Glenn C. Loury and Randall L. Kennedy discuss affirmative action and the state of race and education in America. Renu Mukherjee moderates their conversation.

Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. This week’s special episode features a discussion between Glenn Loury, a Manhattan Institute Paulson Fellow and the Merton P. Stoltz Professor of Economics at Brown University, and Randall Kennedy, the Michael R. Klein Professor of Law at Harvard University. Glenn and Randall debate the merit of affirmative action. Their conversation, hosted by the College of the Holy Cross, is moderated by Manhattan Institute Paulson Policy Analyst Renu Mukherjee. Glenn and Randall spar over the historical justification for affirmative action, the consequences of the Supreme Court’s Students for Fair Admissions v. Harvard ruling, and the state of race and education in America, themes that Glenn explores more thoroughly in his forthcoming memoir, Late Admissions: Confessions of a Black Conservative, which is due out next May. We hope you enjoy.

Greg Burnep: I’m Greg Burnep from the political science department, and I want to welcome you to our annual Constitution Day event here at Holy Cross Constitution Day, which fell on a Sunday this year and commemorates the signing of the U.S. Constitution on September 17, 1787. And here’s a fun fact about Constitution Day. Holy Cross, like all educational institutions that receive federal money, is actually legally required to hold an educational program related to the Constitution on or around Constitution Day. So Feds, if you’re listening, we are fulfilling our duty here today. This year we are incredibly fortunate to have three distinguished guests. I’ll introduce them in a moment, and they’ll take us the rest of the way. On the subject of affirmative action in higher education, this is a topic that I and several of my colleagues have been eager to discuss on our campus and it has taken on even more significance in the wake of the recent Supreme Court ruling from just a few months ago.

And so I’m really excited about today’s event. Let me briefly introduce the participants. Glenn Loury is the Merton P. Stoltz Professor of the Social Sciences and Professor of Economics at Brown University. Professor Lowry is also a Paulson Fellow at the Manhattan Institute, and he hosts a weekly podcast called The Glenn Show, which I highly recommend. It’s at the top of my podcast feed Professor Loury’s many achievements include being chosen as a distinguished fellow of the American Economics Association. He’s also a fellow of the Econometrics Society and the American Academy of Arts and Sciences, and the author of many articles and books, including the 2002 book The Anatomy of Racial Inequality.

Randall Kennedy is the Michael R. Klein Professor at Harvard Law School. Professor Kennedy has written numerous articles and books, including the 1998 book, Race, Crime, and the Law for which he received the Robert F. Kennedy Book Award. Professor Kennedy served as a law clerk for Supreme Court Justice Thurgood Marshall and is a member of the bar of the District of Columbia and of the Supreme Court of the United States. He is also a member of the American Law Institute, the American Academy of Arts and Sciences, and the American Philosophical Association. Renu Mukherjee is a Paulson Policy Analyst at the Manhattan Institute. She’s also a Ph.D. student at Boston College, where she studied American politics and is currently working on a dissertation about affirmative action. Renu’s work has been published in a variety of places, including the Wall Street Journal and the New York Times, and I have to add, just as I am a proud alum of Holy Cross, so is Renu, so it’s welcome back Renu. Welcome Professors Loury and Kennedy and thank you so much for being here with us today. I’m going to pass it off to Renu now and take it away.

Renu Mukherjee: Great, thank you. So on June 29, just three months ago or so, the Supreme Court in a six–three decision invalidated the use of affirmative action within the context of higher education admissions holding specifically that Harvard College and the University of North Carolina’s race-conscious admissions policies violated the 14th Amendment’s Equal Protection Clause. Now, before getting into a discussion of the decision itself and the broader implications for higher education admissions, I think it’s worth discussing and defining what exactly we mean by affirmative action. The phrase has meant different things at a policy level, at different points in U.S. history, and even the name itself and what it means today is viewed as contentious. So Glenn, I thought I’d begin with you and ask you, what do we mean in 2023 in the context of higher ed by affirmative action? How does it currently work?

Glenn Loury: Well, basically what we mean is extraordinary efforts aimed at increasing the representation of underrepresented groups within the body that’s being selected. Higher education, the student body. So we mean using different criteria of selection conditioned on the identity of the applicants in order to make the about whether or not to admit them.

Renu Mukherjee: Would you agree with that, Randy?

Randall Kennedy: Yeah, I think that’s fair as it goes. I think it’s actually a bit broader. So that was focusing purely on the question of selection. I mean giving a boost to certain people based on their perceived characteristics. I think affirmative action could be viewed a bit broader because for instance, recruitment is making a special effort to recruit people based on their characteristics or financial aid. I think it can be broader, but I embrace the general idea. The general idea is you’re giving a boost to some people as opposed to others based on the characteristics of the people for whom you’re given the boost.

Glenn Loury: You could have weaker or stronger affirmative action in the spirit that Randy has just suggested. You could have using lower test scores, call that a strong version or affirmative action. You could have investing resources in reaching out to communities, encouraging applications and whatnot. Call that weak affirmative action. So you might want to inject the term racial preference to identify those aspects of affirmative action, which I think the court has found to be most objectionable. I don’t know that the decision forecloses a university from sending recruiters into a community or petitioning potential suppliers of students of underrepresented groups if you’ve got a kid who’s worth our consideration, that kind of thing.

