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Brian Anderson: Welcome back to 10 Blocks. This is Brian Anderson, the editor of City Journal. This week’s special episode features a conversation with Manhattan Institute senior fellow and director of Constitutional studies Ilya Shapiro; MI book fellow, University of San Diego law professor, and U.S. Commission on Civil Rights member Gail Heriot; and Manhattan Institute adjunct fellow Wai Wah Chin.
They are discussing the Supreme Court’s momentous ruling in Students for Fair Admissions v. Harvard. That the use of race in determining university admissions is unconstitutional. Both Shapiro and Wai Wah have written on this topic for City Journal. You can find those pieces on the website. We hope you enjoy this fascinating discussion.
Ilya Shapiro: Good afternoon. My name is Ilya Shapiro. I’m the director of Constitutional Studies at the Manhattan Institute. I’m delighted to present this very rapid response after decision panel on the ruling in Students for Fair Admissions v. Harvard and UNC. Two cases that have been effectively consolidated, then unconsolidated, then reconsolidated. Just with the note that Justice Jackson, because she was on the board of overseers of Harvard, did not participate in that aspect of the case.
The court ruled, I assume everyone knows who’s tuning in, at least the top-line. By a 6-3 vote, the court ruled that using race in the way that Harvard and UNC have for their admissions decision, basically the way that most selective institutions use race, is unconstitutional, violates the Equal Protection Clause. There are 237 pages of total opinions, of which Chief Justice Roberts’ majority, joined by five other justices, the more conservative ones, is only 40 pages of that. It’s very tight. It’s very clear.
There was some discussion leading up to the outcome, would there be some middle ground? Would there be some wishy-washy sending it back for reconsideration in some way? That is not the case. This is a very tight and clear ruling. It doesn’t mean there’s not going to be follow-up litigation. We’ll get into that. But for example, we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny.
They may never use race as a stereotype or a negative, and at some point they must end. Respondents admission systems, however well-intentioned and implemented in good faith, fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the 14th Amendment. That’s it in a nutshell. In another place he says, “To end racial discrimination, we must end all of it.” That also is a nutshell of this ruling. Very much in line what Roberts has written.
“In other cases, it’s a sordid business, this divvying us up by race. The way to end racial discrimination is to stop discriminating based on race.” Anyway, to hear different perspectives on this, we’re going to hear from Gail Heriot, and Wai Wah Chin and hopefully Ed Bloom, who’s the architect of this litigation—the president of Students for Fair Admission who orchestrated this, brought in the lawyers from Consovoy McCarthy.
He is obviously busy doing media and press conferences, but he will hopefully come in for about five minutes. Gail Heriot, I’ll make these introductions brief, is a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights and a book fellow here at the Manhattan Institute. Looking forward to your book, Gail. Wai Wah Chin is an adjunct fellow at the Manhattan Institute and the founding president of the Chinese American Citizens Alliance of Greater New York.
We have different backgrounds, different perspectives. Gail, I’ll turn it to you now. You have a long background as an academic, as a civil rights commissioner, this is your Super Bowl right here. What is your top-line reaction?
Gail Heriot: Well, first of all, I’m very pleased with the opinion. Last night I was going through in my mind, “Is it possible that we will get a bad opinion? Is it possible we will get a wishy-washy opinion?”
This is not my first rodeo. I was around, I was around actually for Bakke, although I was a law student at the time, and that was back in 1978.
Ilya Shapiro: Let’s back up, let’s back and explain this. For those of us who were not, well, I was barely around in 1978. But just to bring everyone up to speed real quick on the 45-year legal trajectory here.
Gail Heriot: Okay. We start out, the first case that tried to make it in the Supreme Court was a case called DeFunis v. Odegaard. The court ended up dismissing that case, not deciding it because by the time it reached the court, Mr. DeFunis was actually ready to graduate from the school that was at issue. But what was interesting about that case, was that the court’s most liberal justice, Justice William O. Douglas, dissented from the court’s decision not to decide the case.
He was very, very strong saying that race preferences in admissions are wrong, and it doesn’t matter whose ox is being gored. Back in those days, it was very typical for the most liberal justices, most liberal judges on some of the lower courts, to take the position that race preferences in admissions are unconstitutional and wrong. So that was DeFunis. Then along came the case of Allan Bakke versus the Regents of the University of California.
Bakke was a Vietnam veteran, who had worked as a medic during the war. He was not from a wealthy family. His father was a mail carrier. He had been denied entry into the medical school at the University of California at Davis, under circumstances that pointed very, very, very strongly to race. The California Supreme Court had decided that this sort of thing was unconstitutional. It went up then to the United States Supreme Court, and we got a 4-4-1 decision.
