Advisory Opinions - SCOTUS Considers Affirmative Action

Episode Date: November 1, 2022

Two universities defended their admissions process before the Supreme Court on Monday. Starting with the University of North Carolina (with a Harvard tease), David and Sarah grapple with – and at times disagree about – the difficult questions at the heart of the hearing: how should we understand diversity? Is seeking justice for centuries of slavery and discrimination compatible with race neutrality? Who should bear the brunt of righting a historic wrong? Learn more about your ad choices. Visit megaphone.fm/adchoices

Listen closely. That's not just paint rolling on a wall. It's artistry. A master painter carefully applying Benjamin Moore Regal Select Eggshell with deftly executed strokes. The roller lightly cradled in his hands, applying just the right amount of paint. It's like hearing poetry in motion. Benjamin Moore, See the Love. You ready?

I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we're going to be talking affirmative action, University of North Carolina mainly, and a little dash of Harvard. So here's just to tell you the lay of the land as we're recording. We pushed our recording time as far as we reasonably could. And the UNC oral argument is still going on. So we've been listening to two plus hours of UNC.

And we still have Harvard to go. So here's what we're going to do. We're going to talk about the UNC oral argument, which had some interesting themes that are common to both cases and some themes that are not, which I think it's very important to pull that apart. And so we're going to talk about that. We're going to finish the discussion, the oral arguments and our pod that record on Wednesday and published on early Thursday morning. So we're going to do the full spectrum, but for right now, we're going to focus on UNC and the common issues between UNC and Harvard

and the very interesting approaches the different justices are taking to this case and all of it, including some, Sarah's got some thoughts about Michigan. And I mean, yes, Michigan and California, amicus briefs in the case. Ah, lots to talk about, Sarah. So going to you first, overall impressions or just however do you want it?

How do you want to start this? Well, I think it's worth noting that these cases were consolidated for argument, but they are being treated separately. UNC is a state school. Harvard accepts Title VI federal funding. So that's why they have their own separate case. Their admissions policies are clearly different, and the record shows a lot of those differences. So why did UNC go first? Normally, Harvard would have gone first in this, I think. But remember that when Justice Jackson gets confirmed, one of the big questions at her hearings is whether she would recuse herself because she served on a board of

visitors for Harvard. And she later said yes. Because of that, it wouldn't make a lot of sense to have poor Justice Jackson just sitting around because we don't exactly know when the Harvard oral argument would wrap up. So that actually pushed UNC first. That's why it's UNC Harvard. I mean, no question in my mind, David, that it absolutely helped both schools to have UNC go first and that they owe Justice Jackson a muffin basket. Now, let me be clear. None of this was intentional to help the schools. You don't put Justice Jackson on the court because she's on the board of visitors at Harvard

because she'll have to recuse herself from this case. It's just the way that it worked out. But I do think that it very accidentally really helped Harvard to get to... What's the term in Viking, David? Why am I blanking on this? The term in Viking? Biking, you know, where you reduce drag. Biking. Oh, biking. Oh, gosh.

Draft. Drafting. Yeah. Harvard gets to draft behind UNC. And that's going to prove to be as helpful for Harvard as anything is going to be. Although I have to say, Sarah, that's less interesting than if the term was in Viking, at which point I was reaching towards like getting Harvard to Valhalla or something like that. Yeah. So that's how we sort of enter this oral argument. We also had multiple advocates going up there, a lot of different arguments,

a lot of different strategies from the justice. Oh, but wait, David, we did forget to talk about what was happening outside the courtroom as well. For those curious about line waiting OT 22, We got a message from an avid AO listener, and he was number one in line for the Harvard UNC case. Got in line early Sunday morning. So not a double nighter, single nighter. our former dispatch interns and AO listener join in the line at about 6.30 that evening, Sunday evening. He then became number 17 in line. Congrats, Ben. I asked Ben, by the way, how everything was going. He said, so at 10.25, I got a message. We're playing Uno now. Lol. 303 AM. It's definitely over 50 now. We'll see what happens in the morning. Capitol police says

they're going to set up bike gates to organize the line around four, hand out tickets around seven. A little bit later, there was a black cat wandering around, crawling over sleeping badge. That seems fitting for Halloween. Nothing exciting, he says. A lot of folks who traveled a ways and then just some students who were in town. And I asked if anything happened interesting overnight. Other than the sprinklers coming on and forcing some folks to quickly relocate and camera crews setting up on top of people, no other excitement. I did ask about what legal system they set up

and the answer was not much of what it sounds like. I'll be interested for other reports from the line. They took down everyone's name and that was it. Haven't heard any rules about bathroom breaks or who could get out of line. A lot of discussion about it being majority undergraduate students, which is interesting with some law students sprinkled in. As of this morning, David, the line was around the building,

like in the front turn and about halfway around the rest of the building. Unclear why, because obviously that will be more people than they'll let in. At some point, like you just count. And if you hit, let's call it 60, you definitely shouldn't wait in line. The numbers between 40 and 50 on any given day. It's a bummer. It's kind of not exact.

Nobody believed that there were line sitters. Again, something that we'll find out about after the argument, because line sitters kind of switch up at the last minute. If that's true, huge applause. Yay, no paid line sitters, which I consider just absolute cheating and something that the court should be buckling down on. Last thing on this, David, this, you know, other Supreme Court reporters were out there taking pictures and noting that this actually seemed very slow.

