Tangle - Affirmative action goes to SCOTUS.

Episode Date: January 26, 2022

On Monday, the Supreme Court agreed to hear two separate challenges to colleges who consider race during the admissions process (often called affirmative action). Both cases, one from North Carolina and the other from Harvard, allege that race-based admissions processes discriminate against Asian Americans.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. From executive producer Isaac Saul, this is Tangle.

Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, a place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we are going to be talking about one of the more controversial topics out there, affirmative action. Before we jump in, I want to quickly make a correction from yesterday's podcast slash newsletter. I actually don't know if I made this mistake on the podcast, but I did make the mistake in the newsletter. I said that NATO was the North American Treaty Organization. This is a really dumb error.

NATO is the North Atlantic Treaty Organization. I, again, don't know how this happened. Well, actually, I kind of do know how it happened. I was racing at the end and realized that I kept saying NATO and it wasn't spelled out. And so I copied and pasted it somewhere else from somewhere else in the newsletter and then accidentally deleted instead of pasting it. And then I typed it out really quick because I was running behind. and then I typed it out really quick because I was running behind, and I probably just wrote North America instead of North Atlantic because normally when you write the word North in a word that starts with capital A, it's America, not Atlantic, and it was just kind of a brain fart,

but a lot of people saw it, and now I think a lot of people probably don't think I know what NATO stands for, so that's a bummer. So yeah, I made that mistake. It is the 52nd Tangle correction in its 130-week history. I track those corrections at the top of newsletters and podcasts to increase transparency with my readers, and I very much hate the practice on days like today. All right, so with that correction out of the way, we'll start off with some quick hits. First up, House Speaker Nancy Pelosi, the Democrat from California, announced that she would run for re-election. The 81-year-old did not indicate whether she would run for Speaker again. Number two, Democrats are beginning to push the America Competes Act,

a bill aimed at boosting U.S. high-tech research and manufacturing. Number three, former President Trump's new social media network, Truth Social, is reaching out to internet influencers to reserve their spots. Number four, federal prosecutors are examining the decision by Republican electors in some states won by President Biden in 2020 to send in signed statements purporting to affirm Donald Trump as the victor of the election. Number five, Sean Cattle, a longtime New Jersey Democratic political consultant, pleaded guilty to hiring two people to kill a former associate. It's an old and contentious issue now. Questions about the use of race in college admissions. They have been asked, answered, debated, discussed, argued over for decades, and now they're heading to the nation's highest court. And here we go. Breaking news out of the Supreme supreme court let's bring in the one and only pete williams pete what do we know well the supreme court's just agreed to take up another blockbuster issue

this is the question of affirmative action in college admissions supreme court taking up a case that could change the admissions process at colleges and universities all across the country. On Monday, the Supreme Court agreed to hear two separate challenges to colleges who consider race during the admissions process. This is often called affirmative action. Both cases, one from North Carolina and the other from Harvard, allege that race-based admissions processes discriminate against Asian American. When colleges are picking students to admit, they will often consider factors like community service, athletics, and sometimes race. It's unclear precisely how often and how many schools consider race in their applications, but it's generally accepted that it's a small minority, perhaps just a few hundred schools

of the 6,000 colleges in America, and usually at more selective schools. Most colleges don't disclose whether they consider race or how often. The idea behind race-conscious admissions, as it is sometimes called, is to address racial discrimination against black students that has existed for decades. Supporters of affirmative action say it levels the playing field and brings a more diverse group of students to campuses. Opponents say it is its own form of racial discrimination and has harmed some historically oppressed groups who tend to outperform academically. Most states do allow affirmative action, but nine have outlawed it. California banned it in 1996, Washington in 1998, Florida in 1999, Michigan in 2006, Nebraska in 2008, Arizona in 2010, New Hampshire in 2012,

Oklahoma in 2012, and Idaho as recently as 2020. So what's going on with these challenges? Well, both lawsuits are being brought by Students for Fair Admissions, SFFA, a Virginia group that argues that race should not be a part of admissions. In the case against Harvard, the group is arguing that Asian American students are significantly less likely to be admitted than similarly qualified white, black, and Hispanic applicants. It also found that Asian students receive lower scores on a subjective personal rating designed by Harvard's admissions to measure things like likability and kindness. to measure things like likability and kindness. SFFA has also asked the court to evaluate whether Harvard's admission policies violate Title VI, which bans racial discrimination by entities receiving federal funding. Harvard has defended its practices, saying it evaluates race in a flexible and non-mechanical way, and that its admission processes have repeatedly passed constitutional muster.