Four justices said, “Look, under Title VI of the Civil Rights Act in 1964, which prohibits discrimination on the basis of race and federally funded activities, this is a no-brainer. This is illegal.” Four of them said, “No, no, no. The law may say that, but it doesn’t mean that. What it really means, it is that discrimination against minorities is really bad and this is okay, this is okay.” One justice, the man in the middle, Justice Lewis Powell, he tried to be nuanced.
He rejected most of the arguments for allowing race preferences. He agreed with the justices who opposed race preferences that the University of California at Davis’s program was illegal. But he threw in, “Gosh, if a school is doing this because it wants to capture the benefits of diversity and that will benefit all students at the institution, that may be okay.” I think he thought he was just opening the door ever so slightly to ever so small a preference.
But boom, it didn’t matter that Bakke had won his case. What mattered is that every university in the country immediately moved from calling their programs affirmative action programs that were designed to remedy past discrimination. They switched to the diversity rationale, and the rest is history.
Ilya Shapiro: Twenty-five years later in the Michigan cases in Grutter, the now court majority ratified that one Justice Powell vote. We’ve been proceeding on that basis ever since.
Okay. Today, what did the court do with that Bakke–Grutter history, because it didn’t explicitly overrule them, right?
Gail Heriot: No, no, it said instead that this was always done with the intention that it would be temporary. That the universities always have to comply with strict scrutiny, and that they cannot use preferences to disadvantage students of other races. Therefore, Harvard and UNC had not done what they needed to do to justify this, that the time was up. At this point, the court is proceeding from the notion that race discrimination is improper in admissions policies.
Now, I’m not so sure about this notion of it was always understood you couldn’t disadvantage students of other races, because that’s the way preferences work and they’ve always worked that way. College admissions are a zero-sum game. There are only so many seats. If you’re going to preference somebody in, you’re preferencing somebody out. But the point that this needs to be temporary, I think, is well taken and the court has finally decided that its patience is worn out.
Ilya Shapiro: Okay. Thanks for that. Wai Wah, what is your reaction? Is this what you were expecting? How does this affect the groups that you’ve been leading, that you’ve been in touch with?
Wai Wah Chin: This has been a great, great decision. I think so many things have been validated in this that the sense that we knew as in the groups, I’m talking from the perspective of many, many families that have been affected. Asian Americans who have applied for decades and known that there was a heavier, heavier burden that they had to carry it and that was not right. That was not something that was American. It was not something that they thought was constitutional.
Not that we know all the details of how all the cases worked, but it seemed to fly in the face of what was right. Now, everything has been validated in that sense because the discovery through the case was clear that there was indeed discrimination. It’s as Gail said and as any reasonable person would say, is that when you have a preference for one, you are demeriting, giving some un-preference and taking away from somebody else. We can’t have that with merit in mind.
If we are going to judge a person by their abilities, you have to judge them by their abilities. You can’t judge them by an attribute, and race is an attribute. Race is not an achievement. You do not use that as something that, “Oh, I created this race.” No. You could create work, you can do work, you can accomplish and achieve, but something like race you were born with. This is a validation of that. It does have a lot of implications on other things that we’re doing because it’s not just for the colleges.
It’s obviously something that we see here in the city here in New York, across the country with not just the colleges but also the high schools. We at the Chinese American Citizens Alliance of Greater New York, we do have a lawsuit out there against the Department of Education, for some of the ways that they will still try, the colleges will still try to have racial preferences. We could go into this with again, greater detail a little bit later on the social-economic kinds of ways that you can manipulate, that’s a proxy.
People are going to start looking at proxies and that’s something that we have to be very careful about. But the ruling, I didn’t have a chance either to read the entirety. But the words that were taken out to put in that reasonable person’s understanding of it to say that it’s inescapable, imponderable. Those were some of the words that Roberts used, to say that this assessment that you had used for how you can admit somebody because of race.
I think that those were really striking us home here, to say that we have to think about ways of making sure that people do adhere to the law going forward. Then also not just the words, but we have to think a little bit further too in the spirit of what we’re trying to achieve. Then, of course, to look at the other parts of what we can do in making sure that merit is what is going to determine how kids, individuals. Individuals, not a race gets in, because it’s not a race that’s going in when you accept a kid.
It’s that individual. We have to look at that really smallest, most important, most-difficult-to-defend minority, which is the individual.
Ilya Shapiro: Gail, I interrupted you previously in your reaction. A lot of what Wai Wah was bringing up is existing litigation. The Thomas Jefferson case about admissions as a selective high school, getting rid of merit-based admissions in favor of a lottery to try to racial balance in some way.
I’m sure you mentioned last night you were thinking about different ways to what the court might do. Why don’t you game plan, given this ruling as we’ve described it today, what does this mean for future litigation? What are the next challenges that we’re going to see that may well end up back at the Supreme Court in a few years?