And they thought that perhaps the live audio was in some ways not discouraging people from coming, but it was just less useful. Like that cost benefit analysis had changed. I think that's interesting. I agree that I thought this might be a two night case and that it clearly wasn't. As he said, we know the first person in line got there Sunday morning. I wonder whether the cost benefit is really just that second night because we know, for instance, that if anything, I thought that the Andy Warhol case and the pork producers case

had far more people in line much earlier. And obviously those were live audio. So it may just be a sleeping out in the cold wetness And obviously those were live audio. So it may just be a sleeping out in the cold wetness for two nights versus live audio. You're like, okay, now I'll just listen to the live audio. Hard to say, David. You know, it's interesting. I've seen a lot of commentary about the case and, but what I've noticed, and this is kind of consistent with sort of the, what you're describing about the line is everything seems less intense than I thought it would be. And, and that's a super subjective feeling,

but I think there's something real there. And I think there's a couple of factors here. One, I think that a lot of people believe that the outcome is foregone, that they feel like they know how this thing is coming out. And the other is this is also happening in the middle of midterms, and a lot of people's attention is focused elsewhere. So there just feels like less intensity. But there was a lot of intensity in the oral argument itself. The oral argument, there are times when it seemed pretty tense. And let me pull out a few themes that I got from the oral argument.

And Sarah, tell me what you think of these. Here's one theme, which I think North Carolina's attorney did quite well, is he said, it was pretty obvious to me that he was trying to do two things at once. One was preserve the ability to use race, at least to some degree, race alone, to some degree in admissions decision-making in an individualized context. So that was, of course, the overall overarching emphasis of his argument. And the other one was, you can rule for us and not Harvard, which I think was a pretty shrewd kind of thing. And you really got to that at a particular line of questioning where Gorsuch really pinned him down on this. And he pinned him down by saying, by talking about legacy admissions and advantages

for athletes and all of these things. And Gorsuch was saying, well, you know, is there a compelling governmental interest here in these kinds of other preferences, or is there a compelling governmental interest in maintaining a race preference and these other preferences? If these other preferences then make the race preference more pronounced. And after all of this him and hawing where Park, that's the last name of the attorney for UNC, was like, this isn't UNC. This isn't UNC. UNC does not do this. And Gorsuch is like, I understand you don't like the hypothetical.

Let's just get that out of the way. You don't like the hypothetical. And then Parks kind of just tosses Harvard under the bus a little bit, kind of rolls over it and says, no, I mean, you know, there isn't really the same kind of interest when you've got the legacies and when you've got the athletic advancements. And one example that Gorsuch used was a squash team where schools were using admissions preferences to have better squash teams, using admissions preferences to have better squash teams, which, you know, unlike, say, March Madness or college football, it's not exactly a great way to enhance the brand of the college.

So very, very interesting. So that was a theme for me. And the other theme was... I was surprised by that one, by the way, David, because having a squash team probably does enhance the diversity at the school. Being exposed to different sports that aren't football and basketball, and having kids who are good at those sports that aren't just going to lead to potentially lucrative endorsements and careers. There was an argument to make that that increases diversity. And the legacy example that he uses is that if you admit this kid, his parents are going to build a new art museum for the college. Obviously that increases the experience at the college. If you can just wander over at lunch to the amazing art museum with a bunch of Matisse's and Van Gogh's not to throw soup on them,

hopefully like that was odd to me. As in, for the UNC council, he pushed back on the hypothetical because he wanted to make sure that it was clear that UNC did not do those things. Yes. Once he determined that Gorsuch understood that this was a hypo

about Harvard, he was like, yeah, yeah, Harvard sucks. Like, he could have defended Harvard. He didn't. But here's why I don't think he did. Because all of those people that you're describing, like in the squash team or some of these other niche sports like fencing and things like this, tend to be super white. And a lot of the donors and

the legacy families are overwhelmingly white. All correct. So to walk in and sort of really defend that- But isn't that part of diversity? Yes, they are in tension with each other. All sorts of diversities are in tension with other types of diversities, which is why these admissions offices think they're making kind of a secret soup.

One part of that is racial diversity. One part of it's socioeconomic diversity or diversity in what you're interested in, right? You don't want everyone to want to be poetry majors in that class. You want to avoid that and figure out, you need to make sure that not every essay is about how much they, you know, love Tennyson or something. And then one part of that diversity is this person offers an art museum, this person offers exposure to squash. Yeah, diversity of all kinds are going to be in tension, which is why these universities are saying

they have a compelling interest in racial diversity being one small part of that soup recipe. But, but, because the problem is if you're going to privilege these categories, you're running headlong into putting together a system, which if you are interested in racial diversity, because again, well, one of the things that is really clear here is that the advocates and some of the progressive justices, the advocates for the school and some of the progressive justices were kind of doing two things at once. They were saying, look, race doesn't really matter here overall. Like if you're going to look in the overall, the overall scheme of things, race is really a just infinitesimally small aspect of this whole thing. But then on the other hand, it was, but it's indispensable.

But we have to be able to do it. This was a huge tension of the argument and where I thought, honestly, I thought it was weird. The strategies of Justice Jackson and Justice Kagan weren't just intention. Like at one point, Justice Kagan is like,

yep, she's wrong. Ignore that strategy. Now come to my strategy. Justice Jackson following the strategy that like we have no evidence that race matters whatsoever, that it has been the deciding factor in any admissions acceptance. Right. And that that box checking serves no purpose whatsoever. So how can we ban schools from doing it? And Patrick Strawbridge, of course, had a pretty obvious but well-done answer, which was, if it makes no difference whatsoever,

they sure are fighting hard to keep it. And Justice Kagan is like, of course the box is there for a reason. It'd be weird if it weren't. So obviously race is a factor. And then she goes on to sort of follow this strategy of, again, the compelling interest, perhaps, that racial diversity specifically has for these college campuses. I thought that it was, you know, all three democratically appointed justices certainly were not on the same page and certainly not combined strategies or how to sort of triple team any of the advocates.

