that would

(34:39):
otherwise rely on grud or Fisher orBaki in order to create educational diversity.
Second, I want to mention thatthere are cases, in response to something
that aren't mentioned, that do talkabout correcting disparities still being discriminatory. So,
in an employment law case called RICHI, the Supreme Court held that even

(35:00):
an employer's efforts to correct a racialdisparity was itself a race based decision.
And in a case called Manhart,which was most recently cited in the boss
Stock opinion, the Supreme Court heldthat an employer's efforts to require women to
pay more into a pension fund wasit self sex based discrimination, even though

(35:22):
the reasoning for that was that womenlive longer than men, and so at
the top level the equality evened out. And so even when you have these
disparity correction programs, those still countas discriminatory. I don't know if ourt
Coleman wishes to respond, sorry,I was on. I think the only

(35:50):
thing I would sort of just elevate, going actually to point that Corey made
because he used the courts language whichreally characterized the processes as a classification based
on race, and I will say, yeah, that's now the way we
are constructing these policies after the fact. But I think understanding holistic review in

(36:12):
its sort of best, most authenticself, and I'm even looking at language
from the UNC record right now thatemphasizes that there is actually no kind of
check the box thinking it's actually avery comprehensive individualized review. I think probably
higher education has not been transparent enoughabout what it does and how it doesn't.

(36:35):
And I hope this moment in timewhere we're now navigating the fine lines
between the prohibited status, but theability to consider an applicant's racial experience will
lead us to do a better jobof talking about what that holistic review in
its authentic, sort of fundamental perspectiveon individual applicants looks like. Because I
think there's been a lot of mythologyabout the kind of mindless check the box

(37:00):
application of a racial status that Ithink, just in my experience has not
been typically the case. Okay,so here's a question that I have a
couple of our speakers have either questionedwhether GRUTER was overturned or stated more clearly

(37:21):
that it was not. We knowthat the courts will likely soon take up
penny cases regarding the use of racialpreferences by service academies such as West Point
to the now Naval Academy, puttingthose aside, do the panelists, and

(37:42):
I'll ask first art, do yousee a prospect of colleges or universities trying
to profer alternative justifications for the useof racial preferences? That is to say,
do you foresee that there are collegesor universities who are saying, look,
gruder wasn't exactly overturned. We won'tdo what Harvard did, we won't

(38:06):
do what UNC did. We're notserviced academies. But there may be other
justifications for the voluntary use of racein admissions, And if so, what
sort of justifications do you see thempotentially proffering. So it's a really good
question, and I think it's aquestion really for the mid and longer term

(38:30):
in terms of potential legal strategies thatare out there. I would actually say
I think that the footnote four ofthe opinion, which opens the door to
the military academy exception, I'm struckby the hook for that footnote and the
hook for that footnote was the factthat the Solicitor General spent the vast majority

(38:53):
of her time making that argument.I think fundamentally to try to get the
Court to recognize the brought a sortof power of diversity and how it just
played in a military context. TheCourt saying here, we didn't get briefed
on the issue. We're not addressingthe issue here. For me, that

(39:13):
opens the door to the question ofwhat are the other potentially compelling interests that
would be more concrete or more coherentin a court's view, that would meet
a threshold test. And I wouldsay, because and I'm struck by this,
the fact that the Court did nottake SFFA up on the overrule decades

(39:35):
of precedent, but left that precedentvery expressly saying we are following precedent.
I dispute that analysis. I don'tthink you can really read the opinion and
say you're following precedent. But that'smy construction of the court's opinion. The
Court is saying we followed precedent,and this result follows. As a consequence

(39:58):
with that conclusion, the techn parametersof the greater opinion are still viable.
That is, there's at least theoreticallysome compelling interests and then some narrow tailoring
design that might be distinguishable from theHarvard and U and see facts. I
think that's absolutely an avenue that willget more attention. I think potentially even

(40:20):
beyond the military context. The onearena that strikes me as among the most
intuitively compelling, even for diversity cynics, is the feel of medicine and admission
to medical schools. When you seethe kind of healthcare disparities and the kind
of data that exists there, Ithink there are potentially other ways to craft

