« The Weeds

The fate of affirmative action

2023-05-24

Summer is around the corner, which means the latest rulings from this Supreme Court are as well. Two cases will take on affirmative action. In this episode of The Weeds we go on a deep dive with Vox reporters Fabiola Cineas and Ian Millhiser and look at the man behind both cases, the current state of affirmative action, and what a future without this policy would look like.

Read More:

Everything you need to know about the Supreme Court affirmative action cases - Vox

The Supreme Court discovers that ending affirmative action is hard in the Harvard and UNC cases - Vox 

Reflections of an Affirmative Action Baby, by Stephen L. Carter

Credits:

Jonquilyn Hill, host

Sofi LaLonde, producer

Cristian Ayala, engineer

A.M. Hall, editorial director of talk podcasts

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
- This comes from Planned Parenthood. It's hard to imagine a world where we leave future generations with fewer rights and freedoms. Since the Supreme Court's decision to overturn Roe v. Wade, politicians in nearly every state have introduced bills aimed at blocking people from getting the essential sexual and reproductive care they need, including abortion. Planned Parenthood believes everyone deserves access to care. And with supporters like you, they can reclaim our rights and protect and expand access to abortion care. Visit plannedparenthood.org/future to learn more and support their cause. I think we can all agree the current political moment is fraught. But how does it compare to the other fraught political moments in history? It fell for a time in part of that decade. Everything was falling apart. Young people against old people, anti-war violence, peace movement. I'm former US President.
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- Some weather and Beyonce concerts aren't the only things to look towards. For those of us that closely watch the news, we know it's about to be Supreme Court decision season. Students will be releasing decisions from their stacked term. Decisions that will impact things like gerrymandering, LGBTQ rights, and college admissions. I'm Jonquilin Hill, and this week on the Weeds, affirmative action. The organization Students for Fair Admissions. Backed by the legal strategist Edward Bloom, has not one but two cases at the Supreme Court this term. And both will likely change the role affirmative action can play in college admissions and hiring. The stakes are high. This decision will likely have implications far beyond who gets into what college. It could also reshape our workplaces and even what the US military looks like. So I sat down.
With what I consider to be an epic reporting duo for this conversation. - My name is Fabiola Sinius. I cover race and policy at Fox. And I'm Ian Millhiser. I cover the Supreme Court. Okay, this feels very much like... I don't know, I feel like we're the Power Rangers. Assembling or something. Like I'm very excited for this episode because you all are two very smart people, very well versed in this. So Fabiola, I'm gonna have you start us off before we really take a deep dive. I feel like we talk about affirmative action all of the time but what is it actually? What are we actually talking about? - So affirmative action is a set of policies and practices
Institutions implement to basically increase representation of marginalized people in various areas. And so when we talk about affirmative action, I think we mostly think of it in the educational context, but there's also affirmative action in the employment context. So when it comes to education, we think about admissions and with employment, it's mostly in terms of who you're hiring. So an example of that is government contracts, or just even the corporate space when people are trying to make decisions about who to bring on for a role. And Ian, how does it work? In practice. What are some examples? So like the specific details, especially in universities is going to depend on the particular school. But at any school, it's based going to follow a particular pattern. There's three types of applicants. There's applicants who are just so stellar. That you're going to admit them no matter what, and you know, no matter what factors other than grades and test scores you're looking at.
There's some applicants that just don't meet the bar where you're going to consider them at all. And then there is this middle group of applicants, all of whom are exceptional applicants, all of whom are people who could thrive at the school that they've applied to, but the school doesn't have enough beds for all of them. And so they have to make some sort of choices about. Out from this group of all very qualified applicants, who are the people that we're going to choose. And sometimes... You know, they might make that decision because like, you know, let's say that the orchestra's tuba player is So you need to admit a tuba player. Sometimes, you know, the football team needs a wide receiver. And so you admit a wide receiver, it doesn't mean that if someone plays, say, defensive lineman, that they're a bad person or they're being discriminated against. It's just that fits the school's needs.
And similarly, sometimes a school might say, well, look, this class doesn't have enough black people in it. This class doesn't have enough Latinos. This doesn't have whatever. And so they might choose again from a pool of applicants who are already all well qualified, that they want to make sure that they have. Have a degree of racial diversity in their student body. - When we think about affirmative action in the early days, it was a policy to basically remedy historical exclusionary practices. So saying it's up to the government to actually bring people of color in and put them at a starting line that is similar to that of their white counterparts. But then over time, it kind of has turned into a measure to bolster diversity on college campuses. I also think about our...
Affirmative action in two different buckets. Like there's soft affirmative action and hard affirmative action. So soft is if a school is saying, oh, we're gonna go out and recruit in different locations. Whereas like a hard version of affirmative action is what Ian has described with kind of tipping people into certain categories based on various characteristics. - Can y'all talk about how and when we got this policy in the first place? Like what what was the moment where it was like? okay, we do affirmative action now. - I mean, I think it develops gradually. President Lyndon Johnson gave a very important speech at Howard University where he has... And potentially argued that. - You do not wipe away the scars of centuries by saying now.