And David, I have to say, I've said this before, that overall, it feels like there's a lag in what the court is and what everyone thinks they know about this court. And then what's actually happening in oral arguments. So for instance, I always think it's weird that people keep putting up progressive oral advocates who then don't speak fluent conservative. And I've said that in previous cases, but it also struck me as odd from the justices standpoint. You know that there are six very, very skeptical people. What are you doing to try to, for instance, uphold the Grutter case and simply say that, for instance, Harvard violates that, but UNC doesn't? Yeah.

I didn't see any justice pursue that strategy. And that was strange to me. It's like the incrementalism versus absolutism that like, well, my dissent is going to be on fire. That's fine. Write a fiery dissent. But isn't it weird at oral argument not to try to at least open up the possibility for a Kavanaugh or a Roberts to say to decide the cases differently. And there was just not a lot of crowbar separation done by those three. Interestingly, the crowbar separation that you mentioned was done by Gorsuch. Yeah, yeah. That was what was interesting to me because the Harvard case compared to UNC

has really bad facts. I mean, some of the quotes on the record, there's a mention of the sealed record that he couldn't talk about during the oral argument when Justice Sotomayor says there's no evidence in the record. And he's like, yes, there is. And she's like, well, that's just one admissions officer. And he goes, it's a conversation between three admissions officers. Justice Sotomayor, by the way, has run into this problem before where she will state something as fact and then doesn't seem actually familiar with the record in some of these cases at oral argument.

I haven't seen that problem in her written opinions, but this was one of the more glaring examples of it actually did her position more harm because she opened it up and then he was like, yep, it's right here. Because she opened it up and then he was like, yep, it's right here. Now it was sealed. So he couldn't actually discuss the details of it. But based on the context, we can assume that this was three admissions officers very much discussing the race of a candidate as being a primary factor in their admission. Harvard and UNC. UNC, if you're looking at a lot of the statistical data, UNC actually seems to have a better story to tell than Harvard about holistic admissions. It is much less top-heavy economically than Harvard is. It does a really good job, say, in trying to get more rural applicants. It has a lot of things that it does that are better as far as what you might call full spectrum diversity than Harvard does. But it has some really bad anecdotes. It has some really bad evidence of sort of when race is part of the factor, what that leads to, that it devolves to sort of this, you know, the kind of conversation and the kind of discussions that have been brought out in the record. But at the same time, you had a trial court that really just kind of discounted a lot of that.

And so you had factual findings in the court below that weren't great for the plaintiffs compared to, say, some of the facts that you have in the Harvard case, which is why there is daylight in these. There's not a lot of daylight, but there is daylight between these two cases. And it was very clear to me that plan A for UNC was to say, preserve the ability to consider race, preserve the ability to consider race. And then plan B was find a way that Harvard can lose and we can still win. That's where I thought Park was actually, again, I thought he maybe should have made it more explicit because if Harvard wins, you certainly win. So your only need up there is to say why you should win even if Harvard loses. And again, if Gorsuch hadn't teed up that one moment, this is not a team sport.

There's a reason these are two different cases, UNC. Do more to, how this would work by maintaining Grutter. Harvard doesn't meet the Grutter requirements. It is mechanical. There's pretty decent evidence for intentional discrimination, which is separate, of course, from the compelling interest from Grutter, from strict scrutiny. If you're intentionally discriminating, there's no compelling interest. Ball game over. strict scrutiny. If you're intentionally discriminating, there's no compelling interest. Ball game over. And I didn't feel like that was happening much in the UNC argument, which was just a weird strategy. Who cares if Harvard hates you if you get to keep your admissions policy? Yeah, yeah, exactly. I mean, you want to give the justices an ability to reach an outcome that is going under which you win. And there is a path there that sort of says, you know, we don't even have to really we don't even really have to revisit prior precedent.

invidious discrimination on the basis of race and violation of Title VI because it has a system that is set up that makes race a minus for Asian Americans. And if you reach that finding, you can send that case back and you can rebuke Harvard without revisiting precedent. It was very clear to me that that's one possible path of argument, but it's a path of argument where you don't get a kind of clear reaffirmation of the ability to use race. And so he obviously wanted a clear affirmation of the ability to use race. And here was a line of questioning that I thought was really interesting, Sarah, and I'm very interested to get your view on this. It seemed like some of the progressive justices were saying, if you don't use race, then somebody can, then a person of any sort of record of discrimination or adversity can say,

I have faced discrimination because I'm a Mormon growing up, say, in a highly fundamentalist Baptist community, or I am Hindu growing up in a Catholic community, or I am, you name the kind of, or I was disabled and I had to overcome adversity. And then the progressive justices seem to say, if you can't use race as a factor, then the people who face racial discrimination

would be the only people who couldn't come forward with their own story of discrimination. But I didn't get that at all. Yeah, I found that really weird. I didn't understand the argument because the whole point is you simply, for the University of North Carolina purposes, they have a box that you can check if you want to. You're not forced to check what your racial background is, but there are these boxes there and you can check them.