Renu Mukherjee: Now, before again getting into the decision itself, I’m just going to prod a little bit more about your points that there’s weak affirmative action in the sense of recruitment efforts and there’s strong affirmative action. If you both could say a little more about the issue in this case of how affirmative action was practiced in the context first of Harvard College’s admissions, similarly, the University of North Carolinas, the specific use of admissions tips or racial preferences in this case.

Randall Kennedy: Well, here we have a bit of, it gets a bit murky and it gets a bit murky because for instance, Glenn used the term racial preference. Undoubtedly the people who oversee affirmative action at my home institution, Harvard University, and the people who oversee affirmative action at the University of North Carolina would reject that. They would say no, they would run away from that. They would say, we don’t engage in any sort of racial preference, and in fact, they probably wouldn’t even use the term action. They would say, we are engaged in a diversity program, and yes, it has a racial component, but it has all sorts of components. It has a gender component, it has a geography component. We reach out to try to get the youngster from, we try to get urban youngsters, we try to get rural youngsters. We are on the lookout for diversity in all of its various forms.

Race is just one of those forms. That’s what the schools would say and is there something to it? Yeah, there’s something to it, but there is a reason why when we’re talking about diversity, when we’re talking about affirmative action, there is a reason why for instance, African-Americans always show up very prominently and the reason why African-Americans to maybe a somewhat lesser extent Latino Americans, but certainly African-Americans, if we’re going to discuss this issue, be very prominent because when you really get down to it, what’s the fight about? The fight is about these institutions. They’re selective institutions. They have scarcity of seats. They’ve got to dole out these scarce, highly coveted seats and want to make sure that people from certain groups show up in these seats and in order to ensure that they show up, they give a boost to various people who have historically been marginalized, people who they think need the boost or else maybe people in that demographic would be maybe entirely absent, or if they weren’t entirely absent, there would be very few.

Glenn Loury: Let me remind everybody here that Students for Fair Admissions, where the plaintiffs in the cases at hand represent Asian aspirants to be admitted to these institutions, they claim that they’re being discriminated against by the efforts that Randy has aptly described, oriented toward increasing the presence of African-Americans.

The data, the background data that you can find, if you look up the briefs from the expert witness representing the students for fair admissions, Peter Arcidiacono and his colleagues, which I signed on to by the way, are unequivocal. If you happen to be an Asian American conditional on the quality of your academic credentials, your probability of being admitted is substantially less an order of magnitude in some instances less than if you’re an African-American. That’s the crux of the matter. There’s injury, there’s no free lunch here. It’s a zero-sum game. There’s injury to people based upon their race. That’s what the court is objecting to.

Randall Kennedy: Let’s get into it. See, I reject that and let me say why I reject that. It seems to me there’s a big difference between somebody saying that they have been disadvantaged by a policy. So in this particular case, you have Asian American plaintiffs. By the way, just drop a little footnote. It is interesting how in the case, as it turns out, the Asian American plaintiffs are reduced to virtual invisibility. There’s not much talk about the Asian American, about Asian Americans actually in the court’s decision a bit more in justice Thomas’s concurrence, but in the court’s decision, it’s striking how little discussion there is of Asian Americans. But in any event, my main point, it’s one thing for a group Asian American students to say that they are disadvantaged by something. I think they are. I’m not going to fight that, and they clearly are disadvantaged. That’s very different than saying that they were discriminated against. I think that’s a very important distinction to be made, and here’s what I mean. Here’s what I mean. So you have a hundred seats, you have a hundred seats, and let’s suppose that the university takes the position that it wants to in allocating these 100 seats, let’s imagine that they say, we want to make sure that some of the seats go to and some of the seats go to groups that have historically been disadvantaged in American life.

It may very well be that Asian-American students are disadvantaged by that. When I think of discriminated against, my view of what we should have in mind is an invidious discrimination. So my last book on this subject was called for discrimination because frankly, discrimination can mean all sorts of different things. What should be verboten, what should be outlawed, which should be prohibited is invidious discrimination in institutions saying, we are going to take this policy because we don’t like them. We want to limit them. We want to marginalize them. Like what was done at my university vis-a-vis, for instance, to Jews in their early 20th century. That’s not what was going on. That’s not what’s going on now with Asian American applicants, Asian-American applicants are being disadvantaged. They are paying a collateral price for an effort to help out African-Americans, Latino-Americans, others, I don’t view that as being discriminated against.

