Abbey Speaker Series: The Future of Affirmative Action

good afternoon everyone it is a wonderful afternoon isn't it really bad weather uh I'm Jim White dean of the College of Arts and Sciences here at the University of North Carolina Chapel Hill and when I I would like to welcome you to our Abbey speaker series event the future of affirmative action in addition to those here with us in the Carolina Union Auditorium welcome to those who are tuning in Via Zoom for this hybrid event this is our first Abbey speaker series event of the spring semester The Abbey speaker series is hosted by unc's program for public discourse which seeks to build our students capacities for debate and deliberation and to foster a culture of constructive dialogue about issues of national National importance at Carolina and Beyond four times each year the Abbey speaker series brings together experts from a variety of fields and disciplines to Showcase productive Dialogue on timely issues across a range of perspectives previous talks have explored such topics as social media and democracy and Bridging the rural urban divide on behalf of the university and the college I would like to thank the Abbey family for helping us to bring such important programming to campus we are honored that Doug and Nancy Abby are here with us this afternoon thank you today's event is especially timely as the U.S Supreme Court weighs the precedent that permits universities and colleges to consider race as one factor among many in admissions decisions our Campus Community is fortunate to have this opportunity to hear from our panel of experts about the Court's deliberations and the implications for U.S higher education community this is where I go with my radio voice and I speak real fast finally since our University is a defendant in one of the pending cases before the court it is important for you to know the panelists thoughts and opinions are their own they do not reflect UNC Chapel Hills legal or institutional position in the case I'm also tempted to go off scripture and I'll do it point out that I watch too many of those TV commercials about the health things and the after effects and all the side effects you have all the side one of the side effects of listening to this talk today is going to be that your mind is going to get opened up a little bit one of the one of the side effects of this is hopefully going to be that you're going to have some better knowledge about a difficult topic and you're going to hear experts talk in a way that is constructive collaborative and hopefully leads you to a different place than you're in now finally now I'll turn it over to associate professor of History Molly Worthen who is serving as the interim director for the program of public discourse this year and she will tell us a little more about the panel welcome and thank you [Applause] [Music] thank you Jim thank you all for being here I'm Molly Worthen I'm the acting faculty director this year for the program for public discourse let me join Jim and adding my thanks to Nancy and Doug Abby for not only making this all possible but being here in person and I'd also like to thank our co-sponsor the General Alumni Association all of our panelists as well as our moderator have been involved in public discussions and legal debates about affirmative action and education policy for a very long time let me quickly introduce them to you and I'll start at my far right Glenn C Lowry is the Merton P Stoltz professor of Economics at Brown University Glenn is not only a widely published economic theorist but he's also one of America's leading thinkers in writing on racial inequality somehow he also finds time to host a podcast called The Glenn show which explores race inequality and economics in the U.S and throughout the world John McWhorter teaches Linguistics western civilization and music history at Columbia University as a linguist he specializes in language change and language contact he has also written extensively on issues related to Linguistics race higher education and other topics in a variety of media Outlets but you may know his byline mostly from his role as a contributing writer at the New York Times Rachel F Moran is distinguished and Chancellor's professor of law at UC Irvine she has published widely on issues of educational Equity Racial equality and Latino law and policy she is past president of the association of American law schools and Rachel was also the American Bar foundation's inaugural necom fellows research chair in diversity and law and our moderator Ted M Shaw is the Julius L Chambers distinguished professor of law and the director of the center for civil rights here at Carolina his research areas include the 14th Amendment affirmative action and fair housing Ted was on the staff of the NAACP legal defense fund for 26 years and he eventually became director of the legal defense funds education docket and later its fifth director Council we are really proud to have such a celebrated legal expert here at UNC and we have told Ted that he should feel free to weigh in with his own opinions and ask tough questions and do whatever is necessary to help us really bring out the central issues in in this debate and model effective public discourse which is what our program always aims to do thank you all for being with us today and now I will turn it over to Ted [Applause] thank you I I got a one of these watches Apple watches a few months ago you're probably asking why I'm mentioning that because periodically is telling me stand up and so uh I need to stand up and keep moving and so I'm electing to stand up here uh Molly thank you for that introduction I thank the program for public discourse for an opportunity for us to engage in discourse I want to say a word in addition to the introductions that have been done already I haven't seen Glenn Lowry now Glenn it's been a number of years decades Ted yeah but we we used to uh see each other more often and we've debated each other we've engaged in dialogue and conversation we've mixed it up at times and also at times found things that we had some common ground on and I'm very happy to see him here in the welcome here I'm here to Chapel Hill um John McWhorter is one of our nation's public institutions in a way he's a public uh yeah I see that look on your face John but you are a public intellectual and you serve not only academic purposes but also I believe the discourse in our country I agree with great interest uh your uh your articles and Publications you challenge us all I certainly think you challenge uh me although you don't know it and I'm very very happy to have you here and finally Rachel Moran at Moran I've known for many years also and we have at times worked together on common cause and I'm really happy to have her here from uh the places where she usually spends her time mostly on the uh on the other coast uh so Rachel welcome to Chapel Hill okay uh I wanted to um and thank you uh also Dean white um and so I want to mention that there is going to be a question and answer period um and uh we will uh devote the last half an hour or so uh two questions and answers you all know the the the drill with question and answers it's not an opportunity for people to get up and speechify uh you know questions uh that should uh have answers that are given by the panelists so I look forward to that because uh audience participation uh adds real value to these kinds of events um and um microphones are going to be live throughout uh this and that's mostly a warning as you all know hot mics and uh you know uh people sometimes fall a foul of uh hot mic warnings uh but we look forward to that so um uh I want to um by way of uh starting us off uh ask a question of each of the panelists that um that may seem kind of odd uh you know you all uh you all have other things on your agenda and your plates respectively and yet you find it important enough to be here um and I want you to say a word uh given the moment that we're in the time you all know what I'm talking about the two cases that are pending in the Supreme Court uh most people are thinking that these cases would tend to change in jurisfoodence and public discourse uh why are you here so Glenn can we start with you couldn't have a more important question I've been studying race and inequality issues let me just interrupt can you all hear your Mike close enough yeah I know it's hot it's on okay just a little closer adjust the volume okay I've been studying these questions since I was in graduate school that was a half century ago uh the country's gone through many changes and evolutions and so on uh it was Sandra Day O'Connor was it not in 2002 if I get that correct who was it three said uh I hope we won't be in this business 25 years from now we're pretty close to 25 years and we're still in this business and you know the Supreme Court's composition much better than I do Ted stuff is going to hit the fan uh it's worth talking about so I am here to talk about it John what about you um I'm here because I honestly consider the way we're trained to talk about affirmative action to be an utter Abomination I am utterly disgusted with the way we are taught about this issue and I'm sorry to seem so sour but I'm here because I feel like it's a public mission to start having an honest and constructive discussion about what racial preferences consist of and where we go in the future and I think one of the things that worries me the most is that one learns a certain etiquette that we're supposed to think that the way racial preferences go is that people with equal qualifications are assembled and then someone decides how you're going to slice up the pie in terms of diversity now the problem is and Ted no offense because actually we have squared off about this before in New York City that version of racial preferences is a lie and everybody who's involved with it knows it racial preference is about lowering standards and this is the thing if it's 1970 I completely understand why you would lower standards as a temporary measure but the problem is measures like that