In the University of North Carolina case, SFFA argued that the state's top public university is violating Title VI and the Constitution by considering race at all. They argue UNC is a public university and is covered by the 14th Amendment Guarantee of Equal Protection. A federal district court rejected SFFA's argument, so it came to the Supreme Court. UNC has said it implements other programs to increase diversity, like recruiting low-income and first-generation college students, but no alternative would create a student body about as diverse and academically qualified as its holistic, race-conscious admissions process. It's worth noting a little bit of history about court rulings

on affirmative action. In 1978, in Regents of the University of California v. Bakke, the Supreme Court banned numerical race quotas for universities, but said race could be one of several factors in admissions. In 2003, the Supreme Court's landmark Grutter v. Bollinger ruling said that the University of Michigan could consider race as part of its efforts to assemble a diverse student body and its graduate programs. Similar rulings in 2013 and 2016 upheld those rulings for undergraduate programs. In 2019, a federal judge also upheld Harvard's admission practices, saying they were not perfect but past constitutional muster, and that the school was justified in compelling interest and diversity on college campuses.

An appeals court upheld that ruling. Meanwhile, a federal district court in North Carolina also rejected SFFA's arguments, and so the group took the case straight to the Supreme Court. Below, we'll take a look at some arguments from the right and the left, and then my take. First up, we'll start with what the right is saying. The right says the policy is dated and discriminatory on its own. They urge SCOTUS to end affirmative action, saying minorities like Asian Americans are being harmed. They say the policy actually hurts students it is supposed to help. Helen Raleigh said many Asian Americans, including her,

have high hopes the court will finally eliminate racial preference in the college admissions process. But on this critical issue, Democrats have chosen to embrace critical race theory, a neo-Marxist ideology that attributes all disparities in any group outcome to systemic racism, she wrote. Adherents of CRT claim that they must dismantle the racist meritocracy-based education system to achieve equity in education outcomes. In the last two years, Democrats have pushed for education reforms, such as the elimination of the merit-based admissions to elite high schools, phasing out gifted and talented programs, dumbing down math education, and dropping SAT and ACT scores from the college

admission process. Most recently, the Biden administration called on the Supreme Court to deny challenge to Harvard's anti-Asian race-based admissions policies. Democrats have targeted the institutions where Asian students have thrived the most, Raleigh wrote. Democrats argue that Asian students are overrepresented in elite schools and should be excluded to make room for oppressed people of color. San Francisco School Board Commissioner Allison Collins even accused Asian Americans of using white supremacist thinking to assimilate and get ahead.

Asian Americans have endured a long history of bigotry and racial discrimination in the United States and have been part of the civil rights movement to help the United States become more just and fair for Americans of all races. The AAPI community's overall high level of educational attainment In the Wall Street Journal, Jason Riley pointed to a study showing black students at Duke were dropping out of challenging majors at a higher rate than white students. The Duke findings are important because they demonstrate that racial preferences in college admissions are not only legally dubious, but also counterproductive, Riley said. Students who would likely thrive at less selective institutions are struggling at elite schools where they are admitted for aesthetic purposes.

