The New Yorker Radio Hour - What if the Supreme Court Ends Affirmative Action?

Episode Date: March 17, 2023

In Students for Fair Admissions v. Harvard, the Supreme Court’s conservative majority appears likely to strike down affirmative action, in a decision expected by this summer. The practice of considering race as a tool to counteract discrimination has been in place at many colleges and universities, and in some workplaces, since the civil-rights era. But a long-running legal campaign has threatened the practice for decades. David Remnick talks with two academics who have had a front-row seat in this fight. Ruth Simmons tells him, “For me, it’s quite simply the question of what will become of us as a nation if we go into our separate enclaves without the opportunity to interact and to learn from each other.” Simmons was the Ivy League’s first Black president, and more recently led Prairie View A. & M., in Texas. Lee Bollinger, while leading the University of Michigan, was the defendant in Grutter v. Bollinger, a landmark case twenty years ago in which the Supreme Court upheld affirmative action. The Court’s current conservative majority is likely to overturn that precedent. Remnick also speaks with Femi Ogundele, the dean of undergraduate admissions at the University of California,Berkeley. Consideration of race in admissions at California state schools has been banned for nearly thirty years. “A lot of us are being kind of tapped on the shoulder and asked, ‘How are you doing what you’re doing in this new reality?’ ” he says. “I want to be very clear: I do not think there is any race-neutral alternative to creating diversity on a college campus,” Ogundele tells Remnick. “However, I do think we can do better than what we’ve done.” New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. We'll hear argument next in case 2011-99, students for fair admissions versus the president and fellows of Harvard College. Sometime soon, in the next few months, the Supreme Court is expected to hand down a landmark ruling on the future of affirmative action. Oral arguments took place last October. One case, an advocacy group has sued Harvard University saying that any consideration of race violates part of the 1964 Civil Rights Act. Here's the lead attorney for Harvard being questioned by Chief Justice Roberts. There is no doubt that, as the testimony showed, that for applicants

who are essentially so strong on multiple dimensions that they are sort of on the bubble, that they might bear a real candidate for admission, being African-American or being Hispanic, or in some instances being Asian-American, can provide one of many, many tips that will put you in. People say that, yes, but you will have to concede that if it provides one of many, then in some cases it will be determined. I do. I do concede that. Okay, so we're talking about race as a determining factor in admission to Harvard. 20 years ago, the Supreme Court upheld affirmative action. The decision was written by Sandra Day O'Connor, a Republican appointee.

Now in 2023, the conservative majority in the court is likely to reverse precedent, as it did in Roe v. Wade and end the practice of affirmative action. Race for some highly qualified applicants can be the determinant factor just as being a, you know, an oboe player in a year in which the Harvard Bradcliffe Orchestra needs an oboe player will be the tip. We did not fight a civil war about obo players. We did fight a civil war to eliminate racial discrimination, and that's why it's a matter of considerable concern. There are actually two cases being decided,

and they may have a profound impact on generations of students. So I'm going to talk today with two long-serving university presidents who have had front row seats to this battle. But first, I want to talk with someone who's already been dealing with this situation in an admissions office. Femi Ogendelli is Dean of Undergraduate Admissions at the University of California at Berkeley.

In California, public colleges ended any consideration of race a full generation ago. So when we are reviewing applications at the University of California at all of the schools, we are unable to see an applicant race or gender in the actual applicant file. In fact, California, ostensibly liberal California, was the first state to ban affirmative action.

That happened in 1996 with a ballot initiative known as Proposition 209. And shortly after that, the percentage of black and Latino students admitted to Berkeley Phil sharply. Now, how did you react when you first got the news that this would be the case in your life going forward? work. Yeah, I'll be honest with you. So my entire background has been doing multicultural recruitment work at a variety of institutions. And prior to my time at Cal, I was at Stanford University here in California and in the Bay Area. And I had not heard of Prop 209 when I was at Stanford. And that's because Stanford and the private institutions in California are not required to adhere to Prop 209. And so it wasn't until I started interviewing and doing my research on Cal prior to taking the job that I understood what Prop 209 was. And more importantly, how it was impacting the university system. And so I took a look at some of the

research and some of the reports that really showed that despite millions of dollars of investment that has come from the state and really strong efforts across the institutions that ever since Prop 209 happened, we saw a significant decline in black and Latinx students being admitted to the UCs, and there hasn't really been a strong rebound in that. Although there's been tons of effort, and there's been some gains. They have not rebounded to the pre-Prop 209 numbers. It is very likely, considering the composition of the present Supreme Court, that affirmative action is going to be eliminated at colleges and universities across the nation.