tend not to be temporary and here we are 400 years later and we're still doing the same things when as Glenn implies the country has changed the idea that you lower standards permanently for brown students until our racial situation is somewhere close to perfect is only that it's an idea I don't agree with it I think that racial preferences should be applied like chemotherapy they do something well but you don't do it forever because it creates too much other damage and I think that affirmative action is a wonderful thing but the time has come and the time came roughly in about 1985. it's getting late the time has come to base it upon disadvantage that was the spirit of it when it was applied to black people at a time when most black people were poor but thank God things have changed it's time to change this and so I utterly loathe the current Supreme Court utterly loathe everything that they do except if they even for the wrong reasons abolish the racial preferences regime that we all lie to one another about now then that is one thing that those people will have unintentionally done right and I pray that they do it so that we can stop lying well a lot of people think you may soon be a happy man um and uh I'm waiting uh and uh I'm I will struggle to um to not uh take offense that I think uh your reference to me as uh an untruth teller I cleaned it up a little bit um uh Rachel what about you made it that way well I think the reason these cases matter to me is what Kenji Yoshino who's a constitutional law scholar at New York university has said that is we as a society are experiencing something called pluralism anxiety and that is because the demographic makeup of the country is changing dramatically and so we're seeing a destabilization of our fundamental principles that's why programs like this are so important we're seeing a polarized discourse and we're seeing a contest over for example what Merit means right what does that mean this case tests that what does academic freedom mean this case tests that and what does race mean this case tests that too so all of these principles that we might have thought we understood are currently under stress and the court is one way to have the conversation but I think there are many other ways but I think it's especially important because colleges and universities shape youth youth are more diverse than the gender general population and they will determine the shape of future public discourse well thank you I think we've we've set the stage and opened the door to a very uh interesting afternoon and discourse so let me um offer this up and see if I can get some some feedback to this uh I am of the view and I have long said that when Baki was decided in 1978 on June 28th of 1978. a day that I well remember because I was at the Supreme Court when the decision came down so for some of you the students you're looking up here and you're saying wow he's he's kind of long in the tooth uh and I am I suppose uh but I also remember leaving the court absolutely devastated in other words uh John you may think that I have embraced the Baki decision and diversity efforts and I surely have defended them but when that decision came down at that moment I was devastated because I thought at that moment for African Americans Baki was a loss and in many ways it was then and it still is now notwithstanding I haven't engaged in defending what I considered to be a second best alternative so here's the question uh I think that Justice Powell's opinion in Baki all but killed affirmative action which was the original rationale that was engaged in support of race Consciousness and admissions I think John in what I heard you just say I think you probably don't disagree with that characterization uh but I think that was all but killed as a rationale um by Baki uh and it was replaced with diversity uh and uh more about that in a moment but let me ask whether you have noticed what I've noticed which is that the discourse all of a sudden with respect to race conscious admissions with these cases pending in the Supreme Court has changed back to more affirmative action language than uh diversity uh is it me or do you think there's something to that or not let's start with Rachel and then work our way back uh to Glenn okay well first of all for those of you who may not be lawyers the diversity rationale most people think of this as equality jurisprudence but the diversity rationale is rooted in academic freedom so it's a liberty interest the reason that colleges and universities can use race and admissions whereas other institutions cannot is because they have the academic freedom to create their student bodies where the fermentive ideas will take place and so I actually don't have as dim a view of the diversity rationale because I think it was very forward-looking and dynamic and I think that it anticipated some of the demographic changes just as Powell talks about a nation of minorities in that opinion now today you do see this kind of tension emerging because there are two schools that were previously sued you're very in a very elite club as defendants in an affirmative action case with the University of California the University of Michigan the University of Texas but Berkeley and Michigan both filed a Mikus briefs in the case and they said because we can no longer use affirmative action after State referenda we haven't been able to achieve diversity these are minority white campuses now their main claim was we can't achieve a substantial number of African-American enrollments and so this issue about what diversity means and whether or not there's this kind of hidden concern about remediation that persists is real but my biggest concern is that the court is going to say diversity is not a compelling interest because academic freedom doesn't appear in the text of the Constitution and then any consideration of race will be impermissible unless you're remedying your own institutions past discrimination and very few places are doing that and we'll come back to some discourse my view isn't that dim about diversity although I still say that Baki when it was decided at that moment and now for African Americans in particular has been a loss and I can come back and say more about that um John well even the use of the word diversity once again this is this is a euphemism that we've been taught to use I'm actually watching my daughters who are 11 and 18. and eight they hear me talking about these sorts of things into Zoom Etc they're beginning to learn the words my 11 year old is already trying to wrap her head around what diversity means because it clearly doesn't mean Mormons people with one leg people from South Asia diversity among people she's gradually learning that when we say diversity we mean black people and Latino people we should be more honest about that and more to the point we're not talking about just diversity we're talking about weather diversity is important enough and I mean diversity in the way we really mean it to lower standards for a group of people for Generations running and as far as I'm concerned what happened in 1978 was that already people were even beginning to question the socioeconomic rationale partly because things have changed a lot even by then and so then you get the diversity rationale which in itself Rachel definitely is a wonderful thing in itself but I think that it gets abused in order to do a kind of window dressing involving just black and Latino people and the simple thing about diversity is this once again we're not supposed to ask but it's time to start asking we say diversity is important to an education how how all of us think it we're allowed to say it how many classes is diversity of experience useful in some I teach some but I teach more where it isn't if you're learning Italian irregular verbs what color you are and where you came from isn't going to help it's not going to help if you're learning about systolic pressure it's not going to help in physics it's not going to help in the vast majority of classes and we all know it and so why are we using that particular rationale also they've been studies I'm very close to them that show that diversity does not in any measure improve how much students learn or even the sorts of things that they learn especially since because America has changed the sorts of things that diverse students supposedly contribute in class are said as often as not by white and Asian students and I know this from experience it isn't 1975 anymore and then finally the diversity rationale is great but never mind that you would never want to look a black student the face and say you're here partly because you're different from most of us and if you couldn't do that then what's the rationale for never mind that the other thing is that as any teacher knows or is anybody who is just young enough to have gone through all of this as a student knows I remember this if you're diverse you don't want to be singled out in class to contribute your experiences the minute race comes up you're kind of shrinking because you feel like you're supposed to teach the class about your diverseness and if that's true and if they're op-eds all over the media we're 19 and 20 year old black and Latino students say this the whole diversity rationale for all of Lewis Powell's good intentions crashes to Pieces It's Time to Let It Go Glenn and then I want to come back to some of what we just heard Glenn yeah I have a lot of Sympathy For What John has said I won't repeat it I'm going to say though that 1978 was 45 years ago it was in the shadow of the ending of Jim Crow I mean 45 years before 1978 was 1933 and we know what the country was like then there was still a lot of overt exclusion and discrimination of black people there was every reason to want to challenge the meritocrats to open the doors to ensure that equal access and fair treatment was a reality for black people and not just a theory but that was 45 years ago this country is so Dynamic tens of millions of non-european immigrants have come and settled and made their lives in the country in the