You are free to go where you want and do as you desire and choose the leaders you please. You do not take a person who for years has been hobbled by chains and liberated. Bringing up to the starting line of a race and then say, 'You are free to compete with all the others,' and still justly believe that you have been completely fair. And so he argued that there needs to be a Be some sort of corrective measure. A lot of early affirmative action programs were implemented under Richard Nixon. And then I think the turning point, you know, Fabiola referred to... To how like there's sort of a restorative argument for affirmative action that you know we need to repair the harm that our society has done because the legacy of discrimination that was raised in a
In the 1978, I believe, which was the first affirmative action case to reach the Supreme Court. And the court rejected that theory. They said, like, you can't do affirmative action to lift people up who belong to historically marginalized groups. Essentially what the court said in Bakke is we will tolerate affirmative action to the extent that it benefits white people. So you know, the argument that the courts have used to justify affirmative action is that if I as a white person. And go to college and I'm surrounded only by white people, I am not going to get a very good education because I am not learning about all of the diversity of cultures that exist in United States and all of the diversities of culture that I am going to want to sell my product to if I go into business. And that is the rationale that the court has bought. You can't do this because you're looking to help racial minorities, but you can.
Hand do it because of the benefits that everyone will get from being in a more diverse environment. Affirmative action very clearly comes out of the civil rights movement. I feel like today a lot of people try to make it seem like this wasn't something that was a part of the civil rights movement, but Very clearly was. We have MLK basically saying in his 1964 book, Why We Can't Wait, that he really thinks that black people deserve to have measures that are dedicated toward them, dedicated toward helping them out in the workplace, helping them out at school. During that same time in the mid 60s, we have college professors at like liberal institutions also. You know, they're looking around and they're like, Dang, this is like very white. We need to kind of, we need to move people in here. We need to get people of color onto our campuses. So it starts with a lot of these university professors saying, What can we do to bring a greater diversity to our campuses? They were actually being swayed by the civil rights movement.
But then about 10 years later, the mid 70s, the late 70s, we've been-- Talking a lot about like African-American studies lately or Black studies. And so that's the time where more people are arriving on campus. And by people, I mean, Black people are arriving on campus. They're saying, you know, the curriculum here does not reflect our experiences. We don't have any professors here who care about our experiences. And so a lot of campus protests push for affirmative action as well before back E-tube. I also think... You know, when we hear people talk about affirmative action, they make it seem like Everyone is doing affirmative action. And I just, I wanna talk about the institutions we're talking about when we talk about affirmative action, especially in the context of the upcoming Supreme Court cases. It's centered around colleges, but it's not just colleges.
This is going to have an impact beyond colleges, right? - Most likely, yeah. I mean, what is really going on in these two cases? There's one for the Supreme Court about Harvard and its affirmative action program, another about the University of North Carolina and its affirmative action program. But like the big stakes here is that the conservative position on race, at least amongst people who are on outright white supremacists, like the conservative position on race has historically changed. Been the colorblind position. You know, like the one that Stephen Colbert famously, you know, is Black History Month, which is a lot easier to celebrate because I treat it exactly the same way I treat every month. You see, I don't see color. People tell me I'm white and I believe them because-- Please call me sir. This... They are likely to apply this theory that we have to...
Live in forced willful ignorance of the fact that race is a thing that actually exists and actually can affect not just like people's lives and the opportunities that they have. Have. But but again, I mean, what what the court has said in the past is that we all from being in more diverse environments. And I will note that like, if you look at the briefs that are filed in the Supreme court cases, the military, you know, there's a bunch of generals and admirals who filed a brief. Like, in Vietnam, one thing that was a real disaster was that there was a predominantly white officer corps. And a very diverse enlisted corps. And first of all, that's not a safe environment for the officers because the officers, you know, don't earn the trust of their men. They just said, like, Well, the lesson we learned from that is we can never do that again. To make sure that our officer corps resembles our enlisted personnel. Businesses...
Refile by all these big businesses saying like, essentially, look, we want to be able to sell our products to everyone. And like, if we're going to try to come up with a strategy to sell our product to the black community, it helps to have black people working for Who, you know, can tell us what to do. Law firms filed a brief, so you know, making a similar argument. And so you have all of these institutions saying like, Hey, the... This really matters. And the question is whether the court is going to listen That probably know more about these subject matters than nine lawyers in black robes do. - Ian, there's a name that frequently pops up in these affirmative action cases. It's in this one, it was also in the 2016 case, and that's Edward Bloom. - Oh man. - Who is this man? Who is that masked man?