Glenn Loury: We’re quibbling over words. The fact of the matter is I had a 1600 on the SAT combined. I had absolutely brilliant advanced placement track record and whatnot, and I’m Asian. A vetting process comparing me to other students leaves me coming up short because I’m Asian. Now, you may say there’s no invidious motive there. I tell you that if we were to change the circumstances ever so slightly, move to Silicon Valley instead of being at Harvard or UNC, let the number of African-Americans seeking employment there with qualifications be whatever it is and find the proportion of the students, of the individuals hired by those companies who are African-American being an order magnitude less than some other group. We wouldn’t be counting angels on the head of a pen talking about whether or not the motivation for the behavior was invidious. We would be using the empirical facts at hand to establish the reality of the discrimination against those people. I mean, if you don’t like the word discrimination, we don’t have to use it, but the fact is they are being treated differently because of their race. That’s the thing that’s being objected to.

Randall Kennedy: They are being treated differently because of their race. That’s what, no, I think, no, they’re not being treated differently because of their race. The objection is you’re giving a boost to African-Americans of their race, and this boost is collaterally disadvantaging other people, white people, Asian people—

Glenn Loury: Americans, excuse me. It’s a zero-sum situation. If I discriminate in favor of something, Justice Robert says this in his opinion, I’m forced discriminating against the other, or if you want another word, find it, but you had a hundred slots. If you had a laissez-faire, a no-intervention policy, these number of seats going to a group would’ve been whatever, 20 with your policy, it’s 10. They’re disadvantaged to that extent by your policy.

Randall Kennedy: Again, I remember I said—

Glenn Loury: Yes, oh, but you don’t like they are disadvantaged because of their race. When I say because of their race, that’s what you’re objecting to because it’s not that they’re Asian, that they’re being disadvantaged, that they’re not black. Again, I think we’re quibbling.

Randall Kennedy: I mean you call it a quibble. I don’t say it’s a quibble, it’s a distinction. I think it’s an important moral distinction.

Renu Mukherjee: Well, related to what you were, just the context you were providing, Randy, what’s really interesting about this case and specifically the dissents is that since the 1978 case Regents of the University of California v. Bakke, the legal justification that the court has provided for the consideration of race in higher ed admissions has been diversity. But in the two dissenting opinions in this case from Justices Sotomayor and Ketanji Brown Jackson, diversity is not necessarily spoken of as a justification. The justification they defend is really kind of what you’re trying to get at, which is due to the historical abhorrent discrimination against black Americans in the United States, that there ought to be an admissions tip or some boost provided. It’s much more of a compensatory justice sort of framework. So I was wondering if you could elaborate a bit more, and what are your thoughts that diversity has been the going legal rationale, but it seemed to not even find a place in the dissents in this case?

Glenn Loury: I’ll let Randall expound on that, but I just want to say briefly that the court has never endorsed the position. The court Justice Marshall endorsed the position to be sure, but the court has never endorsed the position that racial preferences are allowed as an instrument to redress historical injustice. It’s always been on Justice Powell’s argument that the diversity provided a rationale that was a compelling public interest, which if pursued with narrow instruments would be permissible. So I was left thinking, I didn’t know exactly who justices Sotomayor and Brown Jackson were arguing against because the court’s position has never been the position that they set out in their dissent.

Randall Kennedy: I think you’re right if all you’re concerned about is what they say. The fact of the matter is that there has long been double talk about this subject. So Justice Powell in the famous Bakke decision says, well, he rejects a racial affirmative action, a racial boost for remedial purposes, compensatory justice purposes, integration modeling. He rejects it for a whole host of reasons, but one thing that he says, well, but you can have affirmative action if the purpose is diversity, the idea being if a school says we’ll have a better scholarly/intellectual environment, if we have people from all over the place getting together, we will have a better schooling environment. And Powell says, well, that’s compelling. Now, frankly, that’s what he said and because he had this very powerful position because he was the swing vote once he said that, everybody got a line, and so since he said he talked this diversity talk, everybody else started talking diversity talk.

He said, well, this is what moves me, and so everybody started talking diversity talk. Is that what was really going on? I don’t think so. I don’t think even with him, I don’t think that was what was really going on. I think actually, I think the remedial justification in my view, that was really what was propelling things. They didn’t say it. In fact, they rejected it. Why? Well, I mean according to for a variety of reasons. I think one, they didn’t want to open up the door to this. There were various features of the remedial justification that made them very nervous. One being for instance, when will this end and if you open the door up for remedial justification with respect to college admissions, what else? So I think that there was a feeling that this diversity rationale would be more manageable. Now, I’m going to tell you something. I used to scoff at the diversity rationale. Really, I used to scoff at it because I thought that it was so made up. I don’t think that was what was really going on and I thought it was so vulnerable to attack.

But the people who sort of got behind Powell, the people who sort of beat the drum for diversity, I think over time this slogan, the rationale of diversity became a very serviceable rationale in a way that I don’t think I certainly didn’t see when it first came out. One of the things that’s very serviceable about it is, and I think this will really resonate with you, Glenn, I know with some of your objections, one of the things that I think is attractive about the diversity rationale is that unlike the rationale of compensatory justice, the diversity rationale does not concede that let’s say racial minority candidates or in any sense any weaker than other candidates. In fact, the diversity rationale allows the minority candidate to actually argue we’re better. We’re bringing something special and very important and valuable to the table. I think it’s probably the first time in American in life where there was an official rationale on the part of the government that actually gave a nod, actually gave value to blackness, and I think that that was one of the attractions of the diversity rationale to—

Glenn Loury: You.