Gail Heriot: Well, there are a lot of them, I fear. I’m celebrating the opinion. I’m hoping that over the 4th of July weekend I can savor Roberts’s opinion, as well as the concurrences by Justice Thomas, Justice Gorsuch, and Justice Kavanaugh. But we do have to look to the future here, and there are some issues that are going to come up. One of the things that’s in Roberts’ opinion, is that it will continue to be legal for a college or university to read through a student’s essay for their application.
If the essay describes how that student has overcome adversity in a way that’s related to their race, one can take that into consideration. I think by the way, that’s right, that Roberts, he’s not just going soft here. I think that is a matter of logic. It is right that if the school can take into consideration how a student applicant has overcome adversity, there’s no reason that overcoming adversity that is in some way related to race, cannot be taken into consideration.
But there’s the potential for schools to give much more emphasis if it’s an underrepresented minority, and to blow off a similar discussion about a different way in which someone has overcome adversity. That’s something that will need to be kept an eye on. You got to remember on this decision, lots of university officials out there are essentially evangelists for the gospel of DEI—diversity, equity, and inclusion. They’re not going to be deterred by a Supreme Court opinion if they don’t want to be, and they’re not going to be.
They’re going to look for ways to get around it. Some of those will be blatantly illegal, I think, and they will lead to litigation. There are also ways that university officials in good faith can try to promote what they regard as a necessary level of diversity through arguments that, I think, will hold some water. In the future we can expect, for example, that colleges and universities will pivot from race-based affirmative action, to class-based affirmative action, and that’s legal.
Indeed, the whole reason we have public universities, is we want to make sure that everyone can benefit from a college education, not just those who can afford private-school tuition. But there are issues here, and the first one that comes to my mind is how do you define socioeconomic status for the purposes of what is going by the name class-based affirmative action? Is it income? Is it wealth? Is it whether your parents went to school? Is it where, the neighborhood that your family happens to reside in? What is it?
Colleges and universities try to use the discretion that they have to engineer a definition of socioeconomic status that will give them the right race composition that they want. It tends to bring in more African Americans and exclude more Asian Americans, let’s say.
Ilya Shapiro: Let’s go precisely more on that. You said, and Chief Justice Roberts towards the end of his opinion says, that they’re not going to allow simply proxies to accomplish the same thing that the regime that they declare unconstitutional today does. In defining socioeconomic, how do you draw the line between something that’s just a proxy, that’s the same thing as having race-based preferences, just a workaround, versus something that would be constitutionally permissible?
Is it simply setting a dollar figure if your family makes under X amount, perhaps weighted by where you live, by purchasing power or something? Is it zip codes? Is it what the end result is if it shows that your seemingly neutral method magically generates the same racial balancing you wanted to achieve otherwise that looks improper? Or how in this future litigation are courts going to deal with what’s okay, in terms of socioeconomic or other types of admissions and this impermissible race-based regime?
Gail Heriot: I think that in theory, the key is intent. Are they aiming at bringing in the racial composition that they want? But how do you track that? I think this is going to be a very interesting issue. I think there will be litigation about it, and I think it will be very fact-based litigation.
There will be an effort to see well, when the university was coming up with this formula for what constitutes socioeconomic status, were they constantly referring to, “Well, what racial composition would that give us?” If that can be documented, it’s going to be a smoking gun and so we have to look into that. This struggle is far from over.
Ilya Shapiro: Wai Wah, in terms of the groups that you’re close to, the Asian-American groups, this litigation was framed through the idea that the racial preferences most severely impact Asian-American applicants. Chief Justice Roberts, by the way, says that some of these categories are nonsensical.
Why group East Asians together with South Asians, together with Southeast Asians, regardless of when they have come to the United States and all of this? Are you saying that only GPA and SAT scores or standardized tests should be considered? Or are there other things that you think can properly be considered without being this impermissible race-based regime?
Wai Wah Chin: This is where it’s very difficult to say in total. Now, we could go and say that Steven Pinker, who was a world-famous professor from Harvard, has said that if you had a class at Harvard that was chosen solely by the SAT, you’d probably have a better class. But they don’t do that. They use the holistic measures and they use other measures that include recommendations, the GPA.
GPA, I don’t like the GPA very much, because very often one school everybody graduates with a 99, but actually they fail on something like the SATs. They come out with a 400 on the SATs, but they’re all passing with 99. You have to have some standardized testing to make sure that there is indeed that correct assessment comparatively about how people are achieving. You do have to give extra weight to that.
Now, how they do it, it’s really like Roberts said, it’s what the university says is trust me. They want to have a certain amount of ability to maneuver, and I grant that. Sometimes one year, they may all need oboe players. They’re going to do an oboe orchestra, but there’s another point to this. It’s a point that we have to have race not be considered, and you should not use some of these other ways of getting the proxy.