(40:42):
that interest. So long story short, I think this is going to be
an area for litigation in the futureas well. Interesting do any of either
of the other panelts have anything toadd to that question? Well, I
actually think it'll build the other direction. I think the question is whether nationals
security will survive as a compelling interestto engage in race discrimination. And as

(41:07):
I made my second point, thecourt knew what it was doing when it
was crafting this broad language about thearbitrariness of racial categories and how your race
is not tied into your experiences,your outlook, your viewpoints. So I
would caution schools against underreading that sortof broad language, which is going to

(41:27):
come back again and again for anyschool that tries to say, well,
we've got a different way of doingracial preferences that might survive muster, particularly
because you can bring a loss ofthe under nineteen eighty three for equal protection
violations, and under Title six there'sa private right of action. So any
school that hopes to do this isincurring in tremendous legal exposure by saying we

(41:52):
think that we found a way thatwe might escape s FFA. All right,
I'll turn to the questions. DevinWest to ask the question that's actually
similar to what I would have asked. He asks whether the panelists believe the
court's decision re leaves room, asthe Biden administration indicates, for schools to

(42:15):
consider race during the admissions process,broadly speaking, such as during recruitment.
In other words, as the FourteenthAmendment ban on considering race directed only at
the decision point. There are someareas where it feels really intuitive that a
school ought to be able to dosomething like going to a college fair an

(42:39):
inner city in order to recruit andmake it known that Harvard is accepting applications
and unc is accepting applications. Onthe other hand, there's something that's intuitively
wrong about saying, well, whatif a school offers fee waivers at these
college fairs or for every person whofits one of these racial pockets. Though

(43:00):
a fee waiver is in the samething as an admissions decision. And of
course you could envision preferences for zipcodes that they are designed to target race
as a direct proxy, and soyou might end up sweeping in some Caucasians
as part of a zip code preference. But the end result is to jerry
mander your racial numbers. And Ithink all of those are going to be

(43:21):
highly questionable. Again, the RICCIand Manhart cases identify these sort of disparity
correction programs as themselves based on race. And of course there's a pending CERVE
petition and the Coalition for TJ case, which is a K twelve case about
whether the Thomas Jefferson School in Virginiacould change its admissions program in order to

(43:43):
change its demographic numbers. So Ithink they're all very questionable. After s
FFA, well, I think itwould depend on the facts of the case
kind of as I mentioned, youknow, as all discrimination claims that you
kind of look at the intent,what's the effect, You could see how
such an effort could be construed ifthere's other evidence of discrimination. So,

(44:07):
for example, in the Harvard case, there was evidence that Harvard did have
a different threshold for white students tobe invited to apply to Harvard who are
from what they called sparse countries basicallyunderrepresented states, smaller states with less competitive
applicants, a different threshold for whiteapplicants than Asian applicants. And it was

(44:30):
actually they sort of in a waylowered the standard for what we had to
get on the PSAT to get theinvitation. And then you combined that with
actual all the other factors that weregoing on that made it harder for Asian
students to give them White students,the different standards being applied and all of
that, you could see how thatpiece of evidence really could strengthen the case

(44:51):
of discrimination. On the other hand, if it actually turned out that there
was genuinely no effect at all tothe applicant, you would an alleged we
aggrieved point to you know, havea harm to plead you know, maybe
not, and perhaps have it genuinelylooked like it was all sort of an
effort to create an appearance. Butat the end of the day, you
know, the minority students they wererecruiting either were rejected because it didn't be

(45:15):
the standards, or because you knowthat they were so outstanding that they went
to some other school and that didn'thave any effect on the number at all.
And you know, maybe in thatcircumstances it would be hard to prove
discrimination, so it probably just woulddepend on the facts of Thank you.
So we've asked your questions, butwe have some people who are, instead

(45:35):
of asking questions in the Q andA box, are just grutuitously filling up
the Q and A box with complimentsfor the panelists. We discouraged that questions
only please these panelists know they're terrific, but I nevertheless share the share the
sentiment. We've gotten some questions askingwhether the result of this really will be

(45:58):
to eliminate racial preferences, or whetherit's merely going to cause the racial preferences
to continue underground through the essays,based perhaps on the language that Art Coleman
quoted from the opinion, Have wereally changed the way that universities will behave