interim we're talking here about the foundational institutions that govern the way in which we live together in this country in the 21st century the permanent Reliance upon a special dispensation for people who descend from slaves that the criteria of assessing Excellence would be differentiated in their case made lore less exacting more forgiving this is not a path to equality this is not what we want to do in our country not the way that we want to be living 25 years from now so I I think we're at an impasse here I mean I'm not going to take the position that affirmative action is just it's so facto wrong it's racial discrimination and reverse and we ought to the position that I can imagine Justice Clarence Thomas with respect would be inclined to take that's not the position that I would take but I do want to ask myself is this good is this good for America and even is it good for black people in the end that we not be asked what others are being asked to do that our position and our penetration into the most elite venues of American society is undertaken with a asterisk with a a special treatment with oh you're black your grandfather was discriminated against and therefore I won't ask the same of you as of someone else that is not equality so let me share a a view about Powell's opinion and see if this either resonates or wrinkles uh I my problem with Powell's opinion is that I think of it as comparable to what for years up until fairly recently Hollywood has done in movies that purported to be about black folks for so long Hollywood could not find its way to tell stories that purportedly were about black folks except Through The Eyes of white people uh what am I talking about uh you all remember some of you remember Mississippi Burning uh you know important to be about Freedom Summer and the murders of schwerner Cheney and Goodman uh and in that movie the heroes of Freedom Summer was the FBI I've often said the FBI was many things in Freedom Summer in Mississippi but it was not the hero of the civil rights movement that summer uh so you think about that movie you think about the help you think about the Steve Biko movie you think about the movie about Idi Amin in which a a white doctor was created uh to be the focal point of that story you probably are not clear about where I'm going and where you're looking at me Glenn but let me just say that here's where it is uh Powell as I said through the affirmative action rationale under the bus and lifted up diversity the right that existed and was protected in diversity was not the interest the 14th Amendment based interest of African Americans and other people of color in accessing higher education groups that historically had been excluded but it was right at the University to diverse education I'm not saying that there's no there there but I'm saying that it was not the 14th Amendment right that was at issue anymore it was the first amendment right of Institutions to academic freedom where did that leave black folks uh frankly as bystanders to the subsequent discourse over these issues whatever you may think about them John and others bystanders uh you know the black lawyers for the most part and their colleagues invented public interest litigation in this country uh if you don't know that story I'm talking about Charles Houston and and Thurgood Marshall and uh Constance Baker Motley and I could go on and on uh since Baki they have almost been all but absent in the Supreme Court in these cases so uh deprived the voice and so that was one of my problems uh with what I think Powell did he basically killed the voices not intentionally I think of African-Americans and people of color in this discourse at least in the Supreme Court what opinion what opinion would you have written to pardon me what opinion would you have written what do you think Constance Baker Motley would have said after Baki how would you have liked it to go well you know um I may get in trouble if I try to speak uh for Connie Motley she's in the great beyond I did know her uh you know thankful to having known her certainly she was an advocate for uh equal rights Etc uh in In fairness if I understand what you're getting at John I can't tell you where she would have gone and where she might have uh turned uh had she lived a longer life I know that during her life and from her autobiography and other things that I think she died pretty much an advocate for the things that she worked for it was still very much things she believed in and that included opening doors of opportunity for black and brown students um Ted can I can I just because I think what we're not saying here is the alternative to the diversity rationale would have been a compensatory almost reparations-like argument to the effect that blacks have been discriminated against historically and it will be permissible to rectify or redress that historical mistreatment by the use of preferential treatment that decision did not come down in 1978 instead of diversity decision came down I agree with you that was momentous but I would ask you would you want to uh and pardon the word uh distort America's meritocratic institutions in a permanent institutional way by lowering standards for some people based upon their ancestry as a recompense for something that can't be undone which was the historical mistreatment of the of their ancestors because we're talking about the country here not just about black people I think we ought to talk about then meritocracy what constitutes meritocracy I think we ought to talk about uh opportunity who gets it and who doesn't uh Rachel well first of all I wanted to say that the concern about compensatory responses had already been established for institutions that discriminated the first cases brought by the NAACP were in higher education before Brown versus Board of Education and said that if an institution had wrongly excluded African-American applicants they needed to eliminate those barriers to admission and begin accepting them and in sweat versus painter which was UT Austin's law school they said in part it was because you needed to have access to the peers the reputation the social networks the alumni Networks so what was really at issue here is whether an institution could voluntarily consider race even if it hadn't discriminated itself and the rationales included in addition to diversity rectifying General societal discrimination and I think Justice Powell felt like that's not what universities do they're not expert on that whereas they are expert about learning now it's worth noting that in gruder they subsequently added developing diverse Pathways to leadership as a rationale honestly I feel the remedial basis would have been a weaker basis because what we see everywhere is that where only the remedial issue is at stake the court has not allowed affirmative action except to rectify an institution's own past discrimination so if that had been the rationale I worry that you know these programs would not have survived at all I want to come back thank you for that and I I'll just say quickly that I think we should um we should go back to the question of meritocracy but I think there's something to be said about a deeper dive on what you just said about the relative merits of these two rationales but Merit meritocracy what constitutes Merit and meritocracy how do we measure it how should we measure it uh you know um John it sounds like that sounds like you are absolutely convinced that affirmative action uh and diversity efforts is about lowering standards for African-American because it is so by what measure though what's you know what constitutes meritocracy no no I refuse and you refuse to engage I'm being rhetorical I refuse to engage that question okay tell me what we're really talking about is how can we get black and Latino students in in certain numbers I am all for having this very sophisticated exploration as to whether grades should matter whether it's a matter how well you do on a standardized test all of it is fascinating we probably have things to learn I will not support that conversation and what it's really about is how are these things meritocracy because Black and Latino students for historical and present-day reasons have trouble with these and therefore let's question standards and decide that we're going to be more holistic and evaluate people on the basis of their spunk which I have heard said many times no and so not for at least 30 years I hope I'm here to see it can we have any conversation where we redefine what Merit is we're not going to do it to condescend to black people it insults me frankly he's saying if I may Translate of course you may that the evocation of the debate about what constitutes Merit is a Dodge that whatever your answer to that debate is it should be applied in the same way regardless of the race of the people who are involved if you don't like SAT scores you shouldn't like them for anybody you shouldn't like them for deciding which white or Asian applicants are going to be admitted let alone for deciding whether or not you're admitting enough blacks um so we could have that debate in economics we do a lot of equations and statistics I assume that that has a disparate impact on excluding people who are not good at math and statistics maybe blacks are overrepresented amongst those people we economists could have a debate about is it too much or too little math but that debate should not be a cover for the real argument which is do we not have enough blacks in here let's see how we can get more in here to do that is kind of letting the Tail Wag the Dog so to speak it's it's letting the representational imperative Drive the operational imperative for the institution and that's the path to mediocrity for the institution again it's the country that's on the Block here not just the representation of 10 or 13 of the country's population so can I just say one thing which is the the discussion so far has been incredibly individualistic and part of what bakkie was was about the collective complexion of the student body and I don't mean complexion in a racial