If you want to go and say, “Let’s do it by zones.” The usual ways of trying to go around this is say that, “We’re going to do holistic missions. We’re going to do the socioeconomic,” and socioeconomic could be done in different ways. They could go and say that anybody who’s in a single-parent household, we will give an extra 10 points. I think that the social part is the worst thing because economics, you can measure that.
That’s an easy-to-measure thing but for the other ones, you can manipulate it a lot more. Using zones, that’s a proxy very often, as we know. Those are things that we are concerned about because we do have people who go to schools. I’m saying the Asians, for example, in New York, they tend to go to certain schools and then if you’re going to be penalized because you’re in that district. That is not fair.
They should be judging each kid on its own, on that kid’s merit as opposed to saying that, “Well, your parents have some education and so therefore, we are going to deny you an education.” That seems kind of weird. We don’t want to have families where you have generations of, for example, doctors and so they’ve been growing up as or lawyers. If they grow up in that environment, the nature and the nurture.
It’s not surprising that they may want to become doctors and lawyers, and why should we deprive them or society of that? That’s something that the university should grapple with, that this kind of maneuvering is not good. We can look at how from our community, I think, that the first thing is that we say, “We want to have it on a level playing field.” It doesn’t mean that we all come up to the same point.
If we fail by having good, objective standards that we have to meet, that’s all fair and square. But if you put it into a black box and say, “Well, today we’re going to play with personality.” It’s very clear in the discovery that personality was often a character was treated as something that the Asians didn’t have, which was amazing. It’s absolutely astounding.
They actually looked at the numbers too, where they qualified the different races by the academics. The academics were much worse, for example, on the Blacks, but they scored the best much more on the personality. There are things there that you clearly gained. We want to have things that are not as gained, which is why we want to have greater emphasis on good standardized tests.
We don’t want to have standardized tests that are meaningless because with a lot of . . . That’s another thing that we have to watch for, this is not a legal issue now. But in looking at how the tests are constructed, if you dumb down a test so much that everybody gets about the same grade. Like testing one plus one versus calculus, everybody can get a 99 on one plus one.
But when you start having more difficult kinds of topics and areas that have to be tested, that’s where you have the differentiation, and you have to make sure that the tests still work. You can’t take away, as the college board is now doing, they’re taking away questions that they find that one demographic group does not do well in. That does not serve anybody. We have to make sure, and not just I don’t think that this is just an Asian issue.
This is really an issue for all races. That we want to make sure that we maintain the standards at a high level for everybody because that’s how we serve every individual, as well as our community at large.
Ilya Shapiro: I hadn’t heard about the question manipulation on the standardized tests. What more is in the news is that a lot of colleges are dropping standardized tests altogether, so they can have even more of a black box in their admissions decisions. As Gail said, I think that’s going to be litigated in the sense that if that’s a pretext to put in racial preferences through the back door, that’s going to be a problem.
But Wai Wah, I want to highlight or emphasize something you said, because one of the most damning parts of this litigation from the trial court through the appeals, to what was referenced at oral argument and now in the final Supreme Court majority ruling. The way that the manipulation of the personality scores in particular, to downgrade Asians uniformly was striking.
Also, the racial balancing, the fact that despite the shifts in the applicant pool, the percentage by race over time, it’s grown in the last decade or two of Asian American applicants certainly. Yet the overall level has been by race remarkably stable across Ivy League or selective institutions. Started to change a little bit when this litigation was filed curiously enough.
Finally, one other statistic that I think convinced the justices that this was no way to run a popsicle stand was that for example at Harvard, an Asian American applicant in the 99th percentile for GPA and SAT, was as likely to get in as a Black applicant in the 40th percentile of the applicant pool. For whites, I think it was something like 99th percentile was as likely to get in as the 50th percentile of Black applicants.
Those stark contrasts, I think, paid to the notion that regardless of what anyone thinks of Bakke, the use of race is one of many factors for the compelling interest in educational diversity. Grutter in saying that, “Well, temporarily we allow this again as a holistic review.” It seems like that use of race, one among many factors not determinative, clearly was not what was going on and that’s what ultimately undid this regime.
Now, I have had a chance to read barely a little bit of Justice Thomas’s concurrence, which is longer than Roberts’ majority. I think it’s about 60 pages versus the majority’s 40, let alone the dissents. Gail, I don’t know if you’ve gotten to any of those opinions and what you can glean from other justices’ discussion here?
Gail Heriot: Well, I feel like a fraud being on here today, and that many pages cannot be read in the amount of time that we had for this. I skimmed Justice Thomas’s opinion. It looked like it was probably very eloquent. It went on about a number of issues, and I was pleased to see that not only did he cite me, he cited my colleague, Michael Rappaport.