(46:19):
or are they just going to dothe same behavior but in a more covert
way. I'll take a stab atthat, because this is the world I've
been living for the last four months. I see no indication that any institutions
are not taking this incredibly seriously andworking very hard both to invest around policy

(46:44):
designs that toe this fine line betweenprohibited status but permissive ability, to think
about an applicant's racial experience that maybe tied to value qualities, and figure
out literally how you are training staffto understand an applicant may say anything right,
they may disclose lots of information aboutthe background, and how you in
essence, don't let racial status initself influence the decision in any way.

(47:10):
There's an awful lot of time andeffort being invested in policy development, in
training protocols and training materials, innavigating technology platforms to make sure that admissions
readers are actually not aware of theracial status of an applicant, even though
that data has come in on acertain platform. So I think there is

(47:34):
an awful lot of seriousness taken byhigher education leaders to make sure they are
following the line of the Supreme Court, both with respect to what's prohibited and
what's permissible through the front door ofthe Chief Justices of people. Thank you
art. So a couple of ushave mentioned that there are cases coming up

(47:57):
involving the Service Academy's West Point NavalAcademy. One of our questions, or
just ask straight out, please announcewhat the decision will be in those cases.
What's your preed. So I've readthe complaint in the West Point Academy
lawsuit and it's predictable. So footnotefour, which are alluded to inn SFFA

(48:22):
decision, doesn't say the military academiesare protected. It says they are not
here before us, and we aren'tdeciding whether or not this opinion applies to
them. So the schools will absolutelysay, well, if this were an
easy case, they wouldn't have thatfootnote because whatever they announced in SFFA must

(48:45):
not have obviously implicated the military academies, otherwise that footnote wouldn't exist. And
then the plaintiffs are saying all ofthe analytical reasoning underlying SFFA applies just the
same to the military academies. Racialcategories being arbitrary, race not being the
quintessential part of who you are.The idea that diversity means more than skin

(49:09):
color, and in fact could meanthat you have to ignore race in many
ways. So the again, thisgoes back to the point that the Court
was writing for the future just asmuch as writing for the present, and
so I see a world, especiallysince there's no endgame. These military academies
are promising to have race in thefuture and forever, and so that is

(49:31):
going to irritate I think the SupremeCourt, if it ever gets to that
level, if nothing else on that. We have another question about the implications
of this decision for race based scholarshipsand other financial anyone hasard a guess or

(49:52):
analysis of the implications, So Iaddress that briefly in my comments. I
actually think the practical reality for institutionsat this moment in time, even though
the Court technically did not address financialand scholarships, the first question, if
you're going to sustain a race statusconscious final delay policy, the first question

(50:15):
is going to be what's your compellinginterest? And that's the question that I
think. Where I said that theCourt basically eviscerated decades a precedent, we
are without a Supreme Court recognized setof compelling interests. That I think could
justify at the moment those particular practices, And so it's a practice that I

(50:37):
would characterize as exceptionally high risk atthe moment, if which is why I
think you see so many institutions doingone of two things. Either most often
redesigning aid around the student experience thatmay be tied to through look legitimately legally

(50:59):
race neutral strategies tied to those diversitygoals, by the way, diversity goals
that this Supreme Court said were commendablegoals, just not sufficiently concrete to justify
that race status consideration. And thenthere's some creative practices I think you can
do, particularly with privately in doubt, an ultimately result in decision making that

(51:20):
is not only race neutral, butrace blind, even if you've got funds
coming from a donor who said,I want dollars going to Hispanic students as
part of a big pool. SoI think there are some avenues to navigate.
But I think for the vast majorityof institutions, you've got serious attention
on financial aid and scholarships, justas you have serious attention on admissions.