Randall Kennedy: I’m sorry.

Glenn Loury: Are you attracted by the idea that African-Americans would be reduced to chits representative of some abstraction of diversity, not seen as persons in themselves, but rather as instruments to some larger kind of moral passion play and that the law would be non-transparent and in fact dishonest in representing its purposes such that the underlying popular support for the policy would wither as people recognize themselves to have been gaslighted by talk about diversity, which is really frankly bullshit.

Randall Kennedy: Couple things I remain, well, let me put my cards on the table and I’d be interested to see exactly where Glenn disagrees with me. Proposition one, I think the Supreme Court of the United States was profoundly wrong in saying that the constitution prohibits public universities and any private university that’s getting federal funds from engaging in any sort of race-conscious selection scheme, and the reason why I think that’s so profoundly wrong is the Supreme Court of the United States has actually put off the table the sort of discussion that we’re having. I mean, you’ve got criticisms and I think very good criticisms of affirmative action, which might prompt a person like me to say, in light of your criticism, you’ve convinced me about this. Maybe we should tighten it up somewhat. Maybe we should not have as broad. Maybe we should do this. Maybe we should do this.

Maybe we should experiment this way. Maybe you should experiment that way. The Supreme Court’s position, given what it decided, no, you can’t do that. There is no debate. There is no debate. This is off the table of regular politics. That is my main objection to what the Supreme Court said. As for affirmative action, I think that affirmative action is like any other public policy. You can have stupid tax policy, you can have stupid affirmative action. At the same time, you can have very useful valuable tax policy and I think that you can have very useful, valuable affirmative action.

Glenn Loury: Yeah, you are reprising the argument from your fine book for discrimination. It’s a policy, not a fundamental constitutional issue, shouldn’t be decided in that way. That sounds a little bit like the argument some of the pro-life people made about the Roe v. Wade decision. You’re taking it out of the purview of politics and discretion and you’re making it into a constitutional right, but I don’t want to get us off on the sidetrack. Where do I come down on that? I’m not a constitutional lawyer. I’ll just stipulate that I read Justice Thomas’s long historical review of the framing of the 14th Amendment to the Constitution and of the concomitant legislation that was going on in the Congress in the period immediately after the Civil War, and he concludes that the amendment means no, it means what? It says no discrimination means no discrimination by race and it’s race that is different from other characteristics and the historical context of that amendment’s ratification. It’s being understood now by the court as saying you can’t discriminate by race.

I think we’re in the 21st century and the Constitution has to be the guiding framework for our law going forward. I think my personal view interpreting the 14th amendment in that way is a good not a bad thing for this dynamic multi-ethnic multiracial society going forward into the 21st century. I think the black–white dichotomy or bilateral opposition is an historical relic. It’s an anachronism. I think the fact that it was Asian students who brought these cases, these are aspiring Americans who are second-, third-generation immigrants from non-European ports of call who are in substantial part the future of this country. I think a legal dispensation in which that kind of identitarian dimension, you talk so casually about students being disadvantaged. These African-American students running around the Ivy League campuses that you and I inhabit are on the whole not injured, disadvantaged subjugated parties. They are substantially from people from the upper-middle class.

They’re people who are very privileged individuals in their own personal biography. So I’m okay with what the court has done here in interpreting the 14th Amendment from my non-lawyerly posture, but I recognize some of the concerns because it doesn’t have to be limited to college admissions. If this idea once you let it out of the barn so to speak, could have very far reaching implications and we’re going to find out what litigants who are activists on the right are going to do with it. But I appreciate, so I’m saying in summary, I appreciate the concern, but I think as a pragmatic matter that the right decision was rendered in this case.

Randall Kennedy: Can I just say on the decision there was that footnote in the court’s opinion, footnote four where it says that this opinion does not touch the service academies, this opinion does not touch the Naval Academy, West Point, Air Force Academy, whatever we’re doing here doesn’t touch the service academies. Well, the Supreme Court of the United States is saying that what Harvard was doing and what the University of North Carolina was doing was a type of unconstitutional discrimination. Justice Thomas was saying that what these universities were doing was tantamount, was morally legally the same as segregation? Are we to take that seriously in light of them saying, but what we’re talking about doesn’t have anything to do with the service academies.

Glenn Loury: Lemme respond to that. Yeah. Here’s how I read it. First, I read Justice Roberts say the practices at issue here do not pass strict scrutiny because they’re making claims about the benefits which are not verifiable and subjective to judicial review. Very abstract. We say we’re going to get more pedagogical benefits out of diversity. Well, where’s the evidence that there’s more pedagogical benefits? We say society will be better off if elite institutions are diverse in their racial composition. Where’s the argument for that? That’s very abstract. That’s free moves down the line. I don’t see how I would as a court ever verify whether that was true or false with respect to the military. There’s an argument, you can reject it, but there’s an argument. The argument is the functioning of the institution depends upon good relations across the lines of hierarchy and authority within the military, it’s the military after all.