After the University of California system ended its race-conscious admissions policies in the 1990s, black students were steered into schools that better matched their academic preparation, and black graduation rates rose. The plaintiffs in the cases against Harvard and UNC are hoping that the Supreme Court will finally stop kicking the can on racial preferences, which is essentially what it's been doing since the 1978 Bakke decision when the court banned numerical quotas but said that race could be one of several factors considered in college admissions. Nevertheless, it has become a major factor even while school admissions officers pretend otherwise, and they will continue down

this road until the court decides that the Constitution and the Civil Rights Act of 1964 mean what they say, that discrimination on the basis of race is illegal. In City Journal, Joel Zinberg said the court has a chance to end institutional bias at universities. The time for a change in direction is long overdue, he said. Both Justice Sandra Day O'Connor, writing for the majority in Grutter, and Justice Ruth Bader Ginsburg, writing in concurrence, respectively expressed the hope that affirmative action could end within 25 years or a generation. Grutter was decided 19 years ago. Since then, conscious institutional bias against minorities has largely been eliminated, and most institutions are committed,

perhaps excessively so, to eliminating even unconscious bias. State-sponsored discrimination against any group in the name of diversity has become a less compelling interest than it was in the time of Grutter, he said. We should reassert the precepts of the Equal Protection Clause to shield all races and ethnicities from unfairness. As Chief Justice John Roberts wrote in 2007 in reviewing a Seattle school system affirmative action plan, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. All right, so that is it for the right to take. That brings us to what the left is saying. The left says affirmative action is still needed and

supported even by Asian American students. They argue that states which banned affirmative action have seen strong negative outcomes. They say there is too much Supreme Court precedent to reverse previous rulings. In UNC's independent student newspaper, the Daily Tar Heel, Nicholas Lee Wen Hatcher said we shouldn't be squabbling over affirmative action. The new faux progressive core of SFFA's messaging is that the group is working to end racial discrimination against Asian American applicants, Hatcher wrote. This narrative is filled with holes. Many Asian Americans benefit directly from affirmative action, especially those who come to the United States as refugees. Additionally, a 2020 study by AAPI Data found that a clear majority of Asian Americans support affirmative action policies, and if SFFA wanted to create more seats for white and Asian

students, it would be fighting to expand class sizes instead of quibbling over a few of the seats currently available. But despite these holes, the admissions debate remains intensely personal, and it's easy to get caught up in the rhetoric of fairness. Anyone who has ever been rejected from a college has a stake in the game, Hatcher said. However, the real problem is that we have to play this ridiculous game in the first place. We must remember that affirmative action is the bare minimum. It doesn't even begin to address why we have to fight over access to elite institutions or how to actually support students of color after enrollment. U.S. District Court Judge Loretta Biggs, a double HBCU graduate herself, notes in her opinion that

nearly 70 years after the first black students were admitted to UNC, the minority students at the university still report being confronted with racial epithets as well as feeling isolated, ostracized, stereotyped, and viewed as tokens in a number of university spaces. In Slate, Mark Joseph Stern said the nearly guaranteed outcome will be a ban on affirmative action, reversing 44 years of precedent. For as long as GOP lawyers have sought to eradicate affirmative action through federal courts, opponents of the policy have pushed for bans through the democratic process as well, Stern wrote. Nine states have banned the practice by legislation, ballot initiative, or executive action. These moves resulted in a staggering decline in the share of underrepresented racial minorities enrolled in higher education.

But the dream of a nationwide prohibition has floundered until now, not because Republicans won enough votes in Congress or persuaded enough states to enact a ban, but because they installed enough conservative judges to make this dream a reality by judicial diktat. This same story has played out time and time again over the last few years. The GOP has outsourced large chunks of its agenda to the courts. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season?

Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. Republicans couldn't hobble the public sector unions in blue and purple states, so they asked SCOTUS to do it. Republicans couldn't convince Congress to create a nationwide right to concealed carry, so they asked SCOTUS to do it.