He cited a report by the National Association of Scholars, which I’m on the board of directors for, so that made me very happy. But I can’t really say that I have read his concurrence carefully, or that I have read Justice Gorsuch’s concurrence or Justice Kavanaugh’s. Instead, I was wrestling with my printer, as it was unable to give me everything, but I’m looking forward to savoring those opinions, read them slowly and carefully.
Ilya Shapiro: There’s an interesting interplay, I think, from what I’ve seen and what I’ve seen on Twitter, commenting on the opinions, an interplay between Thomas and Jackson in this dissent. Jackson, of course, not technically participating in the Harvard case, just UNC. But they’re the two black justices on the court feverishly disagreeing with each other on the law, on the facts, on the meaning of race in America. I’ll put out something that just got my attention.
Apparently, Harvard has already sent out a letter leading with the quote, “The colleges may consider an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” And adding, “We will certainly comply with the court’s decision.” I guess Harvard and other similar schools are going to have an essay question asking precisely that.
But let me give you the precise language from John Roberts’s opinion that that’s taken from. “As all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life through discrimination, inspiration or otherwise. But despite the dissent assertion to the contrary, universities may not simply establish through application essays or other means, the regime we hold lawful today.”
A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. A benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal, must be tied to that student’s unique ability to contribute to the university. “In other words,” Roberts says, and this is in the penultimate paragraph to the majority opinion, “The student must be treated based on his or her experiences as an individual, not on the basis of race.”
I think lawyers and judges are going to be struggling over that particular issue, but let’s turn to some questions that we have coming in through viewers of the livestream. The question from YouTube, does this apply or I guess how does this apply to corporate DEI programs or other, anything else beyond college admissions? Legally, it doesn’t apply directly. The issue was in educational admissions, but what effect will this ruling have more broadly?
Gail Heriot: I think that the answer to that is that when you’re dealing with the corporate area, you’re mainly dealing with employment. That means you’re dealing with Title VII. The truth is the law, the Supreme Court precedent on employment, is very different from the Supreme Court precedent on college admissions, and it is not favorable to the employer. Back in 1979, we had an opinion, Weber versus the Steelworkers or Steelworkers versus Weber. I forget what order it was in.
The court in that case, I think very wrongly decided that race preferences are, under certain circumstances legal, but those circumstances were very, very limited. It’s not a diversity rationale, it’s never been a diversity rationale. What was important to the court was that there had been discrimination in the past. A manifest imbalance in the workforce is a term that the court used in one case. It can only be remedied under a very, very limited timeframe.
I really doubt very much that many of the programs that large corporations have adopted in the last few years will survive. I think that would’ve been true even if this decision had not come out the way that it did. The law is quite favorable to employees who have been discriminated against, whether they call them diversity or affirmative action programs. The real bottleneck is that very often individuals who’ve applied for a job and been turned down, don’t know why that is.
The programs are usually fairly opaque. And when they do, they’re often very concerned that if they bring a lawsuit against a potential employer, that they will be pegged as a troublemaker, and they won’t be able to get a job anywhere. Again, I think the real thing that’s going on here, is the Title VII law under Supreme Court precedent is already, I think, in a reasonably good position on this issue.
Ilya Shapiro: Another question here. When Brown v. Board was decided, the desegregation in public schools, of course, the southern states embarked on decades of massive resistance. Of course, it took a while after that 1955 decision by law de jure, for there to be de facto desegregation.
Now, do you expect, the questioner asked, the same from the Harvards of the world, and what can be done about it? Wai Wah, I’ll go to you on this. Certainly, you and the other parents and activist groups that you talk to have thought about this.
As soon as the new policy is put in for the next admissions cycle, are you ready to go with lawsuits or what are you going to be looking for, in terms of resistance to this ruling?
Wai Wah Chin: Well, some of the things that I mentioned already is that they are going to start playing with how they deal with zones looking for the race proxies. There are going to be race proxies. They won’t call it that obviously, but when you find out that they only search in zones and they happen to all be of one race or another, we’re going to avoid these zones and we’re going to take those zones. Or we’re going to take a socioeconomics like anybody who lives in public housing, temporary housing, and those actually are very defining.
We will have to look and do that blocking and tackling now, because it’s no longer the big issue of the grand issues, the grand principles. I think that we can take that as a win. I think that on the principle side, we won. The universities, as Gail said before, there’s a huge, huge machine, an industrial complex in all of these education institutions that are supporting diversity. Now, diversity itself is debunked in this. What is this meaning of diversity, this melanin diversity?