We have historical experience—officers tents getting fracked during Vietnam and that kind of thing—with what can happen when we have all white commanders and we have all black and brown infantrymen. We want to avoid that. We think we found a way of doing that. I took that footnote to mean that that practice, unlike the diversity claims of the University of North Carolina and Harvard University is subject to judicial review, is immeasurable and empirically verifiable claim and it’s a claim that we stand behind. That’s what I took them to be saying. The distinction between the military academy rationalization for affirmative action and the university’s rationalization for affirmative action standing on very different empirical ground.

Randall Kennedy: Well, I saw it as a dodge. We’ll soon see, I understand from some of the papers that somebody is now suing West Point. It’ll be interesting to see what the court says. Can I pose a hypo? Let’s imagine that we have a university, public university and it does its best to admit students just like this institution does. Its best to admit students and at the end of the day it’s a racially homogeneous class, an all-white class, it’s public university. It’s an all-white class question. Is that a problem for you?

Glenn Loury: Come on. Your hypothetical is ridiculous, man. It’s not going to be zero. It’s going to be 4 percent instead of 12 percent.

Randall Kennedy: Stick with my hypothetical. There’s a reason for a hypothetical. It’s a bad outcome. Let’s imagine. Let’s imagine it’s zero. If it is zero because the reason why I asked the hypothetical is because if one is a colorblindness person—

Glenn Loury: Which I’m not—

Randall Kennedy: Okay, I understand, right? But Justice Thomas says he is, if you are a true or forget justice, there are people, I mean I have friends who thoroughgoing colorblind. If you are a true colorblind person, the answer to my hypothetical should be no, actually it doesn’t matter.

Glenn Loury: But if it matters, why does matter? The predicate of your hypothetical is that somehow in the application process when race was not an explicit criterion of selection, no African Americans qualify. Now if that’s the case, our problem is not the university. If that’s the case, our problem is the development of the intellectual potential of African Americans. So I would want to address that. I would be very distressed about the outcome here, but it wouldn’t in my mind be a justification for racial discrimination. I know you don’t accept that terminology. A concern about racial inequality is one thing. The practice of racial discrimination is another thing the former does not necessarily, and in the court’s rendering does not in fact justify the latter. We’re talking about the law I’d say to a law professor not about social policy.

Randall Kennedy: Well, the law is social policy, but on this one I think you and I agree actually. I mean it seems to me what your answer to me was, yeah, I’m concerned about it and I would want to know why that’s so and I would want to figure out what can we do to address that situation that doesn’t necessarily mean, however, that we should have racial affirmative action.

My answer and I think there’s a lot to it. I do say however that I would want to push a little bit more as to why someone might feel that there really is a problem and I would want to sort of push that and then I want to push, well, do you think, just suppose someone argued that the problem could be assisted to some degree by some degree of racial affirmative action. So Glenn, do you mind an institution for instance like this one making a special effort to market itself to groups, let’s say black Americans or could be Latino Americans that because of historical circumstances might not know about the opportunity presented by an institution like this?

Glenn Loury: No, I don’t mind that.

Randall Kennedy: Mind that. Okay.

Glenn Loury: But I want to go back to something you said earlier about the diversity rationale, which is finally, and there’s just something that black people can bring to the university that’s a plus.

Randall Kennedy: Wasn’t championing, and I just say I think that’s one of the reasons that people like it.

Glenn Loury: What I want to say is the university is first and foremost a venue for the intellectual achievement, performance, advancement of knowledge, teaching and learning, and that having African-Americans’ presence there be primarily justified in terms of their bringing a little bit of spice, leavening the loaf a little bit, bringing in a little bit of something that’s interesting and whatever is a insult to African-Americans. At the end of the day, and I don’t mean to put words in your mouth in saying that, I think when we see a low presence of black people when judged by the same criteria as others, it’s an alarm being sounded about the inadequate development of the human potential of black people. I think that the use of different standards for selecting black people in virtue of that lack of development is patronizing. I think it is an end run around a difficult historical problem grappling with the consequences of the mistreatment of black people over the ages so as to realize the full human potential of those youngsters. So affirmative action is a distraction in my view from the real problem. It’s way too easy for administrators of elite venues to satisfy their virtue signaling desires by objectifying African-Americans as representative of something which is exactly not what they are mainly there to do, which is advance the frontiers of knowledge, cultivate excellence of the intellectual performance and so forth and so on. It’s a university.

Randall Kennedy: I agree with much of what you said. I strongly reject your disdainful reference to these administrators simply engaged in virtue signaling.

Glenn Loury: A cheap shot.

Randall Kennedy: See. Okay, so I withdraw as say I withdraw the question.

Renu Mukherjee: So you both mentioned footnote four in which this decision does not apply to West Point, the Naval Academy, and as you suggested Randy yesterday, Students for Fair Admissions officially filed a lawsuit against West Point, so it’s very much going to come up again. We also saw that in August Coalition for TJ’s parent organization filed a lawsuit against Fairfax County School Board, Fairfax County Public Schools.