sense right but the the general makeup so the idea was we can't just look at everybody atomistically as an individual we have to figure out how they fit together we want to have gifted musicians right as well as people who do math and statistics and so this idea of balance is one that transcends the individual and thinks about the collective and so when you think about Merit I think if you're too reductionist and too individualistic you miss the problem of composing the entire class this this is partly a reflection of privatization and treating like education as a consumer good and forgetting that it has public regarding and public good aspects and so I just want to intervene in the conversation in that way so I am uh uh I am of the view that it is uh somewhat in seemingly to talk about lower qualifications and not talk about how we measure them what I was perhaps in a bumbling way trying to get to uh is uh the role of standardized testing let me be clear I think standardized testing has a role to play in assessment um but I think that it is not the role that it has been given by most people who think about standardized testing as sometimes the key assessment when it comes to uh qualifications about who gets admitted to selective institutions I think John about uh Stuyvesant High School in New York if you go to the test makers and ask them whether their tests should be used as the sole Criterion for admission if you press them they will tell you no that's an inappropriate use of those tests only if you press them because they're going to the bank on these tests and my point is that yes they have a place but not the place that they've been given very often and I think we need to rethink or think more about what constitutes Merit and qualifications uh that's the point that I was trying to get to so can I just ask you to address the point that okay let me stipulate we should have a conversation about how we assess the quality of applicants yeah what's in that a defense of using different criteria for uh black applicants because those two things are distinct yeah can I have criteria every year there are African-American and Latino applicants who meet the standards that so to say that we lower standards for all those groups is wrong we don't but what we do see is that the African-American and Latino applicants who can meet those standards generally come from economically privileged backgrounds and so the real group that gets benefited are low-income people of color many of whom went to law through high schools in low-income segregated communities and so one argument might be that they haven't had the same opportunity to develop their potential and they have real promise but it is also true that these Elite campuses don't always do a good job of integrating these students when they arrive I highly recommend two books one is called stagnant dreamers by Marian Don about Latino students who came from segregated communities in Southern California and encountered a terrible culture shock they thought it was all about Merit they didn't understand the social networks they didn't know that part of going to a place like Harvard or the University of North Carolina was to tap into those networks so they missed a lot a big part of the game and what Anthony Jack does in his book privileged poor is to talk about low-income students of color and the ones who got those scholarships to go to High School prep schools to go they knew the game when they got there but the ones who came straight from low-income segregated high schools were lost and they suffered for it so I do want to say I believe that there are differences based on socioeconomic status Within These groups they are important also it's very important to have programs that enable people to become fully integrated into the institutions that they attend particularly if they are first generation students who have no mentors and no counselors to explain to them how these institutions work and of that applied to White low-income students as well it does for them as well yes yeah I agree with that we're losing we're losing something here the problem is and Rachel I understand everything you're saying and those are key aspects of this but there's a creeping idea in this that black authenticity I'm not going to speak for Latinos although I suspect there's something similar but black authenticity is not getting quite the right answer not having to deal with something as abstract as a standardized test that we're more intuitive we're more artistic we circle around the answer we're more communal that's very much in the air especially in Departments of education and what worries me about the Stuyvesant question Stuyvesant High School in New York which now has maybe one and a half black students and we look at it and we say not fair to use a standardized test but we're not looking at the social history Stuyvesant used to have no problem with having black kids in and I know it because I was in my early 20s in New York City and had a lot of friends who went to Stuyvesant in similar schools and Rachel to your point but if I may just gently add something none of them were like me they were not upper middle class kids where you might kind of think well black authenticity if it's somebody who's upper middle class they're kind of less black and so they don't count when we talk about these sorts of things these were kids from Harlem and from bedstuy and the difference back then was that they were gifted and talented programs that these kids had come through where they got used to taking tests like that they took those tests away in New York City out of an idea that the gifted and talented classes were racist because Black and Latino kids were underrepresented in them and so today Stuyvesant is basically a South Asian and Jewish school and it's easy to look at that in the present and think racism but 30 years ago it wasn't like that so I think that we tend to look at these things in a rather oversimplified way I've seen poor black kids who were good at doing tests and they weren't strange and they were very black identified black authentic people it's today where we have a problem with that well John I'm with you on that I grew up in New York City too and I had friends who had exactly remember that you said you talked absolutely I do the issue again to come back to is what Stapleton does now though is use that standardized tests as the sole Criterion for admissions that's just wrong by any measure but I I get your point I take your point and by the way I agree with you that we should not be uh trying to uh the word that came into my head is one I'm not going to use uh uh but to leave black students feeling that they're not capable of performing on a very high level we can talk about how that it isn't of their Essence that there's something white about it that's right I reject that with you I mean we're on the same page there uh you seem to be wanting to say something about well I'm I'm up here thinking like a social scientist for a minute so forgive me and the way I'm seeing the problem is we have a pool of applicants much bigger than we have the capacity to accommodate we're interested in who is going to perform best within the institution that we're governing now that presumes that we can actually assess performance if we're doing calculus then do they get the right answer if we're doing English literature do they have a compelling interpretation of the novel Etc assuming that we can assess performance the only thing that matters from this green eye shade point of view is what information best correlates with post admissions performance period if it's not the test it's not the test I'm okay with that I'm not in love with the test for the test sake but I can tell you with a half century of experience as a college teacher kids that do well on the greq tend to do pretty good in the statistics course because they can integrate and then they can do the the algebra and there's no real substitute for that now if you Institute a regime in which different and less exacting criteria are used to select black students into a competitive and Elite venue of intellectual performance you're going to get different performance on average amongst those students after you've admitted them by definition that is the criteria the test correlated with the performance after admission did you get the right answer you used a different criteria for the black applicants on average you're going to get different performance among them now is that how we want to live here's the choice 13 in the student body who are black students but different performance on average amongst the last five or six percent of those who we've admitted or eight percent of students in the student body who are black and equal performance amongst those who we are admitted I would choose the latter economic state is I agree that it is relevant for all racial and ethnic groups but there is a certain form of isolation by race and poverty that is actually intensified and that's because our wealth Gap has intensified our income gap is intensified and you do see that students of color both black and Latino tend to be more isolated by both race and poverty than is true for white students and so I do want to reject that all of it is fungible the second thing that I want to say is I think when we look at the latinx students are coming out of these schools they're often from immigrant families they have a strong work ethic that's what their parents tell them it's all about the work and they are carrying their entire family's dreams on their shoulders the idea that they went through great Peril to come to the United States for a better life if not for themselves than for their children so I don't believe that there's any idea that it's inauthentic for them to pursue the highest levels of achievement on the contrary I think they feel the burden of doing so in order to fulfill their parents expectations and sacrifice on their behalf and so when they get there and they feel they can't deliver it's terribly painful it feels like a family failure