Republicans couldn't force states to legalize discrimination against LGBTQ people, so they asked SCOTUS to do it. Republicans couldn't secure legislative repeal of campaign finance restrictions, so they asked SCOTUS to do it. Republicans couldn't stop the president from issuing vaccine policies, so they asked SCOTUS to do it. Republicans couldn't compel states to fund religious education, so they asked SCOTUS to do it. Republicans couldn't compel states to fund religious education, so they asked SCOTUS to do it. Republicans couldn't pass a bill to eviscerate the Voting Rights Act, so they asked SCOTUS to do it. The list goes on. It will only grow longer, and these days SCOTUS almost always says yes. In the New Republic, Matt Ford wrote that SFFA's claims haven't held up with scrutiny from the courts. The lower courts rejected these arguments against both Harvard and UNC after extensive fact-finding, a point that both schools stressed in their

responses to the petitions. As the district court's exhaustive and rigorous 155-page opinion shows, there can be no serious question that the university's admissions process complies with this court's precedents, UNC told the justices. Perhaps for this reason, SFFA devoted very little of its petition to the actual facts of this case. Instead, SFFA attacks this court's settled precedents that the university has meticulously followed. A sweeping ban by the Supreme Court could have negative consequences for Black and Hispanic applicants, Ford added. A 2020 study on the effects of California's Proposition 209, which banned race-conscious admissions programs in state universities after voters approved it in 1996,

found that the change led to worse outcomes for Black and Hispanic high school graduates in the state in virtually every metric. Admissions rates and postgraduate earnings declined for both groups without significant gains by white or Asian students. Alright, so that is it for what the left and the right are saying which brings us to my take so the most obvious thing for me is that this is just not a simple issue for the purposes of my take i'm going to focus a bit more on the outcomes and ethics of affirmative action rather than the legal tension around title 6 or the purported violations of the 14th amendment discussed above, which, for whatever it's worth, I think there are very good arguments on both sides.

What is certain to me is that affirmative action was necessary. It turns out that when you enslave, discriminate, and oppress a racial group for decades on end, it has a negative impact on their educational attainments. And given that most colleges have a sordid history of discrimination against black students and other minorities, instituting policies that open the gates to those students was a rational policy that really doesn't come close to making amends for the harm done if you stop to think about it for more than three minutes. The question now is whether it's time to end it or phase it out. This was, it should be noted, always the goal from the judicial perspective. This was, it should be noted, always the goal from the judicial perspective. Justices Ruth Bader Ginsburg and Sandra Day O'Connor hoped that 25 years from the 2003 Grutter decision,

we would end affirmative action. It's now been 19. I think there is a strong case to be made that institutional bias at universities has been seriously diminished since then, but I don't know precisely how you'd measure whether it's hit a point where ending affirmative action would be a net positive for society. In some ways, though, we're already seeing affirmative action be phased out. Past rulings haven't thrown out affirmative action, but they have allowed the courts to limit it in various ways, and they've greenlit states to choose whether they want it or not. So on top of nine states banning the practice outright, the vast majority of schools don't even consider race in admissions at all. There's a perfectly reasonable way to look at this and think the issue is already moving in an organic direction that opponents want it to,

and maybe this whole thing is being blown way out of proportion. I'm also sympathetic to the simple logic that if you want to ban racial discrimination, you should stop discriminating based on race. Inherent in this argument is the tension between equity and equality, which is a push and pull we're witnessing in today's discussions and debates about race all the time. One other important thing to consider here is that these schools, particularly North Carolina, aren't just considering racial diversity. What they demonstrated in previous court cases is they are genuinely seeking out diversity across things like class,

race, extracurriculars, and first-generation students. I think that this is a great policy because I think when students go to school, they should be surrounded not just by the kinds of kids who can pay for an SAT tutor or grew up in a Yale family, but by students with seriously different backgrounds who can compete with them academically. And it works in the other direction too. White students or wealthy students benefit from sharing classrooms with people that come from different racial or economic backgrounds. Harvard's policies, meanwhile, may not be succeeding in the same way. One suggestion SFFA made in its filings was for Harvard to eliminate its preference for white and

wealthy students, i.e. family of alumni and donors, and instead institute a preference for socioeconomic diversity. This would give the school greater racial diversity and class diversity without relying on race-based admissions, which seems like a superior alternative. Ultimately, I think there is enough clear Supreme Court precedent here, given that we are just 19 years from the times justices explicitly said they hoped the policy could end in 25 years or a generation, that banning affirmative action should be perceived as a vast overreach by the conservative majority. I also think it's true that because certain policies like Harvard's are failing or clearly producing discriminatory outcomes against Asian Americans doesn't mean the practice should be