When originally Justice Powell had said that this was before thought diversity, okay? This is not what’s resulting on the campuses, obviously. They’re not looking for thought diversity, but they’re looking for melanin diversity. You, Ilya, pointed out that these categorizations are really nonsensical, because you have Asians being so different, even including different races, as religions and histories, or half of humanity in that. That’s a ridiculous lumping together.
It doesn’t address either what’s happening on the social economic standpoint. This social thing is going to be played with all over. When you look at the problem with pure economic decisions, the universities don’t want to do that. Because they are finding that the blacks that they get, that they want actually, are not going to be the poorer ones. If you look at Harvard, two thirds of their black students are either middle class, or wealthy or foreign.
They’re going to play with all of these, and we’re going to have to continue to monitor it because these are smart people. When you have huge industrial complexes of DEI looking for this mix of their students, you know that they’re not going to give up. When you have the University of Michigan that has an org chart, eight pages org chart for the staff in DEI, that says something. They’ve got 200 people in DEI. They’re not going to give up on it very easily.
That’s what they spend their days doing, trying to figure out different ways of saying, “Shall we try this or shall we try that?” It will be something that we all, as people who are concerned about the rights of an individual to be judged for the individual qualities and abilities, to reject that kind of racial proxies that will be going on.
Gail Heriot: Ilya, I think I can add something to that.
Ilya Shapiro: Sure, sure.
Gail Heriot: That is, with Brown v. the Board of Education, it really took the Civil Rights Act in 1964 to get things really, really strong, where the federal government was simply saying, “We will cut off your federal funding if you don’t comply.” I think we’ve got to look now to some of the various incentives that colleges and universities have, to continue this push for racial preferences. One of them, for example, is all of these schools have to be accredited.
The accreditor these days, unfortunately, they tend to be very ideologically driven. This happened in California after Proposition 209, that accreditors told California schools, who were now being told by the state constitution, they can’t discriminate. It told them by hook or by crook, you’ve got to have a racially diverse class. That created an incentive to do whatever you could to get around the law.
I think what I would like to see is for Congress to take a look at these accreditors and say, “Look, the issue of the racial composition of the student body and of the faculty, that is off the table for you. You cannot demand anything.” I think that would be very helpful. Also, programs like the Hispanic Serving Institutions Program, again, a federal program that shovels money to schools that qualify as Hispanic-serving institutions, which is defined to be essentially you have at least 25 percent students who identify as Hispanic.
That means any school that’s in the general range of being near that, is going to go nuts to make sure they can keep that 25 percent level up. What do they do to do that? They engage in racial preferences, it’s inevitable. I believe that the program is unconstitutional, and I believe that some case coming up soon I hope will establish that.
Ilya Shapiro: Here’s another question. How does the ruling overcome the objection that private institutions should be able to use whatever standards they want? To do otherwise is an inappropriate property rights violation. Well, it’s unclear whether it’s property rights, but in any event, private institutions are not the same as the government. You don’t have the First Amendment or the 14th Amendment, for that matter, directly applying.
The answer is that any school that receives federal funding under Title VI of the Education Act, is subject or has been held to be subject to the same standards in this area and in many others, as public schools. The court did not call for further briefing or separate briefing on the issue of whether the constitutional standard under the 14th Amendment should be different than the statutory standard under Title VI, and did not choose to disturb that principle.
I don’t think the dissent does so either. There’s a concurring opinion by Justice Gorsuch joined by Justice Thomas to make the same point. Or rather he says, “The court holds that the Equal Protection Clause of the 14th Amendment does not tolerate this practice.” This practice being admitting or rejecting applicants based on race. He writes to, “Emphasize that Title VI of the Civil Rights Act of 1964 does not either.”
But Gail, I’m sure you’ve given this some thought, should there be a distinction between the two? In some future case, should private institutions be treated differently? Or is this an opportunity for private institutions to follow Hillsdale College as an example and say, “No, we’re so committed to our race-based regime that we’re just going to reject federal funds to be able to engage in diversity”?
Gail Heriot: If they want to do that, that’s perfectly legal. They can reject the federal funding. I suspect in the future, there probably will be a few more schools like Hillsdale that reject federal funding. Of course, Hillsdale doesn’t reject federal funding because they want to discriminate on the basis of race. They have other things in mind. They believe that there is an overregulation of education, and I think they are definitely right on that.
We could do with a lot less regulation of education, but I don’t see Title VI being limited at any time soon. I think it’s a consensus in this country that race discrimination is wrong, at least among those people who think that discrimination against African Americans is wrong. I think if you look at the polls, most Americans agree that all race discrimination is wrong. I doubt that very many schools are going to just come out and say, “We don’t want federal funding on this basis.”
You can only have so many schools that can survive that way. Running higher education, running a college or university, is very expensive and there’s only so much private funding out there, but I wouldn’t be surprised to find over time a few more schools following the Hillsdale precedent.