and I actually taught for many years in the University of California we have lots of first generation students and one of the things that I loved at graduation was to see the Latino students coming in with their whole family because it was a family achievement it wasn't just an individual achievement so I think the dynamic you described about authenticity is very different for the Latino Community which is heavily immigrant and sees upward Mobility as the whole reason their parents sacrificed their lives and and safety to come here I want to say very quickly that the stories that you're telling it sounds to me like those are people who very much should be subject to affirmative action and different standards that's fine and if you're talking about black kids who grow up on the wrong side of the tracks and it doesn't have to be poverty but working class maybe one parent Etc yes that's what affirmative action is for my question is the the Cosby well you can't talk about that show anymore but my my is you know children of doctors and lawyers with somebody saying well they're diverse we're going to admit them I think that's obsolete not affirmative action in general depending on life circumstances well let me pick up on that though because that's something that's very much on my mind uh and forgive me the way I'm kind of looming over you at times I am by way of explanation I am my grandmother's grandson and my grandmother and her old age lost a lot of a hearing so um I want to make sure I'm not missing anything here but I want to pick up on this point that you just made John there was an exchange in one of the Fisher arguments uh in which Justice Alito talked about a hypothetical uh son or daughter of a double professional black family and he said why should they get the benefit of either affirmative action or diversity I think he was confused when he said it and I'll tell you why but he said why should he they get the benefit I understand that but this goes back to again the difference between diversity and affirmative action uh you know if in fact the surviving rationale posts backing was diversity then the son or the daughter of a double professional black professional may bring something different nonetheless uh to a university classroom environment that's a different rationale than the affirmative action rationale Justice Alito said uh you know I thought this whole thing started as a matter of disadvantage he's right on that he did I mean it did but the difference is that that affirmative action rationale effectively in my view which doesn't really survive uh it was the diversity rationale uh overlap but they're different um what about that well I I do want to say first of all that many black applicants who are from privileged families actually meet the standards so they're not actually getting a plus they don't need it they might agree right so that's the first thing I think we should clarify the second thing is but but the rumors of inferiority yes there may be the perception that they got a big thumb on the scale but a number of them didn't they didn't need it that's actually a mark of success because intergenerational Mobility made people able to meet the standards I do want to say though that I think that the idea that all African-American applicants are the descendants of slaves is also false we've seen through the work of Kevin Brown because of our success the complexities of black identity today many of the people who are going to places like Harvard are children of mixed race and ancestry like a black and white intermarriage they are black immigrants they are afro-lators often people yes and so the what he calls the ascendants these people whose ancestors were in slavery are actually a minority of those represented which suggest that even within the black applicant pool diversity has become the dominant framework rather than a remediation but I'm not sure that's a bad thing exception so far as it you know under represents these ascendants as Kevin Brown calls them yeah and I I I wrote the introduction to that book he and I have engaged a lot on these issues uh the reality is that you're absolutely right now if we look at Harvard if we look at selective institutions many increasingly many if not most of the black students are immigrants from either Africa or from the Caribbean children of or children of the of immigrants often children children up that's right yeah thank you um and that's now I'm glad they're here in this country don't misunderstand me the question is for me uh who not who is is here the question is who's not here and increasingly at selective institutions it is the the sons and the daughters of the uh the Continuum of Slavery to Jim Crow families for a lot of reasons that are complex that we could talk about uh so we may be talking about I mean the conversation we're having about affirmative action or diversity efforts uh it may be rendered moot soon although I suspect that institutions will still try to enroll uh students from all kinds of backgrounds including black and brown students but what are we going to do about that issue or should we be doing something about that issue some people say those students can go to schools that are not as high up on the pecking order in terms of reputation you know that discourse in California uh you know you know all of us know that discourse uh is that okay is that is that the answer or you know do we need to keep giving attention to those Sons and Daughters of the slavery through Jim quo Continuum who uh come from Schools disproportionately elementary in high schools that frankly often don't offer the same things that prepare students for Selective uh uh you know admissions institutions Glenn yes that's okay it's okay that not everybody goes to Harvard or UC Berkeley that's okay the world will not come to an end we are letting the elite institutions drive a conversation that really ought to be more focused on the fat part of the distribution in the population when you look at the national assessment of educational progress which measures the competency of high school students at basic intellectual functioning you see huge disparities by race when by the time you get to admission to one of these Uber selective institutions you're dealing with only a very small fraction of the population and yet it's taking up all the energy in the room the Deep Justice problem here is that too many kids of color are not competent at the basic intellectual functions necessary to prosper in a modern society one aspect of which is that they're underrepresented at the upper upper uppermost Echelon of performance and while we have this food fight about who's going to get into the Uber Uber Elite we're not paying attention to the basic structural problem which is the real Legacy of racial discrimination in this country I think it's also relevant to think you're talking about the California situation where do we get this idea that it's a tragedy for a black student to go to UC San Diego what's the tragedy I've been to that campus often it's Paradise I know many brilliant teachers on that campus and after racial preferences were discontinued in the UC system in the mid 1990s the story you never heard was that a lot of the kids that would have gone to Berkeley or UCLA and this includes native black students went to schools like Santa Clara I mean um I'm underslept folks I'm Santa Cruz and UC San Diego find places really good places and they tended much more to be on the Dean's List there than they would have been at UCLA or UC Berkeley I don't see the tragedy and also we always talk about the idea that if kids don't go to you know one of about 32 super super uber selective schools then they're cut off from connections and From Success it's this Yale or jail myth and once again where's where's the proof we are trained to nod at one another at that idea but where's the proof and I think I'm going to use UC San Diego at UC San Diego they've got professors they've got Deans they've got diversity coordinators all of those people are devoting their lives to creating an excellent institution I think they'd be surprised to hear that it's a shame that students have to settle for their school instead of Cornell where do we get this all of it sounds right but all of it is based on a fragile series of half-truths that we've been telling each other since roughly 1978 I don't get it I uh uh yeah I go ahead although I don't think that's quite the argument that's being made yes exactly and I think first of all UC San Diego will be very upset at being portrayed as something other than a highly selective institution which it is but the real issue comes at the base of the pyramid with the community colleges the two-year mostly public community colleges that is where most for example that next students go They're not going to Elite institutions for many years we saw that Latino students had the lowest college going rate it was very depressed we've closed that Gap now Latinos are going to college but they don't finish primarily because they start at two-year community colleges where they have limited financial aid very limited resources problems getting into classes and so they have to stop out they have to work long hours to get through and the Community College investment per student is dramatically different than a four-year college and certainly than a highly selective four-year college so I completely agree that we need to do work because the workhorses of higher education are these community colleges and we need to invest in them and make them a true portal into the full realm of higher education through effective programming adequate resources and efficient transfer so I completely agree I don't think these conversations are mutually exclusive by the way but I do agree that we've neglected these workhorses of higher education which is where most students of color get their start I have a modest proposal I don't know if this fits with your program but let me just say my Modest Proposal fight the excessive absurd credentialism and elitism that means that unless I