banned outright. It means Harvard should reform its admissions process, even if it takes a court dictating that it do so. The other option, of course, is to just leave it up to us. Nine states have banned the practice and opponents can take it to the people, just like those states did. Given that a small slice of schools are even considering race in their admissions, those schools have a strong motivation to create diverse campuses, the negative outcomes we've seen in states where affirmative action ended, and the fact many of these colleges have demonstrated in court they're following the law, I'd hope to see SCOTUS just let this one ride for at least another few years or a decade. But I have to say, I suspect that outcome is unlikely.

All right, that is it for our main topic today. That brings us to your questions answered. Today's question is from Mike in Hereford, Arizona. I think I'm saying that right, Hereford. I actually have never heard of that town. Mike asks, why have I, we, not read or heard anything about the United Nations being involved in the Ukraine crisis? I would think that the situation in Ukraine is the number one thing the United Nations was created to prevent, yet on the surface it seems like there's no United

Nations involvement. Good question. So that's mostly because the UN doesn't have a standing army. NATO doesn't either, but it has a command structure that is comprised of all member states and their military personnel. So a lot of the movement you've heard about recently has been related to how that command structure and those alliances work and the way they're attempting to snap into place to defend Ukraine. That being said, you'll be hearing about the UN soon. Biden is reportedly planning a public showdown

with Russian counterparts at the next United Nations Security Council meeting where some dramatic public confrontations have taken place. But, and this is another reason you haven't heard much, Russia has veto power on the Security Council. So there really is very little the U.S. could do via the United Nations to compel Russia into any kind of action. All right, that brings us to our story that matters today.

This one is about U.S. manufacturers and other companies who are using semiconductors and say they are down to less than five days of inventory for key chips. That's according to the U.S. Commerce Department. In 2019, companies were maintaining 40 days of inventory for those chips. The shortage has left Commerce Secretary Gina Raimondo urging Congress to approve $52 billion to boost domestic chip production. These chips, again, are used in everything from automobiles to hospital equipment and refrigerators to video games. The shortage could upend a variety of U.S. industries if it comes. In fact, it's just the kind of thing the U.S. is threatening Russia with in their export ban.

Wall Street Journal has the story in today's newsletter if you want to go check it out. Next up is our numbers section, and these are some numbers related to affirmative action. 73% is the percentage of Americans who say colleges and universities should not consider race or ethnicity when making admissions decisions. 38% is the percentage of Black respondents who said race or ethnicity when making admissions decisions. 38% is the percentage of Black respondents who said race or ethnicity should be a major or minor factor in admissions. 42% is the percentage of Asian respondents who said race or ethnicity should be a major or minor factor in admissions. 71% is the percentage of Black and Latino students at Harvard who come

from high-income backgrounds, according to a researcher at the Century Foundation. 109 is the number of public colleges in the U.S. that self-reported considering race as part of admissions as of 2015. All right, last but not least, our have a nice day section. Nearly one week after announcing a policy to supply free masks to the public, high-quality N95 masks are starting to arrive at pharmacies and grocery stores across the country. The White House's effort to distribute the masks has unfolded with surprising speed, and more than 400 million N95 masks will be distributed to the public. Every person is allowed up to three free masks pending availability,

the Department of Health and Human Services said. Stores like Kroger and public pharmacies like CVS will be distributing the masks. I thought this was a pretty good story. I mean, you mostly hear about when the government's not working, but in this case, it seems like they did something with pretty good efficiency and got everything out and done. And I think that's a good news story. All right, everybody, that is it for today's podcast. As always, if you want to support Tangle, you know what to do. Go to the episode description, give us a five-star rating, subscribe to Tangle at readtangle.com backslash membership. Hope to see you guys again tomorrow.

Hope to see you guys again tomorrow. corn and music for the podcast was produced by diet 75 for more from tangle subscribe to our The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.