Separate from that, you can write your essay on whatever you want. Separate from that, you can write your essay on whatever you want. And I was very confused as those justices trying to defend the box part of the UNC application process then kept conflating that with the essay portion, where it was very clear over and over again, yes, if you wrote your essay on overcoming discrimination, that would be a compelling reason why the school might want to let you in that doesn't have to do with race. It's about overcoming adversity or leadership or, you know, in one example, it was visiting your grandmother's small rural community in China, for instance. Ah, yes, like bringing, you know, this like larger worldview, et cetera. Like all of these things the school could say increased diversity without resorting to racial stereotyping and grouping. But yes,

Justice Jackson particularly kept coming back to this idea that everyone else would get to use their stories except for someone talking about their story of race. And it just, I don't understand where that came from exactly. Now, here's the reverse side of that. I don't understand that line of questioning, but it was certainly a question of what, similar to juries, for instance, bats and challenges about race, you can't use a race proxy and say, well, the example given

an oral argument. What if you had a special program to admit people who were the descendants of slaves? And Patrick Strawbridge basically says, I think that would probably be a race proxy, depending on how the program was created, versus, for instance, the children of immigrants, regardless of what country they were from. That is not a race proxy. That is about culture and internationalism and all these other things that aren't simply an only race, he said. But then he got to the gender question, David, which was really fun, I thought. So men are falling way behind in college admissions to the point that they're making up 40% or less of a given college class. And at some point, one could imagine that schools need to have a gender

affirmative action to help men represent the class because it's bad for the country if men aren't going to college. It's certainly bad for the school, yada, yada, for sort of the same compelling interest argument. And Strawbridge's answer was, look, race and gender are treated differently. Race is under strict scrutiny. Gender is under intermediate scrutiny. I don't know whether that would pass intermediate scrutiny, but it's a lower bar. So maybe you could, maybe it would. And the justice says,

so in this world, white guys are actually getting affirmative action, but black people aren't. And Strawbridge was like, well, you just interjected race into that. It would be that all men are getting a benefit. That's a messy hypo in a lot of ways because it's so realistic, I think, David,

that they are going to have to start using probably gender affirmative action if they want, quote unquote, diverse classes. But, you know, this is where I would have, I would have wanted Strawbridge to immediately go to, wait a minute, okay, hold on. Are we talking federally funded education here? Because both Title IX, sex, and Title VI, race, foreclose the possibility of discrimination on the basis of sex and on race. So sex and race, Title IX, Title VI, you can't discriminate.

But isn't that where the gender thing becomes all the better for this case? Because it is a truly one-to-one, unlike the race thing where you have all sorts of different races and shrug. Gender. For every man you admit under a gender affirmative action policy, you are by definition not admitting a woman who is otherwise more qualified. Right. But, you know, this is what frustrates me about the conversation in general is how and the oral argument in general is how much depended upon this sort of, well, policy, what do we want it, what kind of composition do we want, as if Congress hasn't weighed in here

with very clear language. And I think one of the things that has always bugged me about the affirmative action line of cases and sort of the Title VI, the way Title VI has almost been kind of written out of American law by saying, well, we're gonna interpret Title VI consistent with the Constitution as the 14th Amendment and Title VI basically being the same thing. They're not the same thing.

They don't have the same language. intermediate scrutiny sort of regime under the 14th Amendment, you have a Title IX that says, if you're a federally funded institution, you don't discriminate on the basis of sex. Title VI, even if equal protection under the law is a more vague term, and it sort of might leave a little bit more wiggle room here, Title VI says no discrimination on the basis of race. And so this is something that I think got lost in a lot of the back and forth about, well, here's this composition that would be better. And here's that composition would be better. It was lost. What was lost in the background is that Congress has spoken on this. And then if Congress wants to speak differently, it can try. And then you

can see if that's consistent with the 14th Amendment. But it's amazing how little the actual language of the governing statutes that govern all institutions of education that are federally funded, how little that played into the conversation. We are actuaries. In a world filled with unpredictability, we use our math skills to navigate uncertainty. Actuaries make a difference in people's lives across industries and the world. Actuaries have the freedom to work anywhere. And according to U.S. News & World Report, we're the 25th top-paying career.

Make an impact as a fact-seeker and a truth-teller. Use your math skills for good as an actuary. The world needs you. And this actually is a pretty good segue to a few other areas that I want to bring into this conversation, David. One, the Michigan and California briefs. Because in some ways, the world has changed so dramatically from Grutter. Grutter was a 2006 case. So in 1998, California admits the first class that was race neutrally admitted where race could not be a factor in the admissions process. Michigan passes their prop to shortly after Grutter. Florida uses race-blind admissions. Texas uses race-blind admissions in a top 10% way that we've talked about before.

It's all to say, David, actually a lot of states, Oklahoma, tons of these states already do the thing that UNC is claiming would destroy their school. It's not particularly credible if you don't address what, again, large chunks of the country already are working under and no one seems to think that the sky has fallen. That's where the Michigan and California briefs are really interesting to me because Michigan and California both filed briefs saying, yep, we do race neutral admissions

and it's not working for us. Whereas of course, Texas and Oklahoma and Florida are like, it's going great. We're fine. Diversity, yay. And so I thought it was worth addressing some of what they talked about because in particular,