Ilya Shapiro: We’ve gotten several more questions pushing again on what kind of proxies or pretext might be used to accomplish the same race balancing goal, well, zip codes or zones as Wai Wah put it. I saw an interesting comment on Twitter that talked about how everyone’s expecting this, but it might be harder to do, easier said than done, in the sense that to coordinate that regime.
Or even what Harvard is saying, it looks like they’re going to push on, just calling for diversity statements in effect. Or how have you been discriminated against statements or however their lawyers massage that, because there’s going to be a paper trail. If you’re going to try to comply with the law, but go right up to the line or evade the law in some way.
That in practice, is going to be very hard to do, because lawsuits are going to come and this stuff is going to come out in discovery. Gail, Wai Wah’s not a lawyer, but Gail is. I don’t know, have you thought about the practical aspects of this future litigation? Or maybe Wai Wah has talked to her lawyers about this, the practical aspects of litigating these future cases?
Gail Heriot: It’s easier, of course, against state universities because you can start out with Freedom of Information Act requests, and learn a lot about the internal workings of a university’s admissions policies. But it’s also possible against private universities, if you have some sense that they are discriminating enough to get your foot in the door. Then you’ve got the discovery process, under which you can get at a lot of information about how they have developed their admissions criteria.
I think it’s true that when schools start developing their criteria with regard to what I’ve been calling class-based affirmative action, there’s going to be a paper trail. It’s going to be clear that they have repeatedly run the numbers to see what result will happen if they adopt a particular definition of socioeconomic status. It will be a complicated case and I think expensive to litigate, but those cases will happen and I would expect them to happen fairly soon.
Wai Wah Chin: Yeah. I agree with Gail here, that it’s not an easy task to go forward to find all of these ways that they hide their racial preference initiatives. They’re going to have different kinds of non-academic personality assessments. The more that you take away from the academic side, you could go and put in any holistic criteria that you would look to. Ultimately, they really should be taking off that box where you check for race, because when you put in that box, you know that it’s going to be used in some way.
In many cases, they have found and there’s been a survey that showed that there was on the white side, a lot of well, cheating on that. Because cheating on a box to put on a race that you have a small amount of Native American blood, it seems like that’s a very common thing. It’s not just Elizabeth Warren. When you have a huge percentage of people being encouraged to falsify actually their own experience, it gets to be a counter to what is best for our entire society, and of course, for the university directly who’s using this assessment.
I think that it’s going to be very difficult, but as they develop the different kinds of ways of sorting, doing the sort for the applicants. I think that we have to just be attuned to that as the different universities say, “Well, all of a sudden they’re all coming.” Well, zone is the easy one. But if there are certain things that we know that are profiling, we know that Asians, for example, will not want to put down that they are a classical musician.
That’s one of the things that they’re told by the counselors, “Don’t put it down. If you play violin or the piano, don’t put that down.” Now if you were a drummer, that’s another matter. Those are things that I think we have to sort out and figure out what patterns there are, because eventually it’s the patterns really show. When the SAT numbers were so astonishingly different between the different races, it’s hard not to feel that kind of injustice that was happening, and we’ll have to see how they continue to do that.
Ilya Shapiro: One interesting thing about this blockbuster ruling, and clearly the biggest case of this term, is that even though Twitter is exploding and legal elites who skewed to the left are upset, it seems like the reaction nationwide is going to be different than last term’s explosive ruling on abortion, the Dobbs case, where that issue is more or less splits the country.
Whereas on affirmative action, setting aside the elites, a comfortable majority of Americans, including every demographic group no matter how you slice it, is against these naked racial preferences for admissions. What does that dynamic, not that the Supreme Court is trying to follow popular opinion?
But what does the atmosphere, the popular opinion, the political atmosphere if you will, into which this ruling comes, how will that affect either future litigation or policies that institutions and American society adopt? Who wants to take a stab at that? Or you can dispute my premise because I was making some assertions there myself.
Wai Wah Chin: I think that you are right that the big majority, it’s not a small like 51 percent, but we’re talking about two thirds of the Americans. When you frame it properly to say that affirmative action is not just something that’s nice and it sounds good, like what it used to be. Affirmative action began as a way of saying that you will not discriminate based on race. That’s what the executive orders were in the 1960s under Kennedy and Johnson.
This was a way of not discriminating against people for race, and it morphed into something that became let’s discriminate based on race. I think that the vast majority would like to see that we could get to that time in our country, that we could really say we shouldn’t be poisoning the well here of trying to sort people by their race, judge them by their race.
The things that have happened with the mismatching, everybody knows the truth, that there are people who are not prepared to get into certain universities. When you find that at MIT, most of the blacks land up in the bottom 10th percent of the class, that’s not good for them. A lot of them, nearly half of them, have to drop out or take extra time to graduate because of that.