went to Brown I can't get a job on Wall Street or I can't get a job in the company going on the upper ladder it should be okay to go to the University of Connecticut and still get a job at Wall Street and etc etc I mean one of the reasons why this is so intense an issue this access to the elite institutions is because they are as a matter of fact the portal into the upper echelon of the society but it needn't be so a degree from UConn a degree from Brown I mean I don't know that they're really at the end of the day is that much difference the other thing is that the level of debt that is incurred to go to these institutions is huge and for many lower income students or students of code the idea of taking on that debt load is just Unthinkable so the other pattern that we sell for Latino students is they're under placed they go to schools less selective than ones that they could get into a because they want to be closer to home because of that strong immigrant or family network but also because of the expense they feel like we can't we can't afford to do that we need to work our way through and not have debt there's a real aversion to incurring debt let me uh we're in the home stretch we're going to go to questions and answers before we do I want to take a moment of of uh privilege perhaps though and say this uh uh I grew up in a public housing project in the Bronx uh I grew up with many of my friends and colleagues many of them didn't get much in the way of opportunity didn't get the opportunities I got uh but some of them did and the institutions that we attended for college as a consequence of the era of affirmative action which I have no shame about those places where we were those institutions historically had not come to those places they didn't shine the light of opportunity into public housing projects in the Bronx one of my College High School classmates with Sonia Sotomayor who grew up in another um uh public housing project not far from mine uh I remember when she was nominated for the Supreme Court there were those who were questioning her intellectual capabilities and capacity she had graduated from Princeton and done well there fine and for that matter my hour of virtually all white high school 10 black and latinx was one of the best high schools in New York City uh at that time and she was at the top of the class so where did all of that questioning about her capacity come from the point I'm making is that many of the people I came up with uh went to selective institutions and have done fine thank you uh they've become uh leaders in Corporate America and law firms uh you know Attorneys General of states and of the United States for that matter I could go on and on this guy did not fall I am not saying that we shouldn't press black and brown students to achieve to meet the highest standards I'm not saying that but I'm saying that there are a lot of people who would otherwise get left out of opportunities if we left uh opportunity serendipity so I just want to share that thought itself serving I get it uh but I wanted to share that nonetheless uh we want to go to questions and answers right so good to us people if you want to ask a question if you could form a line behind me and while you are queuing up I'm going to start with some questions from our Zoom audience okay this is the first question from Zoom if the Supreme Court bans affirmative action do you think universities will find other ways to achieve similar goals and what what might that look like I'll go ahead and get started I think everyone believes that universities will try to find race neutral proxies that preserve access to higher education however the Pacific Legal Foundation has already brought suit against some of these selective high schools for changing admissions criteria to promote diversity saying that that's impermissible racial motivation so whatever the court does I think there's going to be lots more lawsuits more work for lawyers if you're interested in going to law school but I think they'll challenge the race neutral proxies the other things that I anticipate will be efforts to get accreditation accreditation agencies to get rid of diversity requirements for accreditation on the ground that if you're not permitted to do this by the Supreme Court how can an accrediting agency ask that of you the third thing that I think may be targeted are minority serving institutions which receive federal grants based on their enrollments of students of color and finally I think we'll see more efforts to dismantle diversity equity and inclusion offices we've already seen legislation because if you're not doing diversity and admissions why should you have an office to do it on campus I think those are all likely possible consequences second question from Zoom I often hear that white women are the primary beneficiaries of affirmative action is that true and if so why focus on race I've never known what that meant please teach me yeah that's that's always been a factoid I have no blessed idea what that refers to Rachel do you well what you do see is that the representation of women in higher education grew dramatically and so uh you know there was a time when women were excluded from Elite institutions and you know my first year at Yale law school they the one of the professors kept referring to me as Mr Moran um and so I think there were expectations that were gendered but what we've seen is that now women dominate higher education they are they have a higher representation and there's now worries about what do we do about men but I think the idea was it opened the door it normalized expectations about women in higher education it gave them legitimacy and access and then they really made the most of that so that happened but then also uh black bourgeoisie formed much more quickly presumably than it would have and there seems to be a great swell of Defense of affirmative action as having been necessary to black success so my thought has always been whatever these statistical proportions were that it was of seismic effect on the black community and also was primarily intended as something about race um beyond that I've never gone out of ignorance or laziness but yeah I think the case of women just for a moment is quite instructive because the Baseline situation of development was never really that intellectual development the skill acquisition process was never that different for men and women attitudes and practices that excluded women were easy to knock down without much affecting the quality of the admissions process once the doors are open women were able to come in and they've they have done so although there's still represented in math in this which was the example you gave earlier you know what happened to Larry Summers when he addressed that question yes I'm not going to answer you I wanted to say something on this point though because when you ask that question I thought immediately about what's going on in higher education with uh young man young men are underrepresented as compared to women in higher education and are not achieving and I'm not talking about young black men or young black men or brown men only I'm talking about young white man and there's a lot of struggle about what's going on with that phenomenon in this country right now there is a thumb on the scale sometimes in admissions for men for White young men uh right now nobody seems that upset about that maybe there's some women who talk about it but not that many so it's worth reflecting on why that's so and what that Dynamic is and what if anything it tells us about the relative dynamic between that phenomenon and what we call the Primitive action for black and Browns do but do you see how that thumb on the scale is not actually helping the uh to address the underlying issues that account for the differences between men and women in higher education you get more men but you don't actually address whatever it is that's going on that was suppressing the number of men in the first well I think we have to get at what's going on but my point is is that uh there seems to be a pretty broad consensus that we have to do something about this and it's not just saying that those men don't belong in selective institutions in an alternate universe though the main focus would be on looking at the causes and trying to solve them rather than thinking we've got to get them in here and tacitly meaning by some standards changing metric in an alternate universe if things had gone differently since about 1966 we would be hotly trying to identify what the reason was we wouldn't be afraid of the reason and we try to solve it I think we lack imagination sometimes that's what social history is like yeah but we live in our universe and the fact is is that this country has not grappled efficiently with trying to address all of those problems that underline the phenomena that we're talking about I think we can agree on that yes we can agree on that do we really want to do we really want to decide who to admit based on How likely they are to perform well at first glance that might seem like an obvious yes but my critique of that is who gets to set the standards of performance isn't that a political issue there was a point where I was getting threatened with termination from the par Center because I was trying to start a philosophy pedagogy club and I was asking questions about what's included in philosophy classes and why such as feminist care affects and so the point is if we have standards that decide who get in just based on performance I think we're going to end up with performance standards that reflect the interest of a narrow group of people not not as a euphemism for let's change the standards for black kids I can't do it I cannot go there Glenn you were the one who said that was going to be your approach did you want to respond and then I have something Etc I think the point is well taken let me tell the story I'll be very brief I used to teach at the Kennedy School we hired lecturers we had practical experience with running public institutions so they could teach our