So are you starting to hear from administrators at other schools outside of California looking to glean some modus operandi from your experience? Yes, absolutely. And I don't think it's just the University of California, right? There's about eight states or so across the country right now that have affirmative action bands. And I think a lot of us are being kind of tapped on the shoulder and ask, like, how are you doing what you're doing in this new kind of reality? And I just want to be very clear. I do not think that there is any race-neutral alternative to creating diversity on a college campus without being able to

consider race. However, I do think that we can do better than what we've done. And so what I mean by that is really just recognizing that the K-12 experience, and I have traveled all across the state, all across the country, all across the world recruiting students, the K-12 experience is not standard. There are varying opportunities out there, and there are varying ways in which students are able to even participate in those opportunities, oftentimes delineated by socioeconomic status. And so what that means for us is that when we start to consider applicants here at our institution, we have to take that context into consideration. And then when you seek broad geographic diversity, I think what you'll find is that it does allow for a much more diverse and yet equally talented group of students to emerge in your pool than before. Now, if I would have walked onto the Berkeley campus today, and if I had walked on the

Berkeley campus a few years ago, would it be noticeably different? I know that the last couple of years we have been able to have some of the more diverse classes that we've had since Prop 209, where I will tell you in particular, I think that Prop 209, and one of the things that I'm still working through is I think that it particularly hurts black students and black applicants. I'm not exactly sure as to why, but I can tell you that with all of the efforts that we've created to diversify this campus, I've seen really strong gains in pretty much every other ethnic category except for the black number. And that is something that I'm still kind of working my way through to try to understand how and why that is the case. What other factors can you take into consideration? Are you still using the ACT and the SAT?

So no. So the UC, right before the pandemic, we went test-free. And so we are not considering the SAT or the ACT. We do still take a look at AP coursework. And that is a sign of rigor. Same thing with IB, the International Baccalaureate coursework. But I also recognize that even the AP exams, there's a financial barrier. Not everybody who takes an AP class is even able to take the AP exam. The other piece that we did add to our evaluation is that came from college. board was the landscape data. And landscape is a tool that really allows you to assess context of applicants. It tells you everything around both the neighborhood that students might be coming from, percentage of free or reduced price lunch, percentage of first generation students that might be in a high school and other really important pieces of information. So crudely put, and forgive me for this, but crudely put, in other words, you're able to guess to some extent what you before had more solidly

as information about people's backgrounds. In a perfect world, I think that you should be able to consider both race and use something like landscape data. Right. Because race is no longer a proxy the way that it used to be. I think that it's important for folks to know

that black does not mean first-gen, rural does not mean poor, right? Let's not mince words. It sounds to me like your job in doing that, as you believe it is proper to do, got a hell of a lot harder with the elimination of affirmative action. A hell of a lot harder, because as you can see, the institutions still value diversity as a part of academic excellence, right? And so when you take two, I think, particularly strong identifiers around diversity away, it really does put a lot of weight into us understanding these contexts to try to put. together a class that is more representative of this broader term diversity. So one critique of affirmative action is that it disproportionately helps students of color

from privileged backgrounds, middle, upper, middle, upper class, rather than those from poor or underprivileged communities. In your experience, at other schools, and it's a wide experience, have you found that to be the case? No, actually, I have not. And again, affirmative action to me gives you license to consider things. It does not mean that you you advantage a group, right? That to me is where the conversation around affirmative action oftentimes gets reduced to. And I can tell you that the best institutions that can consider affirmative action, some of the most selective institutions, like my time at Stanford, when we talked around students, we didn't just talk about their race, we talked about their socioeconomic status, we talked about what their high school

offered. We talked about, did a student go above and beyond what their high school offered and what does that look like in certain contexts? We also talked about what does it mean to be the one and the only in an environment. And whether that is a woman in STEM, whether that is an out queer student in the Bible belt, whether that is a student in an urban environment, like all of those different experiences, again, when we talk about crafting and creating community, we're important to us. And those things are still important. They're still important to me. And so affirmative action, I think, is the beginning of the conversation.

And what I'm struck by is how it's become a larger conversation rather than getting people to understand what it gives license to do versus what it, like, quote unquote, makes people do or requires people to do. Femi Okendeli is Dean of Undergraduate Admission at UC Berkeley. He began there in 2019. What role do you think race or ethnicity should play in the college admission process? Well, I mean, obviously it's a complicated question. None.