Glenn Loury: That’s Thomas Jefferson High School

Renu Mukherjee: School. Yes. For the use of race or rather the consideration of racial preferences for admissions at TJ, which is a magnet school selective public high school. So my question is what do you both see as the next frontier of this? Do you think that colleges and universities will comply with the decision? How do you, do you think the court will end up taking up the Thomas Jefferson High School case, will perhaps a few years from now be responding to the West Point case?

Glenn Loury: Yeah, Pandora’s box has been opened. Now, again, I’ll defer to the legal expert here, but it does seem to me to be that there’s no obvious stopping point and I think that the year is 2023. We started this business a half century ago. The country is changing its dynamic. I’ve already said that. I won’t repeat myself. The developmental deficits that are reflected in the relatively lower academic performance of African-American aspirants for these selected positions need to be addressed on their own account. I think that there’s going to be resistance. There’re going to be workarounds. It’s not hard to imagine what the workarounds could be. You look for characteristics for selecting students that are in effect proxies for the racial identity of those students, but are not explicitly the racial identity of the students. And you use those characteristics, whether it be geographic location, socioeconomic status, family composition and so forth as indirect instruments for composing your class of the demographic profile that you find most desirable.

And it’s going to go to whether or not the motives, suppose I say that as some states have done, if you finish in the top 10 percent of your high school class, you’re automatically admitted to my university. I don’t care what your SAT score is. Suppose I say you can apply here without even submitting an SAT score and we’ll vet your application on its merits with no prejudice, but if you don’t want to give us a score, we’re not going to require you to have a score. I can do that. It seems to me in a manner that’s consistent with a letter of the law and I think we’re going to see a fair amount of that being done and I think that’s not a good thing. I think it’s not a good thing for the institutions in question because those kinds of interventions changing broadly, the instruments used to assess the fitness of aspirants are going to apply to everybody who seeks admission to the university, not just to members of the targeted population groups. And the consequence will be to change the character of the university’s student body much more broadly in ways that I think are not consistent with the meritocratic imperatives of an elite intellectual undertaking, which is what the university is.

Randall Kennedy: A couple things. One, starting with your last sentence that in a lot of these discussions, sometimes I think we lose sight of the fact that in this particular our subject is dealing with a pretty small, very important but small slice of higher education. I mean most schools actually, the great mass of colleges and universities in the United States are not selective. If you can pay come on in, this school is selective and they’re, I don’t know, I think there are maybe 200 schools in the United States that are selective, but there are a lot of schools that are not. That’s one. Two, I think that it’s noteworthy that so much attention is paid to the fate of the elite schools and the elite people and relatively and too little attention is paid to other folks and this is a point that has been made by people on the left. It’s also a point that’s been made by people on the right:

People have spent a lot of time fighting, fighting, fighting over selection schemes, which will determine whether a student goes to Case Western Reserve Law School or Michigan State Law School versus the University of Michigan Law School. Well, frankly, if you are in a position to go to any of those law schools, you’re doing pretty good. You’ve graduated from college and if you are a plausible candidate to go to any of these select law schools, you did pretty well in college. But we spent a huge amount of time. We are here together talking about the fate of people who actually they’re going to do okay relatively less time on the people, comparatively less time on the people who don’t make it through high school or if they make it through high school, they make it through high school and they’re functionally illiterate.

Glenn Loury: This is something that we can agree about

Randall Kennedy: And I think that’s a very—

Glenn Loury: Important. Affirmative action is about elites. It’s about the racial integration of elites. It’s not egalitarian, not in the fullest sense of the word. It’s about integrating elites. So yeah, we could spend a lot more time talking about K through 12 education. I’m talking about social policy for the disadvantage more broadly and might be advancing the needle on justice more effectively in doing so. I agree.

Randall Kennedy: I mean we’re talking about what we’re talking about. I just wanted to put that out there that there are these other subjects which, and question why is it that oftentimes they don’t seem to get as much attention from people who are in elite institutions. I think there’s a reason for that. We’re in elite institutions, we’re interested in elite institutions, but there is a society out there with other things going on. Can I just say one other thing? There is a justification for affirmative action that has never gotten, I think the attention that it ought to get and that is affirmative action as an insurance policy. So we all know, and I don’t think you, well correct me if I’m wrong, I bet it’s the case that you would agree with me that there is in our society a lot or an appreciable amount, an appreciable amount of racial discrimination that is flying in the face of racial minorities of various sorts.

I’ll just stick to Black Americans for the moment. An invisible win. It’s an invisible win. It’s not like you’re going to mount a lawsuit about it, but it’s there. And one thing that affirmative action does, I think, is signal. It’s a signaling device from the institutions saying we really do mean it. When we say that we want to turn the page on the old regime. And one of the reasons why I think it’s important to actually signal that is because in the living memories, in the living memory, I’m not talking about going long, long, long time ago when people weren’t alive in living memory. There are millions of people alive today who remember a time in the history of the United States when they would’ve loved to have had a single standard. They would’ve loved to have had a situation in which two people or just judge my test score, your test score, who got the best test score until relatively recently, until relatively recently.