students how to administer public institutions the Kennedy School decided to needed more minority faculty including lecturers and a Gentleman came through he had extensive experience as a public health official in a big state he gave a PowerPoint presentation in which his statistics were wrong his mathematical modeling was naive and inadequate and we decided in the faculty meeting to hire him anyway even though we were lowering our standards to do so that's what my colleague said to which I said wait a minute maybe our standards that every person who looks us at the Kennedy School has to be an applied math whiz are the wrong standards maybe the Practical experience of a public health official is something that we need more of around here rather than holding our noses and being generous by lowering our standards quote unquote we ought to take this gentleman's application as an occasion to reflect upon exactly what our standards are so I agree that sometimes an incumbent governing majority can set the standards according to what they think is great and be impervious to criticism of what they do but I'm with John as we carry out this examination of Standards let's do it honestly let's do it in order to do what we're supposed to be doing make our institution better let's not do it as a way of indirectly recruiting underrepresented minorities into our into our institutions I I just wanted to add it can be very hard to measure performance right it sounds so straightforward but it's very difficult because the things we measure are only part of what it takes to be successful so I teach in a law school grades are important and they're important in getting hired but it turns out that soft skills are actually very important in being successful in practice and we don't really measure those very well and I want to just give as an anecdotal example someone who went to Berkeley law and the first semester he was there the first year the dean called him in and said you know your grades aren't that good have you thought about transferring to business school and um he said no am I passing yes well I'm very happy here I'm going to stay the name of that student was Earl Warren so there were skills that Earl Warren had that didn't get measured by his grades but made him extraordinarily successful later in life and so I just want to say measuring performance is really complicated I also wanted and I want to get to these questions I want to say very quickly that the the strongest correlation as I understand it between who gets into selective institutions and who doesn't is the wealth of parents and we all know about the wealth in this country how it's distributed who has it and who doesn't and how that falls along lines of race I'm not comfortable just accepting that reality so you guys have talked a lot about the effects of affirmative action but I haven't heard too much on like why it is in place so obviously if we're having to set different standards for different groups wouldn't it be fair to say then that there's something inherent about our system whether it's from systemic discrimination left over or inequalities in our school system for different groups largely because of redlining and how property taxes have unequally funded those school districts shouldn't we be looking more to K-12 in those schools as failing those groups and look at the problem there rather than wondering whether or not affirmative action is a good thing shouldn't we fix the problem systemically so we don't have to worry about it if we did that then we wouldn't have to have this kind of conversation and we would understand how stratification plays a role in it race would play much less of a role in it but even if we know about an inequal funding of schools although the effect of that is vastly exaggerated or the effect of redlining although we tend to forget that 9 out of 10 people who were redlined were white that's something that we don't we don't talk about much but even if we know about those things the question is always do you lower standards as the result of them now if you're talking about somebody who was directly affected by those things in the here and now yes that's what affirmative action is for but the more abstract argument that you do it for the whole group with each person standing in as one part of a general symbolic representation that's more performance art as far as I'm concerned but yes we need to work more on what happens before college and another thing we need to work on and this is a different forum is that more people should be instructed to go to what excellent vocational schools should be there for anybody in any of the 50 states and they shouldn't go to four years of college it should go back to the way things were before 1946 and many people should go to two years of vocational school and make a six-figure income doing something vocational that's something we don't talk about too many people have to go to college in the United States and it's arbitrary we lack imagination it wasn't like this until after World War II but that's another conversation let me add something um maybe it's not directly responsive to the question but what I want to say is you don't have to go for population parity even if you decide to be in the business of seeking racial diversity there's a big difference between 13 let's say blacks or 13 of the US population in the entering class and eight percent eight percent is not the end of the world you will have noticed that there are some groups that are overrepresented we're just talking about women you could talk about Asians You Talk Amongst whites about various ethnicities so some groups that are overrepresented these numbers have to add up to one the fractions so if anybody is overrepresented somebody has got to be underrepresented it's not the end of the world that the groups don't line up thirteen percent thirteen percent thirteen percent we can tolerate a certain amount of variation because the groups are themselves different in their interest in their cultures in their patterns and habits and behaviors we should expect to see those differences reflected in uh the admissions process and that's not the end of the world I only want to say that I completely agree with your point but doing vacation that would be needed to create authentic equal opportunity it's very difficult and the United States Supreme Court has said that there is no constitutional right to an equal education so it really limits your ability you have to go under state constitutions and sometimes you're only seeking an adequate education and one of the concerning things for me is that we've seen in schools this concentration about I mean you also have schools with like 90 percent in California 90 you know they're they're 90 on free and reduced lunch and you know they're 90 in poverty and these schools have to do so much besides teach the lessons they have to deal with a social fabric that is frayed with a safety net that doesn't exist if you're undocumented you aren't eligible during the pandemic you weren't eligible for all kinds of relief and even if you lost your job and so they are dealing with so many other things besides learning with very limited resources and the other concern is that you know we've become very worried about school safety so you now have schools that have more police officers than they do have guidance counselors so you know my sense that safety is important yes but we need to invest in schools we need to invest not only in the academic but what they used to call it the turn of century full service schools so that you're not hungry in school so that you have adequate medical care so you have eyeglasses if you need them schools are one of the few comprehensive public Community institutions we have left they are the spot where we're going to train people for not only the economy but to democracy and when you consign children to inadequate facilities teachers who unwaver no nurse you know you're sending a message about your democracy and what it means along with whatever academics get it taught um my question I I've listened with great interest to a lot of distinctions uh with regard to um advantage and um affirmative action and so on what I'd really like to hear in addition to that though is it seems that there's a pretty strong consensus among the four of you that disadvantage is a real thing and that it ought to be addressed I'd like to hear a policy about how we can address the disadvantage to take it out of the racial uh Arena and say well we still are left after discussing the the the differences of opinions we might have about affirmative action with a horrible problem at this advantage in getting a higher education and getting an education in this country what should we be thinking about in terms of a national policy as opposed to the local and City ones that may we're in public education that are overwhelmingly difficult so just I sincerely believe that a lot of the answer to that question if the premise is that the lowest income should be working class I presume we're going to have stratification but nobody should be living in poverty work in class and then probably some people who are too rich because it's hard to avoid that but no poverty we really need to think more about vocational education and for somebody like me to say that it sounds like I'm talking down it sounds kind of like let them eat cake I don't mean that at all I am extremely moved to meet people who have two-year vocational educations and make good healthy salaries and they're married and therefore they're too healthy salaries and if their children want to go to college they can go to college often one of these big ones especially with a scholarship I think that the idea that we have that the default desire is higher education where you go somewhere for four years and probably sit in a dorm and pretend to like Shakespeare that is a completely completely arbitrary notion and I would like to see us basically have a national commitment to making sure that poor kids can go to a functioning vocational school that shunts them