I've struggled with how to describe this man concisely. Like I've used the words white rights activist in the past. - Oh dear. Ed Bloom is a guy like he's not a lawyer. I think he was a stock broker. And he was apparently a very successful stock broker. I believe he got very wealthy. And then he decided I guess He had enough money and he wanted to become a political activist. And the particular activist... That he has done is that he finds plaintiffs and often connects them with lawyers who want to challenge policies that benefit people. People of color. At affirmative action university admissions. He was behind the Fisher case, which challenged the University of Texas's system. Often he goes after really obscure things.
It's like, you know, there is one case involving how districts are drawn in Texas. And he basically wanted to come up with a way that would lead to white people being able to elect more. Congressman and fewer Latino people being able to elect members of Congress in Texas. So like, his work has been making these lawsuits happen. That challenge civil rights policies or in other ways try to make the wall better for People and worse for everyone else. And he's very aggressive in this. And you know, once he wins one victory, he accepts that victory and he looks for the next thing that he can do to, I guess, file lawsuits to help the poor, oppressed white people that he cares so much about. It seems like this has been something very long in the making, I mean... I think back to-
2016 and now do we know how long sort of these cases or this fight against affirmative action has been in the making? Argue that this has been in the making since affirmative action became a thing Like I was looking through the archives of the New York times and there was an article from the 70s that was saying like white in the White men are mounting challenges to affirmative action. And so it feels like Edward Bloom has just kind of picked up the baton and is just continuing this fight that's been going on since the '70s for sure. I want to agree with that because like, you know, I've covered, you know, I remember the Grutter and Gratz cases, which were important affirmative action cases in 2003. Those were decided right before I started law school. I covered the Fisher cases. I've now covered this case. And the arguments never change. The arguments raised against affirmative action are the same argument.
That were raised in 1978 in Bakke. And most of the arguments defending affirmative action are the same ones that were raised in Bakke. The only thing that's changed is the Supreme Court's personnel. They just... Keep filing the same lawsuit over and over again every dozen years or so and the thing that changes is that the court keeps getting... Or a conservative, and now they probably have the votes to get the thing they've been trying to get since the 1970s. - I wanna get into the. The timeline of these cases. So Ian, you've mentioned Bakke, you mentioned Grutter, you've mentioned Fisher. Tell us about these cases. How have they each kind of changed and shaped or not changed and shaped affirmative action? - So I think the first thing to understand is in each of these cases, the court had a Republican majority.
And I think the thing that was different in all three of the previous cases is that you actually had a moderate Republican on the court. And so Justice Powell was the key vote. Lewis Powell was the key vote in the Bakke case. And Powell was the pre- Before he became a Supreme Court Justice, he was the preeminent lawyer in Richmond, Virginia, the former capital of the Confederacy. He had been on the Richmond School Board. Like, from what I'm able to gather, he was considered a moderate when he was on the Richmond School Board and like was considered someone that like both the segregationist- Like they could work with him and like the black civil rights activist felt like they could work with him as well. But again, like if I'm describing someone as a moderate on race in the South in 1960. Like I'm not describing somebody who has views on race.
That would resemble anything that would be tolerable in 2023. And so this case came to Powell and he was the one who Who rejected the idea that, you know, the reparative notion, you know, the notion that we can have affirmative action to correct for past injustices. And then, I mean, this conservative guy, like, thought about it, and the most interesting part of that opinion is he says, you know, Harvard, like, these universities... They know a lot about how to prepare people for the future, how to train young people for business, how to train young people to succeed. And I'm just not confident that I do.
No more than Harvard University does about how to assemble the right kind of student body. So there should be a degree of deference to universities when they say, Look, this is what we need to do in order to have a cohort of students who are prepared for their future and for the country's future. And that ethic pervades the Grutter decision where Sandra Day O'Connor was the key vote. the Fisher cases came up, everyone thought because. You know, then the key vote was Justice Anthony Kennedy, he had dissented in Grutter. And so everyone thought affirmative action was going to die that time. And what I think happened in Fisher is, you know, as I've said, every time these cases are fired, there's a military brief saying it's bad for national security if you get rid of this. There's a corporate brief saying it's bad for business. And I think that Kennedy
you know, being a traditional conservative who understands the importance of institutions was also reluctant to say. I know more than Harvard University and the United States military and all of corporate America, you know, What should be done about race? You know, the thing that has changed is that, you know, I mean, we still use the word conservative to- describe the court, but there isn't really anyone on this court right now that is a traditional institutionalist conservative, you know, who believes that, you know, we just have these Institutions in our society and they know a lot of things and we should be reluctant You know, we have a lot of people who are very driven by ideology. You know, I mean, basically what the question has come down to in every one of the past cases. Is whether there's enough justices on the court who are Republicans, who are just basically...