I found Michigan's brief really compelling in some ways. In other ways, maybe less so. So, David, let me start with the meaty part of Michigan's brief. Despite Michigan's demonstrated commitment to student body diversity and despite having spent more than a decade successfully enrolling substantially more socioeconomically disadvantaged students, race-neutral admissions policies have not significantly increased enrollment of underrepresented minorities. In 2006, the last admissions year before Prop 2 took effect, underrepresented minorities made up 12.9% of Michigan undergrads. By 2014, they made up only 10%. In recent years, it has recovered modestly. So 2021, 13.4%. So let me run through those numbers again. It's 12% when they were using race. Sorry, 12.9. So let's make that 13 for our purposes. 13 before they use, when they use race, it drops to 10% at one point, and then it goes back up to 13 and a half percent. So University of Michigan accepts slightly more underrepresented minority students under their race blind policy than they did when they were considering race as an admissions factor. So what is University of Michigan talking about here? First of all,

they clearly think that they would, that number would be much higher if they were still considering race. And then they talk about the gross diversity numbers not capture the full picture. Reductions within individual groups have been far more pronounced. students was Black students, 7% 2006. It's now at 4%. That's a 44% reduction. Native American students was at 1%, and now it's at 0.1%, a 90% reduction. And they talk about what that looks like on a college campus. There are 74 Black students among the 2,400 undergraduates enrolled in the business school. Eight Black students among the 164 majoring in public policy. One Native American student in the 713 in nursing. Seven Black students in the 208 undergraduates majoring in architecture and urban planning. Of course, some programs have no underrepresented minorities at all. Here's the thing, David. And this was an overall problem

I thought of the oral argument. And then I want to get to the parts that were very compelling in University of Michigan. But it is hard to say on the one hand that race is but part of a holistic application. And on the other hand, if we don't consider race, minority enrollment will plummet. Well, which is it? If race is not the but for cause of admission, why would minority enrollment plummet?

And they were having trouble grappling with that when Justice Jackson, on the one hand, was trying to say race doesn't matter. These boxes don't matter. And on the other hand, we have to use the boxes, or you live in a world where minority enrollment plummets, as Justice Kagan was positing, and that that would be a big problem in a, you know, diverse country as ours to simply only have non-underrepresented minorities graduating from college, holding leadership positions, going to law school, running for Congress, whatever that may be. Something that I think folks agree with. But this is where all of these states make a huge difference to me.

What is the experience of places that are using race-neutral alternatives? And it becomes important because that is, remember, one of the factors that they have to meet, that there is no, it has to be narrowly tailored, that there is no race-neutral alternative that could achieve these goals. And when we talked about the briefs, David, and Harvard, of course, Harvard said, well, sure, we could achieve the racial goals overall, but then we'd have to give up legacy admissions. And actually we like rich people. Again, which is it? Is it that race isn't a factor or that race absolutely is a factor and we want to factor it in the way that we want. And by the way, this also was a problem because if your point is

diversity, then there isn't necessarily a set number because that would be a quota. You can't say it has to be reflective of the community or you're already acknowledging that you're using a quota system. So again, it gets really hard when you say the way that we judge this is whether minority enrollment plummets because plummets from what? How do you know what diversity looks like unless you're using a de facto quota system? There's just a lot of internal contradictions to using affirmative action because at the end of the day, it is racial discrimination. It's just that we're trying to argue this is good racial discrimination. The other kind is bad racial discrimination. Yeah. And one thing that I think is also interesting when you're saying, okay, race is not the dispositive factor, but our evidence that, and it's only maybe one small part of a holistic analysis and our evidence that race neutral factors don't work is, well, race isn't exactly

beginning to line up with what demographic comparison, you know, so, you know, these demographic comparisons as to what is the proper percentage of people that should be of any given race in a college. That's a really interesting question for me. States have big differences in demographics. Cities have big differences in demographics. So, for example, Michigan, if you're talking about the University of Michigan, Michigan's a really white state. If you're talking about the University of Michigan, Michigan's a really white state. It's about 80% white alone demographics, very different from other states in the union, like say a Texas. Or what about the city of Ann Arbor?

Well, the city of Ann Arbor is a lot less white, like 67%. It's a lot more Asian, so 84%, and a lot less black and Hispanic, you know, members of the community. So what, what's the mix here? And, and what you really seem to get at is this idea that, okay, as you're very eloquently put, race is just a small little thing. It's just a small little thing. And then you turn around and say, but unless we can use it, we're not going to get to these kind of very specific number targets, which as you indicate, seem to be like a quota. And also, what's the target? Like what's, what is proportionate representation school by school in the United States of America? And so, again, it just starts to get to be a mess after a while or not after a while, almost immediately. Interestingly, I think University of Michigan in their brief again made some really compelling arguments. Number one, that the idea of like a top 10 percent system like Texas uses won't work in all states.

It won't work in the state of Michigan a top 10% system like Texas uses won't work in all states. It won't work in the state of Michigan, they argue. In Michigan, the statewide number of majority minority schools is dwarfed by the number of schools that are heavily white. Hispanics and Native Americans are not a majority in any Michigan county or school district, and African Americans constitute a majority only in the Detroit area. Thus, a percentage plan would have minimal or negative effects on racial diversity. And of course, a percentage plan would not take into account Michigan's large pool of non-Michigan applicants. And then David, this is the part that I think I found most compelling probably, again, from their brief. While increasing the representation of low-income students remains an important part of the

university's goal of increasing campus diversity, it has not succeeded in increasing racial or ethnic diversity. That is not surprising. There are almost six times as many white students as Black students, who both come from low socioeconomic status families and have test scores that are above the threshold for gaining admission to an academically selective college or university. Pursuing socioeconomic diversity alone is thus not a realistic strategy for enrolling an academically talented class that is diverse in many ways, including with respect to race. And David, I just hear this argument a lot on the right,

and so I thought it was worth challenging head-on this idea that like, no, no, no. If you just use socioeconomic status, um, a, uh, it won't have all this messy invidious potential race discrimination. And B it's such a proxy for race. Um, your school will be diverse racially as well. And Michigan saying like, look, not in our state that if you only took into account socioeconomic status and not race at all, as they're doing, I mean, they're not only taking into account socioeconomic status, of course, that you're going to end up enrolling a lot of kids with low socioeconomic status. right which is true in lots of parts of the country and that racial diversity has a separate and distinct purpose beyond simply poor kids like yep those are not one-on-one i agree with that i think race is not the same as income obviously i think that goes without saying and that racial diversity has a purpose separate and apart from socioeconomic status, of course. But to get to Justice Jackson's question, yes.