(51:45):
Good, So I'm going to wehave about six minutes left, so I'm
going to ask a question of artand will. We have a basic difference
in perspective in this panel, whichis that the two of you are policy
people, as I came up inOCR through the enforcement side. I'm also
going to claim Corey for enforcement becausehe was a litigator. So I think

(52:06):
that's a kindred spirit. I've talkedabout policy guidance, especially you will from
OCR. But let me suppose thatyou went to the dark side, either
one of you, and we're anenforcement and you were asked sometimes the department
will follow up a major decision,not just with guidance, but it might
also with a compliance review initiative.If you were asked to design such a

(52:29):
thing, would you push back andsay it's not appropriate? Now? Would
you say sure? Yeah, thereare real questions about compliance in the field
that I would like to look atit. What do you think OCR should
be doing. Should it be doingproactive enforcement work pursuing to this decision,
and if so, what would itlook like? Should or will? Either

(52:50):
way? Well, I think itshould. I think the question is whether
it will. I was somewhat encouragedby the August fourteenth guidance because it didn't
say this was a decision just aboutharvarding you, and see they did it
wrong. If you had a smallerfactor, or if you had a better
and more concrete diversity interest, youcould probably get away with still keeping an

(53:15):
affirmative action program. It acknowledged thatthis decision applies throughout the country for recipients
of federal funds. But I thinkwhat will happen is that OCR will accept
the complaints and open the complaints andsit on them for a long time before
investigating. The investigations will take along time, and notoriously, motives are

(53:35):
hard to determine as to whether aschool is embracing new application questions about what
struggles and life obstacles you've had toovercome based on race or not. And
so I don't expect them to announcean aggressive national compliance initiative, at least
under this administration. After s ffautthe last word on this ken you did

(54:01):
send me back to the dark side, And now I'm going through I'm going
back through the cobwebs of actually beinginvolved in some of these decisions about when
I was at OCR, what wewould do proactively, and I would say,
you know, if there was anemerging pattern a sort of flagrant violation
or abuse of this Court's opinion,then I would expect that could be an

(54:22):
arena for OCR to land. ButI just put back on my old hat
as it were, thinking through whatwere the factors that drove us, and
it was to find those areas thatwere not already the subject of significant complaints
coming to OCR, for which wethought there were material gaps in equal opportunity

(54:45):
affecting students. And I will justtell you just based on my limited window
in the past four months, thisjust doesn't strike me as necessarily rising to
that level. But these are actuallyreally early days. I think we're going
to have to wait and sort ofsee how some of this lands before we
no more excellent. You know,I said our head the last word.

(55:09):
But it does look like we havejust a moment lest if people have a
quick response to this question. We'vebeen asked by a couple of people about
law schools or law firms, anycome to mind. Will yes, absolutely

(55:30):
so. Attorneys general have issued competingletters. Several Democratic attorney's general have said
this doesn't apply to employer decisions involvingDEI my own attorney general in Colorado,
Ocean opinion of that's sort just afew weeks ago, but I think of
five Red state Attorney general letter beforethat went out saying here are a bunch

(55:53):
of law firm programs that provide eithersummer associate jobs or scholarships based on race,
and those are going to be serviceto forty to USC nineteen eighty one,
which bar is raciscrimination and contracting,and so the same principles that apply
in terms of diversity not being acatch all defense to race discrimination are going

(56:19):
to run through those cases as well. Thank you well, gentlemen. On
behalf of the Civil Rights Practice Group, I want to thank you. We
are grateful for the expertise that youhave shared with us. Thank you for
your time. I appreciate the audienceparticipation. We had far more questions waiting
for us than we were able toreach, so I apologize to those questioners

(56:44):
that we weren't able to address,but I thank you all for your participation,
and I hand the microphone back toSam Fendler. Well, Ken,
thank you very much for facilitating sucha wonderful conversation, and I too,
on behalf of the Federal Society,we want to thank our panelists for joining
us today and one last communication ofour thoughts and prayers. Sup. Professor

(57:09):
Amanda Schaner. I also want totake the opportunity to thank our audience for
joining us. We greatly appreciate yourparticipation. Please check out our website fedsock
dot org or follow us on allmajor social media platforms at fedsock to stay
up to date with announcements and upcomingwebinars. Thank you all once more for

(57:30):
tuning in and we are Jared.Thank you for listening to this episode of
Teleforums, a podcast of the FederalSocieties Practice Groups. For more information about
the Federal Society, the practice Groups, and to become a Federal Society member,
please visit our website at fedsock dotorg.