Willing to have a little humility and say like, maybe I don't know for sure how to solve the question of In the United States of America? That is maybe a harder question than what I-- than anything I was taught in law school. - All right, we need to take a quick break. Up next, a deep dive into the two affirmative action cases at the Supreme Court this term. Stick with us. - Support for this show comes from Washington Wise, an original podcast from Charles Schwab. Decisions made in Washington affect your portfolio every day. But what policy changes should investors be watching? Washington Wise, an original. Podcast for investors from Charles Schwab tracks the stories making news right now and breaks them down for the average investor host Mike Townsend.
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And reclaim our rights and protect and expand access to abortion care. Visit plannedparenthood.org/future to learn more and support their cause. And we're back. It's the weeds. Joined today in studio by my colleagues, Ian Millhiser and Fabiola Senius. We've been talking about the history of affirmative action in the United States, and now I want to pivot to the current cases. Ian, there are two affirmative action cases before the Supreme Court this term. Can you walk us through each and sort of What the issue at the heart of each is? - You can look at these cases through a narrow lens, you can look at them through a broad lens. So the narrow lens, like Harvard in particular, is being attacked because...
Asian American applicants are less likely to be admitted to Harvard than and then applicants of other racial backgrounds. And if you look at the statistics, I mean, there's just no question that if you're an Asian American, you apply to Harvard, statistically, To get in. And Harvard's argument is, again, we want to have a diverse class and like... If that means that we have to give an advantage to some groups so we have diversity, like, that is the goal here. One way that the court could resolve that case is they could just say, Well, Harvard, Too much and make this about how Harvard has been terrible to Asian American applicants. And I think that's certainly the PR campaign that Ed Blum's folks have been putting out, trying to present this as an issue that's specifically about how Harvard treats Asian Americans. The broader —
plans, is that the court isn't likely to rule affirmative action can still exist, but Harvard just did it wrong. So what the Supreme Court is likely to say is no one can have a For a bit of action. It doesn't matter what you do. And so like to a certain... I mean, again, maybe we'll be surprised. Like, I mean, I've been surprised twice in my career when I thought the Supreme Court was gonna nix affirmative action. - Ooh, what were those two times that you were like, ooh. - Both of the-- - Kale of Suprise. - Both of the Fisher cases. - Okay. - Yeah, Fisher v. Texas went up to the Supreme Court twice at both times. Remember, I'm a little embarrassed by this. I was an editor at the time. I had just hired a reporter who was working on it. And I don't know if I should confess this, but I said to this report, I don't know if we should put too much work into the Fisher case because-
Because, you know, Kennedy descended in Grutter, I think that there's no way that affirmative action survives. And so, like, there's just less that we can accomplish here through our own lives. And that was the wrong call. That was bad of me to say that because, again, twice the court surprised us. And they said in Fisher that affirmative -- they made it very, very hard to have affirmative action, but they said it could still exist. And so that could happen here. I think that's unlikely. But like if you care about affirmative action, like there's a meaningful difference between the court saying Harvard just did this wrong and the court saying no one can ever do this ever. What's interesting to me about these cases is that it's both private and public colleges and I'm wondering is is there significance
there and will that possibly play a role in how these two cases are decided? - Possibly. So there's two different legal provisions. In play here. So one is the 14th amendment, you know, which just says no one shall be denied equal protection of the law. If you are an originalist, which, you know, most of the Republicans on the Supreme Court claim they are, you know, someone who believes the Constitution should be read as it was originally understood. There is no argument that affirmative action violates the Constitution. You know, like the same Congress that wrote the 14th It came up with the Freedmen's Bureau. They created all kinds of programs that were essentially affirmative action programs. And so it's very hard to argue when the people who wrote the 14th Amendment came up with affirmative action programs that they opposed affirmative action. The statutory argument, I think, is stronger.
If you oppose affirmative action. There's a law called Title VI and it just uses different language. It says that if you are an institution funded by the Federal government, you may not make decisions on the basis of race. And so there's a stronger statutory argument against affirmative action. In the Bakke case, the court said that Title VI should be read the exact same way that the 14th Amendment is read. And so under precedent, there is no difference. Rules precedents fairly frequently and you know just speaking as a lawyer like you know I'm not going to do this but if someone hired me to challenge an affirmative action program like my brief would focus more
On the Title VI argument because like, if you look at the text of Title VI and you look at the history, it's just a stronger argument in part because the 14th Amendment is so weak. - Fabiola, I remember the Fisher case very distinctly and it was a white woman who was at the center of it. And that's not the case this time around. Can you tell us how... The face of these cases have changed throughout the years. - Yeah, I think we all remember Abigail Fisher like standing on the steps of the Supreme Court, red hair, pale skin. - Becky with the bad grades. - Exactly. - Yes, oh my God, that very, I think it was very smart brothers or the root, but y'all they were drunk. I was like, oh my gosh. Yeah, exactly. So you're right going back to 1978 We have a white man Gratz 2003 and Jennifer Gratz
2003, Barbara Grutter, so two white women, Abigail Fisher, another white woman. But I do want to say make no mistake, students for fair action, right, it's like, I would to their website today and they have what looks like a stock photo and it's of an Asian kid sitting on a couch and so I think the public perception is like, Oh, Asian students are behind this. Like Bloom is on the record saying he needed Asian plaintiffs to win the case. So I needed plaintiffs. I needed Asian plaintiffs. To me it's very clear and a lot of people have argued. That this organization's strategy is almost to weaponize high-achieving Asian Americans to basically say, hey, look, they're so good.