And if race is an important part of who you are and the experiences that you've had so far in life, that's what your essay is for. And then University of Michigan and all these other schools can take it into account. But David, the problem with that is someone needs to tell the kid to put it in their essay. And of course, the whole problem with this may be that A, you're not getting enough in the applicant pool and B, the wealthy kids

who have access to better college counselors to outside college advisors tell them, aha, definitely write this down in your essay. And if you're just a normal kid from a middle class family and you're trying to make your way in the world, maybe no one's telling you to make sure to talk about your racial struggles in your essay. Well, and also, yeah, that's absolutely right. And as I wrote in my Sunday newsletter, class is not a one-to-one proxy for race because historical discrimination might create a race disproportionate class effect, but does not create a race exclusive class effect. So for example, more, there are more poor white Americans in the United States than there are poor black Americans in a state

like Michigan, which is very white, as, as we said, very white, especially outside the Detroit area. It's, you're going to have a lot more poor white students than you're going to have poor black students. And so, you know, these classes, not a sort of a one to one kind of comparison with race, although the side effect of a class and now one of the side effects of a class based sort of analysis, One of the side effects of a class-based sort of analysis, as opposed to a race-based analysis, is that a class-based analysis would have a race disproportionate effect. Maybe just not the one that Michigan wants to see, which I think is a really important distinction here. But yeah, it is absolutely right. And then there's another thing that I thought was really interesting, Sarah, about some of the evidence in the Harvard case that really goes to sort of the different experiences that students might have based on the amount of money, you know, their social class. And it is the better you do when you are somebody who has more money.

When you do well, you tend to go ahead and apply for the really good schools when you don't have as much money and you do really well. Sometimes you just don't even apply. There is this really fascinating part of an expert report in the Harvard litigation that says very high achieving students, SAT scores of 1450 and higher, nearly half of those students from families making more than $100,000 apply to become members of the Harvard class of 09. By contrast, less than a quarter of those very high test scores making less than 100,000 applied. And I do think that there is a situation in which based on difficulty growing up, maybe lack of access to high quality counseling, things like that, your horizons are often very different depending on where you come from. Now, let me read you a portion of California's brief that I found least compelling. Okay.

of California's brief that I found least compelling. Okay. Now, they're talking about Prop 209. Again, it goes into effect in 1998. At UCLA, African-American students made up 7% of the freshman class in 1995 and only 3% of the class in 98. Latinx students were 21% of the class in 98. Latinx students were 21% of the class in 1995 and 10% in 1998. So first of all, the 95 to 98 feels like a little bit of nut picking there, like why those two years, except that they had found they actually weren't using particularly compelling

ways to find students that would be diverse on all sorts of other metrics in 1998, despite having some time to prepare for that. But again, David, if your argument is that race is only the smallest part of this large consideration of a holistic application, then why did enrollment of Latinx students go from 21.6% to 10% simply because race was no longer allowed to be used as a factor in admissions? Now, interestingly, at the oral argument, repeatedly this idea comes up that under the UNC expert, race affects just over 1% of students. Now with 40,000 applications, that's still 400 or so students who are affected. The but-for causation of race is what's determining their acceptance or denial. The other side, the Students for Fair Admission folks, their number

was higher, but about 750. So instead of 1%, like 2%, 3%, whatever that is. But then I'm looking at Michigan and California telling us what happened when they went to race neutral standards. 50%? I mean, what is this Latinx number? i think they're not making the argument they think they're making here whoops yeah and again i don't want to sort of be a broken record here but again a lot of these numbers seem to reaffirm that what was actually going on was discrimination on the basis of race and doesn't the law clearly speak to this well this gets though to that overall argument david that i do think is worth i want your thoughts on this that there's a misunderstanding around the 14th amendment that it's not about not discriminating on the basis

of race. It's about correcting the badges of slavery. And so, yes, very much race was supposed to be taken into account. The whole thing was about race. That was the purpose of the amendment. Yeah, sort of an equity versus equality kind of argument. And isn't that what affirmative action is? It's trying to erase the incidences, badges of slavery and other types of discrimination. So I think that is an actually very interesting argument to grapple with when it comes to. So if you're looking at, say, that this the sadly defeated initiative of 40 acres and a mule. Right. So you say take somebody who is a freedman, somebody who's a freed slave and you say, here's 40 acres and a mule, right? So you say, take somebody who is a freedman, somebody who's a freed slave,

and you say, here's 40 acres and a mule, which is a form of compensation for stolen labor. It's a form of economic benefit. It is, and you're talking about people who are part of the specific oppressed class of individuals, which is an argument I think that has maybe a bit more resonance if you're talking about, for example, when you can say that a person is a descendant of freed slaves. That's a very, that's a different argument than saying I am the son or daughter of say an extraordinarily wealthy wealthy nigerian