In my opinion, your race or your ethnicity or whatever, you know, whatever other factors like your sex, shouldn't play any role. If he passes the tests, I don't care who you are. I don't care what you represent. Like, you're entitled to study here. I'm a Chinese American, and I think it's kind of no knowledge that race-aware admissions and affirmative action is sort of disadvantaged, not just me, but a lot of other Asians as well. I think that affirmative action is like a band-aid in the sense that if you wanted a more systemic change to society,

I think that there are more effective ways. I believe that my race played a huge role in my success in high school, and I think that it's only fair if my race plays a role into the way that my application is viewed. My community was majority Hispanic, so I saw a lot of kids who were just born into families that just had less, had less privilege, had less knowledge of the system, but who benefited from the system and now are doing beautiful things. As a person who is actively negatively affected by affirmative action, I know I should support affirmative action, but I don't. Student voices from the Columbia and Cornell University campuses in New York. We'll continue looking at affirmative action and what happens if it ends in college admissions in a moment. This is the New Yorker Radio Hour.

This is the New Yorker Radio Hour. I'm David Remnick. We're looking today at affirmative action. And what may come after affirmative action if a major Supreme Court decision ends the practice. To help think through what's at stake here, I'm joined by two very prominent university leaders. Ruth Simmons testified in the Supreme Court case, Students for Fair Admissions, versus Harvard, and she's the former president of Brown University and recently stepped down from Prairie View A&M in Texas. Lee Bollinger, when he was president of the University of Michigan, was the defendant

in an earlier Supreme Court case that upheld affirmative action in 2003, and he's been the president of Columbia University for many years. You both have led universities and have been attached to this subject for many years. it means an enormous amount to you both, both personally and professionally. What is at stake now that we are facing the very, very possible elimination of affirmative action in the Supreme Court? Well, as I said in my testimony in the Harvard case, for me, it's quite simply the question of what will become of us as a nation if we go into our separate enclaves without the opportunity to interact and to learn from each other, what will we become, what will become of us, frankly. We're seeing a lot of behavior play out today, as it has in the

past, with regard to individuals pursuing violence against individuals that they regard perhaps as threats, perhaps as just being too different. perhaps as being not part of the country that they want to be a part of. But the point is that affirmative action and diversity helps us achieve the goal of maintaining a common framework for a very diverse nation, allowing us to confer, to elect representatives, to make major decisions in the direction of the country. And honestly, I should say also to live happy lives. It's very important to understand, I think, how the policies came into effect and how they have been opposed over many decades.

I mean, what we're seeing today is in a very important sense, what we've seen every decade since affirmative action began. And selective universities, colleges, all across the United States, looked at the movements of civil rights and the Brown versus Board of Education, effort to desegregate schools and the Civil Rights Act and the Voting Rights Act and all the efforts of that period, which in many ways was a high. point in American history. And universities said, we cannot continue to have student bodies that are all white and all male. And we must take steps to rectify this and do our part, which is a limited part of the whole national effort to try to overcome the legacy of invidious discrimination, especially against African Americans. That's the beginning. I would say that, you know, there are a lot of very bad motives behind the opposition to affirmative action as Ruth has articulated. There's also a completely legitimate and reasonable argument.

Well, let's do both of those. What are the various motivations behind the argument for case behind opposing affirmative action and bringing it down? Yeah. So I think there is, obviously, in some parts of the society, outright racist motivation to try to reject the whole history since Brown versus Board of Education. There's also misunderstanding. You know, the sense that I lose if I'm in a world in which other people's race, ethnicity can be taken into account. And the problem there is that we take into account lots of things. We take into account geographic diversity.

We want students from different parts of the United States. That's always been true in order to try to build a national polity. Legacies, the size of people's bank accounts, how good they are at football? Yeah, there are many, many things that are taken into account. So singling out this one is, is. problematic. However, when you have a serious, reasonable discussion about affirmative action, you hear arguments like the following. This is the most powerful, in my view. We have spent a half century, a century, a civil war before that, trying to get the society to realize that

taking into account race for bad motivation, for bad purposes, is something we must struggle to stop and overcome. And you are asking us for an exception to that. You're saying consideration of race for good purposes should be allowed. So if we really want a colorblind society, we should just say you can never in public policy take race into account and not even for good purposes. And Ruth Simmons, how would you counter that argument? Well, I would counter it with the fact that we have a lived history that proves that without some extraordinary measure

like affirmative action, we will continue on a path to being an unequal society where people are treated not on the basis of their worth or their merit, but on the basis of what the color of their skin is, or what their gender is, or what their preference is, and so forth, that that's the kind of society we have shown ourselves to be in the past. And there is no overwhelming evidence that I see that we're on a path to be different from what we've done.