Minority, like they're being victimized. When we look at polls and when we look at what Asian Americans think about affirmative action, polls say different things. There's one specifically that I was looking at from AAPI data and it found that 70% of Asian Americans support affirmative action. Something else I think about is the fact that there is no Asian face. Can you name, clearly Abigail Fisher-- White woman who's standing up. Like who was the Asian Abigail Fisher behind this case? - I cannot think, yeah, I can't think of a person. I don't know if it was to keep someone from getting dragged again. I don't know if it's because not a lot of people exist. - Yeah, I think the answer is that what they've done It's a very powerful strategy of saying Asian Americans are hardworking.
Asian Americans are the model minority. You pit them against black Americans who are not hardworking. Who are undeserving. And so that creates competition between Asian people and black people in the affirmative action space. And so it's really unfortunate because it ignores. How diverse the Asian community is. It ignores the needs of different Asian communities within this broader block of being. Asian in America, and I think it also just goes back to just selective Immigration policies of the 1960s that let, that started in the 1960s that let certain kinds of Asian people in. Had to be high achieving, you had to have the right kind of credentials to get into America and so this is just perpetuating itself in the affirmative action debate.
The thing that I find so interesting is that, you know, like Harvard has terrible numbers when it comes to Asian students and my, the first thing I thought when you said that Ian was couldn't we fix that with affirmative action? I do question if it will do what it is claiming it intends to do, which is get more Asian students into universities or, you know, will the numbers look the same if/when this is no longer? I'll offer, I guess, a somewhat tepid critique of affirmative action, which is that I think By the time affirmative action kicks in, you already have massive social problems that just aren't going to be solved by tweaking the admissions process at a hand--
full of elite universities. I mean, like, it is a systemic problem that, like, Black children tend to go to public schools that are not the same quality as, you know, the average public school in the country. Systemic problem that if you are Black, you are more likely to grow up in poverty than if you are white. Or or or i believe if you're asian american if we are committed to solving these problems the way Is not by saying, Well, there are these 36 Black kids and we're going to... Let them go to Harvard and everyone else just like figure it out. Like if you're going to solve these problems, you need to solve the problem. I mean, really, even before kindergarten, like you know, you need to To address the reason why Harvard isn't getting as many exceptionally qualified Black applicants as you would expect given the number of Black people who...
Live in the United States. I mean, this is an extraordinary, weak intervention that-- We are talking about in order to solve a tremendous problem of inequality. I will add to that too that affirmative action's biggest support. Like, I think everyone has known from the beginning that affirmative action was only -- it was just a stopgap measure. It was never something that was going to undo discrimination. Undo all these ills in our society, but it is one thing, right? It is one thing that has made a difference. Fabiola, a lot of the conversation about affirmative action, on the flip side, it talks about race-neutral policies. What are race-neutral policies? So race-neutral policies would be the alternatives that schools would implement instead if the court does rule and says that race cannot be used.
In admissions and so it would in a sense create this kind of colorblind, or people would at least try to create this kind of colorblind society, Colorblindness that conservatives love to talk about. I think what's interesting about these policies though, is that we have years of data. That show that a lot of these policies don't actually work. All right, California and eight other states have already gotten rid of. Of affirmative action in their public university systems. And so some examples of the race neutral policies are focusing on socioeconomics. So saying if a family earns a. Than like $75,000 a year. They're going to get financial aid or doing recruiting at in certain neighborhoods in
Brown neighborhoods or even doing away with standardized testing because standardized tests can be correlated to how much income someone has. Other examples that have been used in California and Texas is just taking the top high school students and giving them guaranteed admission to certain schools. Lot of examples of these policies, but overwhelmingly, the research shows that they are just not as effective at creating diverse campuses and opening up opportunities for Black and Brown students as race-conscious policies are. It just also seems a little bit impossible to me to not take in race as a factor at all the same way you can't help but take so many things as a factor. I mean, if I hand someone my resume, at the top it's going to say, Graduated from Howard University. At the bottom, it's going to say, M
of the National Association of Black Journalists, there are conclusions you can draw from that. Like if you have someone write their essay about being like a first generation. And going to college Chicana, I know that is a Latino woman. Like, I don't know how you divorce those things from one another. - And this came up at the oral argument, Coney Barrett actually who brought this up. - What if an applicant wrote an essay about how integral their racial identity was to them as a source of pride and the cultural attributes of the racial heritage were very important. Would that be okay, even if it were all intimately tied up say with the traditions of a Mexican family? - And the university says, we want to admit this student
On the strength of this gorgeous essay that the student was able to produce. Well, you got Ed Bloom out there looking for opportunities to sue universities. University supposed to prove that it accepted the student because of the like like, establish. Wonder of the essay and not because the essay revealed that the student is a Latino. I mean that's just a very difficult task. The line between so-called race conscious policies and race neutral policies is very porous. You know, Fabiola mentioned what is often described as the top 10% policies. This is something that comes from Governor George W. Bush.