into the particular careers that are available in their area and I think that if we did that in one generation we would see a decrease in what we call inequality that they were trying for with the Great Society but which was hijacked it's a very important thing no no one should live in poverty that shouldn't happen but we would have to really change our notion of what the typical American does After High School yeah I'll add very briefly I mean I I do so with a certain amount of trepidation the reform of the delivery of educational services at K-12 through large public institutions in the big cities choice for parents giving them options to put pressure on institutions to deliver better services to their charges I know that's controversial I know it's very political I've heard of the National Education Association believe me I have but I think that's where a lot of the action is early childhood and K-12 development and making sure that people have the right to seek education for their kids wherever they can find it uh if the public school system is not serving their kids very well I think that's got to be on the table sorry yeah and I actually want to build on that because I think one thing we've seen is universal Pre-K can be highly beneficial no other group benefits more than latinx from Universal Pre-K so I think that's one thing to think about another thing is what they call critical transitions in elementary and secondary education there are these moments when you either move forward or you kind of fall off the map you mean summer well I mean the summer slump or whatever actually a summer slump but also there's like when you move from Junior High to high school that's a critical transition and if you're well prepared then you thrive so having college going no this is antithetically having college-going cultures to help people move through those Transitions and understand what they need to do I see as very important and I also want to say I think being a teacher today is very difficult and I think we need to really not only honor our teachers with appropriate support but provide them with the opportunity to do collaborative training and I brainstorming about what works and what doesn't work so that teaching really does feel like a true profession and not just maybe being isolated in a classroom without enough resources so I also think leadership is important we've seen lots of studies saying that A Gifted principle makes a huge difference so all of those things invest in your talent find the critical transitions where more resources are needed and get people off to a strong start I'll keep it short but the University of North Carolina is not just an American University it's also in the business of educating the next generation of leaders disproportionately in this state north of 85 percent of students come from North Carolina and lots of the state's future government business Community leaders are being educated here does the state have a legitimate interest in trying to make sure that that cohort is more representative economically racially geographically of the state than it otherwise would be and has affirmative action helped if that's the goal to the last question my question was just that um so UNC undergrad is like 60 women right now almost it's 58 two-thirds of the valedictorians are women but amazingly every College in the Northeast is 50 50 male female so how is this Supreme Court going to protect affirmative action for men after they throw it out based on race thank you maybe a lawyer should answer that because I don't know whether or not the 14th Amendment Provisions that might be invoked in adjudicating the racial affirmative action case would even apply into gender this is is a good answer a good start because for race streak scrutiny applies which means that a government actor can only engage in race-based considerations if they are necessary to achieve a compelling interest with gender the standard is different it's a little bit more flexible to allow for other kinds of differences so when you go look at it allows you to do it so long as it's substantially related to an important interest but if you go look at the federal legislation the non-discrimination acts if you go to title VI it's a straight non-discrimination you shall not discriminate based on race ethnicity and national origin when you go to Title IX it says you shall not discriminate on on the basis of gender except for Boys and Girls Clubs and boys and girls bathrooms and a whole slew of other things and so it's not clear the same standard would apply and it might be more flexible and more permissible therefore right to for example can continue to have single sex education single sex clubs right so if you can do that why couldn't you have some form of gender-based preferences if needed that that it's a it's a much I think it's a difficult issue but it's not as clear-cut as as raised with strict scrutiny is it's very tough standard what she said and um the great irony is that it is much easier or somewhat easier at least to engage in gender-based affirmative action than race-based affirmative action this Supreme Court does not have before it the issue of gender-based affirmative action so it's great irony because the the reason we have strict scrutiny with respect to races because of our long and tragic history of slavery and Jim Crow segregation against primarily against African Americans so it's a great irony that it's harder to have affirmative action for them than it is to have affirmative action on the grounds of gender we are out of time but I just want to encourage you all to pardon me the north the North Carolina representativeness oh North Carolina representation well I you know there's there's no question that uh you know I was thinking about it are we comfortable with having the flagship State institution um an institution that really is not thinking about and trying to enroll significant numbers of black and brown people given what the function of this institution is uh that's some of what Justice O'Connor talked about I think in gruda and so I get your point and I agree that it's an important one yeah it is I think related to the idea of Pathways to leadership and the only thing I would add is that those Pathways to leadership are diverse as that scene is essential to our Democratic integrity because we are a people right and if we don't have legitimacy that we don't think everyone has access to Pathways to leadership that diminishes our faith that we truly are a people as opposed to a segmented bunch of vulcanized groups so the idea was that promotes Democratic and Terry so it wasn't just race for Race's sake it was Pathways to leadership that are diverse to preserve our Democratic integrity and legitimacy uh I want to ask you all to do something if you will and I will not know whether you do it or not um all of this controversy about the 1619 project uh this year in the last couple of years but I've often done the mathematics and if you look at the arrival of uh involuntarily of Africans in 1619 and run that up through the present and you all can email me find my address at the law school and tell me that I'm an idiot I'm wrong uh whatever you want to tell me but by my lights somewhere still around 80 percent of the days since the arrival of the first Africans in Jamestown the beginning of the African-American experience somewhere around 80 percent of the days of that presence of African Americans were subordinated by either slavery or Jim Crow segregation my point is that we haven't even really begun to address the legacy of that experience that continuum so is there um unequal or inequality in terms of uh academic preparation absolutely and still have all kinds of discrimination with respect to Elementary and secondary school education I think you get the point um Ted what do you mean by the questions hold on a minute address it may be that the questions that you asked not it may be I grant you that the questions that you asked John and Glenn that you put before us are profoundly important questions my question to leave you with is though what are we going to do about this history and this Legacy that still is manifested in so many ways today that doesn't require us to necessarily have a disagreement on the points of your raise and maybe it does to some degree but I think we have to continue to wrestle with that and grapple with it Ted I want you to have the last word but you're using you're using the kind of code words that I've been talking about diversity Legacy what do you mean by address and what address has not happened in any significant way since 1965. what's address that's a long conversation I'm not trying to duck it isn't that I'm trying to ducky John but I think that any uh if we talk about honesty any honest conversation has to acknowledge that we have not fully grappled with that long Legacy I don't know what that means well you know what uh let me say something John believe me I feel you bro but you know what you know what the world is going to move on no one nowhere is it written that life is fair we can be talking about 16 19 until 21 19 but the world is going to move on so uh I don't think that that's a particularly fruitful black lives matter well that's a huge social movement they haven't moved on I'm sorry it's also doesn't matter has been a huge social movement probably the most prominent you may or may not disagree but it was a very significant mobilization of people around ongoing concerns about equality and fairness so some people are not going to move on I I grant you that and I was here for the summer of 2020 and I think the Legacy for our politics is yet to be fully understood and it's not all good so that's what we're going to lead this although I say I do not accept leaving things where they are I won't do it you can you know that's not what I meant well then there's hope thank you

Channel: UNC Program for Public Discourse

Views: 2,395

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Id: n4U3KAsrGmE

Length: 95min 46sec (5746 seconds)

Published: Tue Feb 28 2023