neurologist right so there's a a different kind of oh but david i'm torn on this i am torn on that exact example because on the one hand i disagree with patrick strawbridge i think you could have a program specifically intended to benefit descendants of American slaves. I understand that there are ways, like for instance, on a jury pool, for instance, that that would absolutely be a proxy for race, but I'm not sure in school admissions that it is simply a proxy for race. I think it is doing some other work there. But then the problem is, David, what other work do I think that's doing well i think that people who are the descendants of slaves had various disadvantages because of the generations

you know above them but if you're let's make the kid not a rich nigerian neurologist kid or let's whatever you're just a a normal black american who's not descended from slaves you know your parents came over or grandparents came over later but you live in inner detroit you live surrounded by other black people who are descendants of slaves and so all the assumptions made about you are the same as if you were. Sure. And all of the discrimination, all of that is based on your skin color. It's not that someone like looks and like checks your paperwork to see if you're descended from slaves. And so in that case, that person's no better off because their great grandparent wasn't a slave, but their grandparent was treated as if they were

and faced all the same discrimination of Jim Crow that the descendants of slaves did. So at the point that we acknowledge the descendants of slaves face a unique burden in the country, you do end up in a bit of a place. Right, right. And I do think that if you're talking about the 14th Amendment, you do have to understand that what is the situation in 1868, say, is different from the situation in 2022, which is one of the reasons why I think the equal, if you are, if you're, everything is about the equal protection clause, Sarah,

I think the conversation gets a lot more interesting. It's interesting to me that Park began his oral argument by referring to original public meaning, and Park again is defending UNC's position. I think the argument gets more interesting when you're talking about Title VI, the argument gets less interesting because of the clarity of the language of Title VI that a lot of the justices just don't seem to really wrestle with. But again, a lot of this stuff, all of this conversation that we're getting towards really does demonstrate how race by itself is such a crude proxy for experience. It is such a difficulty. And that's why I think that the boxes are really unhelpful and the essays are very helpful,

but I do wish there were then a way to do a better job. And maybe this is up to the school of talking to kids about what needs to be in those essays. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear,

every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's auraframes.com. Use code advisory at checkout to save. Terms and conditions apply. So David, I have one other email that I want to read. And this is from a friend who is a black man who went to an Ivy League school. And he said that he thought some of our conversation last time was a little one-sided. He said,

one way to summarize my frustration is that if you accept the idea that relying exclusively on quote objective measures like test scores constitute one of a variety of valid ways to decide admission, the idea that people who would get in one way don't get in anymore isn't evidence of anything untoward. But a lot of your commentary seemed to link the two. I agree with that, by the way, in the same way that I think the people who are for affirmative action sort of lack some coherence in the muddy middle. I think some of the people against affirmative action lack some coherence on what is objective criteria because it's not just test scores. We know that. I think my core philosophical disagreement is with the idea, as David put it, that, quote, American institutions have a responsibility to address racism, but it's not okay to impose a cost on individuals.

My first objection is that the distinction is largely artificial. I'd argue that families are relevant institutions. A lot of wealth and even larger amount of social and cultural capital is inherited. So I didn't do it. My great grandfather did. so i didn't do it my great-grandfather did um we're not or frankly my father since we're not exactly talking ancient history when it comes to jim crow for instance i think he means seems problematic second as a practical matter that approach often leads to the same someone should fix it as long as it's not done at no cost to me what i would call the NIMBY of college admissions attitude that informs

the Democrats' incoherent talking points on clean energy and cheap gas. If it's a big problem, they get comfortable with some broadly distributed pain to fix it, all of which is different from individual moral culpability, but problematizes the, if you're accepting a certain number of students and giving a plus, then of course it's a negative for the ones you didn't, that you don't give it to, framing you both seem to be accepting. Perhaps relatedly, personal score, I assume, isn't just recs. It's also where students explain context and difficulty. And it sounds like the factual findings from the lower court were that Harvard is doing, was not mechanical plus for race alone, despite correlations. Given the data I have seen on poverty discrimination, I'd be surprised to

not see those correlated with race. Sure, it's disheartening to say, if you were any other race with these scores, I think you'd have a better shot. But that entire framing goes back to pretending it's a level playing field when it's not. David, I think those were some very fair and well thought out criticisms in there. And I want you to address some of them, accept, disagree, deny. So here's the problem with his institutional versus individual framing. Okay. Harvard, let's just, let's just take Harvard. Harvard is saying that we are not going to bear any meaningful institutional cost here. We are not going to give up on our donor kid privilege. We are not going to give up on our

legacy kid privilege. We're not going to give up on our professor kid privilege. We're not going to give up on our squash kid privilege or our lacrosse kid privilege or our fencing kid privilege. All of the things that allow us to amass an enormous amount of wealth. I mean, the Harvard endowment is the size of the GDP of some countries. All of the things that allow us to sort of maintain our elite academic standard. We're not going to even have go from 99th percentile on the SAT to 98th percentile on the SAT. All of that is off the table. All of the things that are the kinds of institutional investments or institutional costs, remember, and this is a school that implemented a holistic

standard to keep Jews out. Okay. So it's not, this is not an innocent institution. And so you say to this not innocent institution, all of the things that, and we believe keep our power and our position and our privilege, we are going to retain. And so how are we going to become more diverse? Well, what we're going to do is become more diverse is we're going to say to individual Asian students who are being admitted that,

man, you know, that personal score for you, you're just part of a group of people that has been a part of a group of people. You just have less kindness. You have less courage. You're just part of a group of people that has been a part of a group of people. You just have less kindness. You have less courage. You have less integrity. But David, the pushback to that is, you know, remember I said that on average, the highest racial group on personal scores was African-Americans and the lowest was Asian-Americans. But what if it is the case that if you're applying to Harvard, someone has told you that your essay should be about overcoming racial discrimination or why being black has really mattered to your experience.