Yeah, when he was governor of Texas, you know, he campaigned for president on this. His alternative to affirmative action was, at the time it was, if you graduated from a Texas public school, if you were in the top 10% of your class, you automatically got into the University of Texas. And basically what he was doing is leveraging segregation. Because like there were some schools in Texas that were still segregated. Zip codes. Yeah. And if 100% of the kids are black in that school, then the top 10% are all going to be black kids and now they're going to get into the University of Texas. But like even setting aside the fact that he was. Leveraging systemic injustice in order to diversify the University of Texas. I mean, we called it a race neutral policy because like if you look at the language top Like, it doesn't mention race anywhere in there, but like why did that policy exist? It existed because George W. Bush, the governor, the president, the president, the president,
The government wanted more black people to be admitted to the University of Texas. That was the purpose of the policy. You know, this was as much. Affirmative action policy as anything else. And there are already lawsuits. There's an elite charter school. In Northern Virginia that recently changed its policy so that it takes the top percentage of students from every of the middle schools that feed into this school and right away it was sued and it went up to the Supreme Court. It back down to lower courts and I don't I honestly don't know what the court's going to do with this case but the problem is like if the rule that we get is that you're not allowed to consider race policy, period, then my so-called race-neutral policies aren't really on the table either, because what these policies are is we're going to do the, you know, we're going to
To try to achieve the race-conscious objective that we have anyway, we're just not going to use the word black when we We're just not gonna, you know, use the language of race when we do it. We know that income is often a proxy for race to an extent, and so while a lot of the race-neutral policies might not create as quickly the kind of Campuses that these schools want, maybe eventually they will down the line, but right now things are moving very slowly. Fabiola, the reason this has been held up for so long, like Ian mentioned, is not because it's repertory, but because, you know, people say diversity benefits students. Do we know in what ways diversity benefits students?
Argument coming from. It's coming from the many many studies that we have about the benefits of diversity. So at the Century Foundation one report that they did found that diversity helps students feel more confident, diversity helps reduce racial bias, it helps strengthen students' leadership skills. And it also gets students ready for the workforce. So when you're working in a. Just anywhere around the world, it's just beneficial for you to learn to work and communicate with people who might not have the same experiences as you. It leads to more team creativity and then over time that translates to economic benefits for students. I'm curious about this part about it reflecting the real world because I think one of the issues that could arise is that, okay, if this stops and we see fewer students from diverse backgrounds in.
For you know, college, will it reflect the workforce? reflect the real world? I mean, college can be important, but it does not have to be the end all be all for whether or not you live a successful happy-- But I would be lying if I didn't say, you know, some of the connections, some of the setup for internships I had back in school didn't sit me in this host chair right now. And you know, depending on where you go, affirmative action was a factor. Like, are we, does this have the potential to fundamentally change kind of what our workplaces look like? - Yeah, even in the case of universities. It comes to diversity among academia and just the professors who teach at certain places, just even a place at Howard, right? Think back to your professors and where they got.
Or degrees from, if black and Latino professors are not going to Harvard and getting degrees, who knows, maybe just fewer professors of color will be entering the workforce. And so I think there are definitely gonna be repercussions that extend far beyond just higher education in the classroom. - All right, y'all, after the break, we'll try to read some tea leaves and discuss what happened during oral arguments in these cases and what it could mean for the future of affirmative action. Support for the weeds comes from hydro. Finding the time to exercise can be hard, but with the HydroRower, finding time for a 20 minute full body workout can be a piece of cake.
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The Supreme Court heard oral arguments in these cases back in October, 2022, and we're awaiting the ruling, which is likely to come down next month. What were y'all's takeaways from the oral arguments? I mean, nothing in it surprised me. I mean, I came into it thinking that affirmative action is probably doomed and I left it thinking that affirmative action is probably doomed. Now, that said, I mean, I think the headline on the piece I wrote after the oral argument is the Supreme Court discovers that ending affirmative action is really hard. When the Solicitor General, you know, the you know, the Biden administration lawyer who argues on behalf of the United States leaned really hard into the military argument. You know, again, this argument that like we learned in Vietnam, you cannot have an officer corps that doesn't resemble the...