in the past. In fact, in many ways, some place like, you know, liberal New York City has as segregated a school system de facto as any in the nation. You do hear, and just I present this argument, I don't endorse it, that, well, wait a minute, this has been going on for decades, so-called racial preferences in higher education admissions. When does it end? Should it end? Is this open-ended, Ruth Simmons? Well, I'm sure I would say we don't know. There are a lot of things that we do with uncertainty about what the endgame will actually be. But I would make the argument that by continuing to do this work and to show that we endorse policies of trying to eliminate inequities, that we are speaking to generations being born

who otherwise would feel inclined to give up on the country that they're from. Now, since I lived that reality, it was born at a time when the public policy actually was quite the opposite. I was born in rural East Texas. My parents were sharecroppers initially and later moved to the city. as a child, I understood that I had no future, that I had no opportunity to be respected for what I was and for what I could achieve. I understood that. It was spoken directly to me on a daily basis. And yet, by availing myself of education, I was able to escape hating my own country. And that's what I want children.

being born to be able to do, to see that somebody is capable of shaping policies to prevent these pernicious practices from occurring. And so I worry less about the people who are angry that their child didn't get into Colombia. I worry less about the person who's angry because they thought they should be making $50,000 a year more. I'm worried about the children who are coming into the world and what they see in terms of these policies. That's what I worry about. Prairie View A&M is a historically black university.

What impact will dismantling affirmative action have on HBCUs, Ruth Simmons? Where will this take the future? Well, many people believe that it will cause many African Americans, of course, to enroll in HBCUs. But I would say that isn't the only thing that might impel them to do so. The climate itself is frightening to young people. And after every incident in which African Americans and minorities are targeted, especially in violent ways, we see consequences in the enrollment of our institutions. It is a frightening time for many young people who did not go through the turbulent civil rights era. and therefore some find themselves at a loss to understand why people hate them

and why people would deny them basic rights. So many people believe, and frankly some anticipate with glee that this will cause students to go into HBCUs and other minority serving institutions in higher proportion. I'm less enthusiastic about that outcome, I have to tell you, because you cannot believe that this country needs to learn how to interact across many forms of difference to survive and thrive and think it's a good idea for every black person to be in a black institution. It just isn't. So I think we should be very cautious in celebrating the fact that African Americans might flee to our institutions. I think we ought to uphold the standards that we held so dear during the period of integration and insist that we have to be as true to those standards as anybody else that we castigate for not being. true to them. You sometimes hear the argument that what's most important is economics, not race.

And the best thing to do for any kind of affirmative action would be to affirmatively focus on admissions for people who did not have economic opportunity above all. How do you answer that? Maybe Lee Bollinger? So the argument is, as you put it, you can still have racial and ethnic diversity. but consider race, I'm consider socioeconomic status, and then you won't be having to focus on race, ethnicity, and you'll be able to have both things. You'll do good for people who are facing an unequal world in socioeconomic ways, and you will have racial and ethnic diversity.

And there has been a lot of scholarship on this, and a lot of, again, actual examples. And the truth is, if you cannot consider race and all you know is the socioeconomic standing of the applicant, you are much more likely to admit another white student. That's just the reality. Ruth Simmons? How could one quarrel with considering economic circumstances to give a leg up to candidates? Who would say that isn't something that would be admirable to do? there's just one problem with that, and that is we still are not answering the question of what we do about a society that for all of its advantages is still deeply divided. What are we thinking in this country if we believe that we really should ignore every particularity of an individual when we're making these decisions?

Instead, we should be bringing people together to help them understand how to form a nation that truly can live up to its ideals. How will we do that if we don't consider all of these attributes? Lee Bollinger, Ruth Simmons, thank you so much. Thank you. Thanks, David. The Supreme Court's decision in students for fair admission versus Harvard is expected sometime this spring. That's our program for today. Thanks for listening.

See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbes of Tune Arts with additional music by Alexis Quadrato and Louis Mitchell. This episode was produced by Max Walton, Breda Green, Adam Howard, Calla Leia, David Krasnow, Jeffrey Masters, Louis Mitchell, and In Gofen in Putabuele, with guidance from Emily Boutin and assistance from Harrison Keithline and Meher Batia.

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