And so, yep, the black kids are writing essays on that. And the Asian kids, frankly, aren't because they've been told that their race isn't helpful slash might be hurtful. And so they're writing essays on like how great it was to win that chess tournament. But the personal score isn't helpful slash might be hurtful. And so they're writing essays on like how great it was to win that chess tournament. But the personal score isn't to do with it. The personal score isn't about what you're overcoming your history of discrimination. The personal score is about things like empathy and kindness and integrity. And, and so Asian students are being, some of that is looking at the essays and saying, what will this person add to our incoming class? I just completely reject the notion

that you're gonna have an entire racial group that is gonna be systematically less kind, less empathetic, less courageous, less integrity because of high school guidance. If anything, if you're talking about people who have invested an enormous amount of effort in putting together the peak application to these schools, the idea that they would systematically not know that they have to demonstrate their integrity or their kindness or their empathy strikes me as really, really rough for Harvard. strikes me as really, really rough for Harvard.

I think we're talking past each other a little on this one because you're right that the personal score the admissions officer is going to assign is looking at those qualities. And by the way, Harvard interestingly changed those qualities after this lawsuit was filed, in part because... Speaks to a lot. It does. Though, what I found really interesting about it

was that it appeared to actually just move from benefiting extroverts to including introverts in its overall assessment of value, that they will value introverts, which, yay. But the idea that if you write your essay on the difficulty of violence in your neighborhood or the difficulty of your dad facing overt discrimination and what that was like growing up in your home, and that we can't say that that would be taken into account in something that looks at

empathy and leadership and ability to show kindness to others as compared to a kid who writes about winning the chess tournament i i mean if i were an admissions officer i would but there's no evidence that that's the case i mean you're you're kind of there's no evidence so the the problem i have is you know as the sFFA stated in its brief, it wasn't like on the margins Asian Americans received worse scores in the personal rating. It was a statistically significant and negative relationship between Asian American identity and the personal rating. This is what the district court found in ruling for Harvard.

Yes, based on their essays, their college counselors, their teacher recs, like there's a whole bunch of stuff that goes into that. And you can't come up with any race neutral reason why that might be. No. Statistically significant Asian Americans, 100%, absolutely not.

That is invidious discrimination. I will die on that hill. Fair enough. Yeah. So David. Statistically insignificant. But, because it's not, the question isn't overcoming discrimination.

It's courage, kindness, empathy, integrity. No, but overcoming discrimination would be one of the ways you show those qualities. There is no evidence that I've seen that the difference in disparity, the disparity is because black students wrote more eloquently about overcoming discrimination. Fair enough, David. Yeah. But yeah. So that's what I mean by institutional responsibility versus imposing an individual cost. I think that's fair, but I just take the point about families being an institution. Again, this is like sort of the incoherence in the mushy middle, right?

Like both sides run into some real problems. And frankly, it's because of this country's history and its unwillingness to deal with this over and over and over again that you end up in 2022 with a real problem where the oral advocates, frankly, on both sides are getting asked, was 25 years. What is that 25 years that we talked about in Grutter? We said this would be gone by then. Did we mean we hoped it would be gone by then, the need for it? Or did we mean that legally it would be unconstitutional in 25 years? And the UNC guy very honestly saying, we're never getting rid of this.

Yeah. And look, I take the point on the family situation. I mean, if you're somebody who has a 10,000, you've inherited a 10,000 or a thousand or 200 acre farm in Mississippi or Tennessee that your family's had since 1790, there's, you know, some interesting questions you might want to ask about your family's history and legacy and what kind of moral responsibility attaches to you

in your role as a good citizen. Or the fact that your dad got a job in the aftermath, during or in the aftermath of Jim Crow that would have otherwise gone to a more qualified Black guy, but for the fact that

they weren't hiring Black guys. How are you even going to know that? How are you supposed to measure that? Well, and which means, which is one of the reasons why I've long advocated for people to take searching looks at their own lives and their institutions they belong to and what are moral responsibilities that attach in that circumstance. The problem you have is the government coming in with this extraordinarily blunt instrument and saying, we're going to sort by race on this basis. That's when it gets really, really rough for me. And there's a difference between a moral obligation when we need to often, and this is in a lot of areas, defining a difference between a moral obligation

and a point where state power moves. And especially when state power moves specifically and explicitly on the basis of race. And I think we should just put a dot, dot, dot after that and pick up Thursday morning. We'll finish the oral argument.

Harvard's side of the case, they weigh in. The justices start getting exhausted and we'll have more from the line sitters as well. Sorry, not the line sitters. They're good line sitters. The people sitting in line, not the line sitters. One thing we didn't cover, man, this topic, you can just go 17 different ways, is the really interesting line of inquiry to SFFA's council about can race neutral criteria be race discriminatory? And I think there was some very interesting back and forth there, which reached a kind of unsatisfying conclusion. But I think that's something we need to talk about because SFFA's position was not that race-neutral criteria are always okay. That's right.

Sometimes race-neutral criteria can be racially discriminatory, and that's a whole interesting conversation. And, of course, we'll have to give our predictions as well of how the case turns out. The chief showing more of his cards than I thought he would. And Justice Kavanaugh and Barrett chiming in at times as well.

So we'll get to all of that in the next episode. Yeah, wow. What a topic. So thank you guys for listening. Really appreciate you listening in and would appreciate it if you rate us, if you subscribe, and if you check out thedispatch.com and we will be back Thursday morning. Bye.