Listed personnel and said specifically like you have to like let the service academies, you have to let West Point, the Naval Academy, you know, those institutions. You know, be cognitive race when they're admitting future officers. And Chief Justice Roberts actually seemed like he made a lot of progress. Be persuaded by that argument. At one point he asked, like, Can we create a carve-out for West Point and just eliminate affirmative action? and everywhere else. So in that situation, I suppose it depends how significant you think those distinctions are. It might make sense for us not to decide the service academy issue in this case. You know, I mentioned that Barrett was concerned about this question of like, well, how can you really? Tell that the student was admitted because of their essay and not because they are Latino. Kavanaugh raised the question of like the George W. Bush's top 10 percent plan. Like what do you do there? So one of the
I'm worried about setting aside the racial justice component of this is universities need to be able to function without constantly being bombarded with lawsuits, you know. You know, they have to have an admissions policy and like there has to be some ability for them to just go about and do their jobs. And if we do get some moderation from the Supreme Court, I think it'll come because of that recognition, that look. Like, no matter what, like, The way statistics work is like, you know, if 17% of your applicants are Asian American and you have a genuinely race-neutral policy, you're not going to have 17% of the class. S, B, Asian American every single year. Even if race isn't a factor at all. Going to be a year when it's 23%. There might be a year when it's 12%. And like, that's just how that works.
There's a reversion to mean over time, but things fluctuate. So do you want us to be in a situation Where every time the Asian American admitted student body is closer to 12% than it is to 23%, that Ed Bloom files a-- Lawsuit and the university has to spend gobs of money either spend gobs of money defending it or worse says Like obviously every time we admit too many black and Latino students, we wind up getting sued so we better not admit too many black and Latino students. Again I think that if we get. Any kind of moderation from the Supreme Court. It'll come not from sympathy to affirmative action, but sympathy to the fact. That you can't run any operation if you're constantly worried about one of the most litigious people in America. Breathing down your neck. It just seemed like the justices or the conservative majority specifically did
not care at all about the value of diversity. And so it's a little sad because I feel like in America, Somewhere where the word diversity has meant something or the pursuit of diversity has meant something but in the UNC case where Thomas outright is asking, like, please tell me, like, how do students benefit from diversity on campus? And just didn't really seem swayed by the response from UNC. I've heard the word diversity quite a few times and I don't have a clue what it means. Seems to mean everything for everyone. I'd like you first, you did give some examples in your opening remarks, but I'd like you to give us a specific definition of diversity in the context of the University of North Carolina.
I'd also like you to give us a clear idea of exactly what the educational benefits of at the University of North Carolina would be. - I think on that front, it just seems like it's a done deal in that sense. - So working under that assumption that... Affirmative action goes by the wayside, I mean, what's next? Are we just going to see a bunch of universities say like, okay, the top X percent of students are automatically accepted? Are we gonna have them say,
Okay, all right, maybe, okay, black people are 13% of the population. That's like the max we do with admissions. Or I mean, that's probably considered affirmative action in that sense too. Like what's next? - I can only speculate, but like my hunch is... That this is going to impact the universities that are maybe one step down from Harvard More than it affects the Harvards. And like the reason for that is Harvard has so much damn money. I mean, the old joke is that Harvard is a hedge fund that has a small education nonprofit attached to it. The Harvard Admissions Office just has so many people working for it. It's been so, and like they really do read every essay and like have multiple people in, like they really do put a lot of thought into how do we build this class that brings in people from all kinds of perspectives.
If you are from Idaho and like they haven't admitted someone from Idaho, like they would love to have someone from Idaho in their, you know, if you grew up on a farm, they would love because like That is an underrepresented group at Harvard. So like they want to bring as many underrepresented groups in as possible. If Harvard wants to give an individual read to like every, and like come up with an airtight race neutral ration. Now for why every single person they admitted was admitted to the school and then just fight that in court. Harvard can do it. I think the schools that don't have. Harvard level money, which is every other school, but like, you know, schools that aren't, you know, that most elite tier. Those are the schools that I think that are most likely to say, Look, the game is not worth the candle here. We can spend millions and millions and millions of dollars on litigators, or we can, you know, build a new science building.
And so I suspect that where this is going to be felt the most is at these institutions that are still very elite institutions and that are still the sorts of institutions where the fact that you do or do not get admitted could change your life. But you know, but not net like, you know, the most elite schools, I think, if they are truly committed to this, they will find a way to, you know, to continue to have a diverse student body. But in the meantime, we're going to see black and Latino students admission rate, I think the admissions rate is going to go down. They're just not going to be admitted at the rates that they're being admitted now at schools, like Harvard and other places while schools try to figure out what they're going to do next. That's interesting that you say that because my first thought when I heard that affirmative action was going back to the Supreme Court again was, okay.