That was not the case. And I think that that really sticks in the craw of a lot of black people and it makes a lot of black people, frankly, very distrustful of the institutions. You are willing to trust the institution. I think a lot of people are not willing to trust the institution and the only solace they find is in the bottom line, show me something, I’m not going to trust you when you say that you’re administering a test, the same test, you’re treating everybody the same.

Glenn Loury: Oh, come on Randy, I can’t believe you’re making—

Randall Kennedy: This art.

Glenn Loury: I mean you’re playing right into—

Randall Kennedy: I stand by—

Glenn Loury: It. You’re playing right into—Justice Roberts had his various points that he was ticking off about. What’s the problem here? First of all, can’t subject these claims to a judicial review. Secondly, negative impact on a group because it’s a zero something. Thirdly, stereotyping, you are taking individuals as representative of social aggregates and you’re treating them differently. In virtue of that, you presume that the person who’s, because they’re African-American, is carrying with them this burden of historical memory. You mete out a recompense for that burden at the expense of people who have had nothing to do with the injury and you want to do it forever. That was the fourth of Roberts’s touchstones. There’s no end to what you propose, so I ain’t going with you on that. I mean people need to grow up here. Let me just say this. The year, I’ll repeat myself, is 2023. This stuff has been going on for a half century. The country and the world are moving. They’re moving fast. African-Americans have to man up and woman up to the competition that we are all struggling to confront effectively. Don’t make me and my people into wards of the admissions office of an Ivy League institution. Trust that we will in the fullness of time, whatever the challenge, measure up to the challenge at issue. Special treatment because of what happened a century ago, I reject that.

Randall Kennedy: I’m going to take off on your sentence. People need to grow up. The first federal civil rights statute in the United States was the Civil Rights Act of 1866. The Civil Rights Act of 1866 declared that all persons would have the same right as white persons to enter into contracts, to own property, to testify, to sue, and to be sued. The classic civil rights, that civil rights bill that was passed by the Congress was vetoed by the president of the United States. The president of the United States was Andrew Johnson. What did Andrew Johnson say when he vetoed the Civil Rights Act of 1866? He said, quote—

Glenn Loury: This is very unfair.

Randall Kennedy: This gives discriminating protection to the Negro. We don’t have to stop at 1866. We don’t have to stop at 1866. Take a look at the legislative history of the Civil Rights Act of 1964 in our lifetimes

Glenn Loury: When there was plenty of opposition to it based on a variety of arguments around the, but what does that have to do with the question at hand?

Randall Kennedy: What did Richard Russell say when he fought to reject Title VII of the 1964 Civil Rights Act that prohibits racial discrimination at the workplace? He said his main line of attack, preferential treatment, Sam Irvin preferential treatment. This line of preferential treatment has been my point is this isn’t new, this isn’t new. This is a historical line of attack against any effort to advance the fortunes of African-American.

Glenn Loury: Now, you all in this room know that I do not oppose any effort to advance the fortunes of African American.

Randall Kennedy: Didn’t infuse you of that. Do you disagree with anything I just said?

Glenn Loury: No. You just cited the historical record about certain pieces of legislation. No, I don’t dispute it. I understand that. I’m saying the year is 2023. I say it now for a third time.

What country are we going to have here, and what’s going to be the crucible of law that governs our relationships with one another? These are the questions I’m saying. This is not the answer to the problem. I’m saying A, reducing people to representatives of these racial aggregates is a moral error. I’m saying B, you reverse the relative underdevelopment of a historically subjugated population by preferring them at the points of critical judgment about whether or not they’re fit. Look, if you use different criteria to select students for highly competitive venues of intellectual competition, of intellectual work like an elite university necessarily, you’re going to get different performance from those students on average after they’ve been admitted. This is not equality. I’ll take 6 percent over 12 percent if the 6 percent are actually qualified as much as anybody else in the competitive arena to do the thing that’s most valued in that arena. This is why I so strenuously object to placing the value of African-American presence in these institutions on their representativeness in some kind of diversity argument when in fact, we all know what the raison d’etre of these places is. It’s getting published. It’s writing books, it’s winning prizes. It’s inventing ideas. It’s mastery over canon. It’s excellence. It’s excellence in intellectual work. You create a special dispensation for African-Americans in these venues. You guarantee the patronization of African-Americans. You guarantee the looking the other way at mediocrity. That’s not equality.

Randall Kennedy: One of the things that came out in these cases, certainly one of the things I learned, I mean I’ve been at Harvard University for now 39 years. I certainly learned a lot through the litigation, and some of what I learned was not pretty at all. I mean actually Glenn, I wouldn’t mind actually the sort of university that you just depicted,

Glenn Loury: If one of them actually existed, if—

Randall Kennedy: One of ‘em actually existed, that’s not what was on what?