This mismatch is very harmful and it has ramifications when people are judged again by their race. When you go in to see a doctor and you say, “Okay. It’s going to be this race or that race, what does it mean?” They should not be judged by that. People should be assured and comfortable knowing that when they see somebody, that they have achieved as everybody else did in a university, in getting into university.
This has ramifications on not just the colleges, as I mentioned. I’ve mentioned also in the medical schools and doctors, and that will have a ripple effect in many, many areas across the country.
Gail Heriot: Ilya, I agree very much that polls indicate that most Americans oppose race preferential admissions. The more clear the question is, the more they’re against it. I don’t mean questions that are rigged to produce a majority in our favor. I mean questions where they lay out very specifically that we’re talking about preferential treatment. If preferential treatment isn’t given, that will mean many fewer underrepresented minorities at top schools.
Yet people uniformly, uniform majorities, are in favor of race-neutral admissions. I think that’s important. That doesn’t mean that there isn’t going to be a big hubbub in the coming weeks, coming months about this decision. There will be a lot of people very, very upset. But I think what legislators and judges, and maybe one day even journalists are coming to understand, is that Twitter is not middle America.
That when it comes to actual opinions, these polls are accurate, as reflected just three years ago with Proposition 16. When the California’s deep blue legislature thought they were going to have an easy time repealing Proposition 209, which here in California, had amended the state constitution to prohibit race preferential admissions policies. The California legislature thought, “Hey, we’re a majority-minority state, we’ll repeal it.”
But when voters actually got to the ballot box, 57 percent of them opposed repealing Prop 209, and that shocked the California legislature. The New York Times reported I think just a week ago, it shocked Democrats everywhere. But that’s what Americans think, and I’m proud of them for that.
Ilya Shapiro: I actually wanted to end on that, Gail. Your experience with the campaign against repealing Prop 209, which California is one of several states that has either by referendum or legislation, sometimes prohibited the use of race in admissions. But what has been California’s experience?
Because now we’re effectively going to have a nationwide experience that California has had for 25 years since Prop 209, a little longer than that. How has California dealt with it? Is it just end runs and workarounds, or are there now best practices for institutions that are acting in good faith from the California experience?
Gail Heriot: Well, it’s both. I cannot say that the University of California has been absolutely scrupulous about adhering to Proposition 209. They have not been. However, it is still true that they end up being bound to some degree by Proposition 209. The proof of that, if you need proof, is the fact that they spent millions, millions to try to repeal Prop 209. They did adopt class-based affirmative action.
But what upset them is that meant it was very difficult for them to admit wealthy African Americans and Latinos. They wanted to do that, and they can’t under Prop 209. They wouldn’t have spent the amount of money that they did. They actually outspent the no on Prop 16 campaign, which I co-chaired, something like 17 to one, and Californians still rejected it. This mattered to them because it does constrain them, but it doesn’t constrain them as much as I wish it did.
Ilya Shapiro: All right. Well, I think it’s time for some concluding thoughts. Wai Wah, it’s now been almost three hours since the opinion came down.
I’m sure the dust has settled in your mind about all of this. At this point, not having fully read the whole thing or processed it, what do you want to leave our viewers with?
Wai Wah Chin: I want to leave our viewers with thanks. I think that I want to thank Students for Fair Admissions. I want to thank Edward Bloom. He couldn’t make it to today with the decision coming out today, but it was so important.
This very hard work to try to make sure that all races would not be judged for the race. This is a critical point for us. The dust hasn’t settled, the battle continues, but this is a major, major victory. I thank them all and you, too.
Ilya Shapiro: Thank you, Wai Wah. Gail, any final words?
Gail Heriot: Well, I agree with Wei Wah that this is extremely encouraging. We’ve still got a number of battles ahead of us, but this is big. It’s very big.
It restores my faith in the judicial process, on this issue at least. I’m feeling good. I am intending to read every word, every footnote of that opinion, and I’m looking forward to it.
Ilya Shapiro: Yeah. Well, as this all works, I have a feeling that I’ll have published a couple of op-eds before finally reading every last word in the opinion. It’s just too much in the way the news cycle works, this is what you do. You grab the top-lines. But I too am encouraged by this, lots of speculation of what’s actually going on at the court. John Roberts’s strategery, although on race issues, he has been anything other than a squish.
I think this is 45 years and a day after Bakke, after Justice Powell. The one vote opened the door to race-based college admissions through the diversity conceit, and now six justices closed it. I filed a brief before I joined MI just over a year ago, I joined with the Hamilton Lincoln Law Institute, against this use of racial preferences supporting Students for Fair Admissions.
I’m gratified and I’m thankful to all of you and MI supporters, that the court has finally recognized that the Constitution prohibits such racial discrimination.