Okay, we have a conservative court. It's going to be gone. So the number one thought I had was, Okay, time to really fundraise for those HBCUs. They're historically black colleges and universities. Time to do a renewed... Time to help, you know, some kids with their applications. I'm curious, do we know what this means for HBCUs? - Yeah, it means that... That, like you said, they're gonna need more funding, but a lot of HBCU leaders, they-- Been commenting on what they believe is gonna happen in the case and they're just like, we don't want people to assume that we have the infrastructure. And that we have the means to absorb students who would have otherwise gone to these other schools. So we just don't have the resources right now. So that's a scary thought. And then similarly with the faculty at HBCUs, I think we're going to see some changes.
Not immediately, but you know, maybe a decade from now, 15 years from now, it might be harder to recruit faculty members who are well qualified to to teach at HBCU. Use. Another thing that I'm thinking of right now, I mean, the three of us are sitting here, I would say we're pretty successful and accomplished and happy people. None of us went to an Ivy League for undergrad, like that, that did not take place. I'm wondering, does it really matter that much? And also, do people care? I mean, a very small percentage of the US population as a whole goes to college anyway. - So the journalist, Chris Hayes, wrote a book. A while back where he used the term fractal inequality. You know, the idea is like, you know, in the same way that like, no matter how much you zoom in on a fractal, it looks exactly the same. Like his argument was no matter how rich, no matter how.
Big of a deal you are, there's always someone you can be jealous of and like someone who has had like, who has something that is just so beyond your experience. Not go to an Ivy League, not go to any Ivy League schools. I did go to Duke for law school, which you know, if you care about the US News ratings was just ranked number five in American law schools. And I was shocked when I got there how many cartoons were available to me just because a professor could make a phone call for me. I have friends who went to Yale, which is Historically been the number one ranked law school. And when I speak to them and like what I did when I tried to get a, I. When I got a federal judicial clerkship compared to their experience getting like it is so much easier. Them at Yale. There are so many processes in place. So like the differences at Duke.
I had a really easy time if I wanted to be a partner at a big wall firm making a lot of money. Like, it was very easy for me to get on that track. If I want to be a Supreme Court justice, or I want to be like, I don't know, secretary of labor or something, like I would have had so many advantages if I had gone to Yale and instead. And so like, if you're talking about like, will you be able to make it into the upper middle class? that there are many, many universities that do an outstanding job of preparing their graduates to get into the upper middle class. But if you're questionable, but like if we care about who are the people... Who are running the country. Who are the people who are the CEOs? Who are the people who are the cabinet secretary, the Supreme Court justices, the presidents? Like, it really does matter who is getting into harm.
Harvard and Yale because I mean like we've had one we've had one black president. Yeah, yeah, you know if we want to have a country where the people who are In those most influential positions that have the most impact on the most people's lives. If you want those people to look like the new. As a whole and not like white America, then I mean I do think it really matters that Harvard, Yale, Stanford, those sorts of schools are admitting student body that represents the country as a whole. Fabiola, what's your take? It matters. It matters a whole lot. Earning a bachelor's degree, I feel like
Like for men, I think the number is that in a lifetime you earn $900,000 more dollars. And for women who get bachelor's degrees, the earnings that you get over a lifetime is $630,000 more dollars than someone who does not go to college. So college is incredibly important. Even broader than that, when we do away with affirmative action, I think to an extent we let America off the hook. When we think about that original meaning, the original purpose of affirmative action, For America to look in the mirror and say, We messed up. We did something really wrong. And we see it as our responsibility to correct these. Wrongs and so when we say we need to be race neutral that is completely ignoring all of the inequities, all of the injustices that still plague various communities today and so yes, while a few people
Maybe going to college out of what the total population is, it matters a lot. I think about a lot, is just thinking about who is. Worthy, who was deserving again. Earlier we were talking about Justice Clarence and in his memoir, My Grandfather's Son, a lot of it came down to stigma. And people believing that you are not supposed to be where you got a seat at, right? So when he was at Yale Law School, just believing that he didn't deserve to be there because of how he was treated by.
By his white counterparts. And so, I don't know, I think affirmative action matters because when we keep something like this in place, we're saying, Hey, you know what? It's okay that we're saying certain people need assistance because of historical injustice. And so, when we do away with that, we're basically saying that race is no longer a factor when that is not the case. - All right, Fabiola, Ian, thank you so much for joining me. - Thank you. - Thank you. - That's all for us today. Thank you to Ian Millhiser and Fabiola Sinis for joining me. Our producer is Sophie Lalonde. Christian Ayala engineered this episode. Anouk Duso and Caitlin Pinsy Moog fact checked it. Editorial directors AM Hall, and I'm your host, John Coolen Hill.
We're off next week, but after the holiday, we'll be back with new episodes, including one about another court case coming up. I want the government to know. I want them to see us. The youth, the flesh and blood Montana citizens, that their actions are impacting. People are suing the state of Montana over climate change. That's next time on The Weeds. The Weeds is part of the Vox Media Podcast Network.
Transcript generated on 2024-05-21.