Glenn Loury: The athletes and the alumni—

Randall Kennedy: Yes, the coach of this team of this sport gets nine and then this person, there was all sorts of stuff going on. Now that does not, we can only take that so far, but it seems to me—

Glenn Loury: No, I got to tell you this in the spirit of comedy, so Jay Caspian King is a writer and he’s been a guest on my podcast and we were talking about this. He said, I got a theory about the university. Here’s what it is. The elite universities are about the rich kids. You got to have some really smart kids around, otherwise it wouldn’t be an elite university. So you bring in summations, you got to have some blacks and browns around. Otherwise it wouldn’t be socially justice oriented, which is part of the brand. So you bring in some blacks, but the real engine that’s driving the show is the rich kids. So I don’t know, do we agree

Randall Kennedy: On that one? A lot of agreement.

Glenn Loury: Wait, will you address yourself to my concern about the humiliation of being included within a cadre of people who are supposed to be about intellectual excellence and you’re hanging on by your fingernails because you came in at the bottom of the distribution of the test score thing, which is a problem that needs to be addressed in and of itself.

Randall Kennedy: Think there’s a lot to that, Glenn. I think that there, and in fact on my side, again, I’m part of the affirmative action camp, but it seems to me a weakness in my camp, I think a weakness that’s sort of impelled by a certain almost feeling of defensiveness and desperation. Again, I said 30 minutes ago, some of the criticisms that you make I think are very strong. And this is one, it’s there does affirmative action, for instance, stigmatize beneficiaries. Yes. Yeah, absolutely. Absolutely. And is that a cost, shorts a cost at the beginning of the year? At the beginning of the year, on the very first day of class, when I go to the front of the class and I teach contracts, I go, hi, my name is Randall Kennedy. This is contracts; we’re off. I know and nobody says anything, but I know good and well is that there’s a certain number of students there who are thinking to themselves, sky is in front of me.

Is he as good as his colleagues? I don’t think that they think that the university would put somebody unqualified in front of them, but I do think that they would are asking a question. Okay, fine qualified, I mean qualified as a minimal thing. Is this person in front of me as strong as his peers? And if he’s not, I’m mad about it. I have no, I’m sure that that’s there. Is that a cost? Yeah, that’s a cost. Sure, it’s a cost. But what I would say to you, Glenn is, and that’s not the only one. There are other costs that you’ve written about and that are present. Question for me is it’s a cost. I think we should be concerned about it. I think that we should, when we are designing affirmative action plans should have that in mind. So question, should we have affirmative action at the professorial stage as opposed to affirmative action for middle schoolers, high schoolers, college?

I mean, is there an argument that there should be a change as you sort of go up the ladder? Seems to me that’s a very good thing to talk about. And maybe the answer to that is yes, but you also have to ask the question, what about the benefits? Has the United States of America in the past 50 years been benefited by affirmative action? I’ve already conceded, yes, there are costs. I would also assert that yes, it has been benefited and we’ve seen this. We’ve seen the benefits not only in the racial area, we’ve seen it in other areas. And just one last thing and then I’ll be quiet for a minute.

In the affirmative action issue, it seems to me that people will remember, and here I’m going to go out of the race issue for a minute. There was a person who was running for the president who said the following, if you elect me President of the United States, I will promise you that if I get to put somebody in the Supreme Court of the United States, it will be a woman and it’ll be the first woman on the Supreme Court of the United States. Ronald Reagan. Ronald Reagan. That’s right. Question. When Sandra Day O’Connor was put on the Supreme Court of the United States, could Richard Posner and various other male juries say that they were discriminated against? Okay,

Glenn Loury: Randy, I think we got the point, and I don’t disagree with the spirit of your comment, but I want to just shift ground a little bit. The question was, has affirmative action been all that beneficial to the United States? I could answer that in your affirmatively. I could without a difficulty say on the whole, go back 50 years, ask what the country would be like with and without taking benefits and costs all into account on net.

Randall Kennedy: Sure.

Glenn Loury: We needed to open things up. The 1960s and seventies, a very critical historical moment. A lot of elite institutions, Lily White, when the late William Bowen, former president of Princeton University and former president of the Andrew W. Mellon Foundation, undertook a massive project at his foundation to try to justify affirmative action. As we were headed toward those landmark cases and the University Michigan cases, I was a part of that effort. My research center at Boston University got small grants from the Mellon Foundation to do research. I wrote the forward for the paperback edition of their book, The Shape of the River, in which in effect, the argument was we’re running Princeton and Derek Bok, former president of Harvard, they co-authored the book. We’re running elite institutions. We’re shaping the leaders of this country going forward. We don’t have enough black and brown leaders in this country. We want to contribute to solving that problem. We’re going to do affirmative action. Yes, that’s going to mean racial preferences to some degree, but let me look at the data and tell you what the consequences of having done. So on the whole, it’s been positive, and I endorse that argument.

That was a long time ago. I’m asking myself now the question, even if I can say retrospectively that on net this has been a positive for the country, is this the way we want to institutionalize doing business going forward indefinitely? And there I’m coming up with a negative there. I’m saying we have to wean ourselves there. I’m thinking this is a state of exception that we’ve entered into with affirmative action from what otherwise would be the prudent and morally justifiable way of conducting our affairs with one another. So we’ve entered into a state of exception and then necessarily the question is, how do we get out of it? And there’s no way out, except out. I don’t want to quote Roberts. I know you know what he said. Do you want to stop discriminating? Then stop.

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