The Future of Race in Higher Education

going webinar series on race in higher education today our topic is prospects for the future but nodding a moment to the past this is a subject that has been Central to the National Association of Scholars since its founding in 1987 and onward over the decades including Nas's support for prop 209 in California in 2009 in 1996. uh so I think it's a really important topic for Nas and I'm glad to have our panelists with us today and all of you who are listening uh to discuss it my name is Keith Whitaker I'm the chairman of the board of directors of the National Association of Scholars and I'll be moderating today's event in just a moment you'll hear from our panelists but first I want to give everybody a sense of what to expect today after I introduce our speakers they will each have 12 to 14 minutes to speak which is a nice way of saying keep it under 15 minutes at the conclusion of their remarks I will read questions from you the audience to our panelists so as you listen and you have questions please submit those questions using the Q a box that's at the bottom of your Zoom panel if your questions don't get answered you can send them to NAS at Randall nas.org so that's r-a-n-d-a-l-l at nas.org and we will forward them to the panelists the event is being recorded and a link to the recording will be sent to the email address that you use to register for today so again thank you so much to everyone who's joined us for this event and now let me introduce our speakers for today and we're going to go in alphabetical order of last name so Jonathan butcher is the will Skillman senior research fellow in education policy at the Heritage Foundation is a policy a Polson policy Analyst at the Manhattan Institute and she is also a PhD student in American politics at Boston College where her dissertation will focus on affirmative action and finally Ilya Shapiro is a senior fellow and director of constitutional studies also at the Manhattan Institute previously he was executive director and Senior lecturer at the Georgetown center for the Constitution and before that at the Cato Institute so again what we're going to do today is here first from Jonathan renu and Ilya and then we're going to go into uh question and answers where I'll share your questions from the Q a box and then finally before we close we'll have uh two minutes or so from each speaker and closing remarks so with that said uh Jonathan I'm going to hand it over to you thank you thank you Keith for that introduction and thank you to the National Association of Scholars for uh having me this afternoon and it's it's really a pleasure to be on this panel because I think the folks are going to hear from after me are so well versed in this issue that my introductory remarks I think are just going to kind of warm up for uh for what's to come so in the few minutes that I have uh to get things going I'm gonna give you three points and uh we're gonna kind of walk through some of the basics here to sort of lay the groundwork for what we expect to see in the higher ed landscape with the decision that we anticipate here in another couple of weeks so let me give you three things so first how do racial preferences actually work I mean do we really know uh or what do we know about how they operate in higher education Admissions and I would argue from the research that we have it's not just a tiebreaker right we're not just talking about something that is sort of breaking a close race between students as they are considered in higher red admissions number two I want to talk about mismatch mismatch research I think is is fascinating it really dates back I mean we're talking to even the late 1960s there were people when researchers making comments about the mismatch of students to institutions because of racial preferences and the policies that generate them and then finally colleges are going to try to circumvent prohibitions on racial preferences what has that looked like in the past and I'm going to give you just a couple of examples of what that's going to look like all right so first so for those who may not be familiar with the issue or you know only uh vaguely have an understanding of what racial preferences look like in higher ed admissions we're going to just start generally and talk about the concept of a student's academic Index right a student's index is a combination of scores of college entrance exams uh GPA classroom bank that a college will use and put together a score for a particular student it's going to look a little different from college to college but especially in Ivy League schools these scores are often used right and put together for applicants as their applications are considered so as the students for fair admissions cases demonstrate though not all students were from ethnic minority groups benefit from racial preferences and admissions in the same way for those who do college officials will calculate these additional points based on the average numerical difference in academic index scores between minority students and their peers now remember by 1980 research had shown that 75 percent of black students who are accepted at selective colleges receive some sort of racial preference this robs young people of the opportunity to be judged by their own merits and so for this reason and others Americans oppose in surveys the use of racial preferences and Admissions and have for for quite some time Pew research survey from 2019 found that 73 percent of respondents said colleges should not consider race and admissions notably nearly two-thirds of black respondents to the survey agreed with that 62 percent opposed racial preferences uh 63 percent of registered Democrats or respondents who lead Democrat oppose the idea and on and on right this um uh 67 percent of respondents said that grades should be the top Factor largely held consistent uh in a similar survey from Pew in 2022 so you know we've seen especially through these polls and others like a recent Harvard Harris poll you know you've got um three quarters two-thirds or more of people opposing the idea of using race and college admissions now academically selective schools leverage racial preferences to admit students who have not been prepared by their K-12 schools to succeed in such institutions academically High achieving black students do enter selective colleges and universities and often perform exceptionally well but these students are demonstrating aptitude and preparation in their applications and so they don't need preferences for admission it's research that looks at the students who are admitted after being awarded these additional points on their academic index which is why I described that at the beginning often struggle mightily and aren't unable to compete in their course of study so that will lead into the mismatch topic that I'll describe here in just a minute but um just to add a little bit more on how we're really uh when when racial preferences are being used they're not um breaking uh breaking a tie right they're not just the difference between um students who may be close um close in in what their application materials may be so in an applicant's GPA as measured on a four-point scale may be multiplied by a figure to make the value worth hundreds of points similar calculations are made using ACT College admissions test results but those of course are measured on a scale of one to 36 sat results in the same way so that when combined you can get a a figure that's represented largely on a thousand point scale um so let's take an example here from a book called in no longer separate not yet equal the researchers show that racial preferences can result in large increases in a student's academic index equivalent to 310 points on the SAT or 155 total points on a student's academic index Richard sander whose research on this mismatch idea that I'm about to get to in a moment he said in a 2006 hearing from the U.S Commission on civil rights he said that racial preferences are not tie Breakers between black students and their peers but clear evidence of priority treatment based on race so that's that's the issue here right that's a problem that's what we're really describing here all right so number two what is uh mismatch and why does it matter and mismatch is uh arguably the strongest predictor of bar exam passage not only do institutions that use racial preferences treat certain students as inferior based on the color of their skin and not only is the practice highly unpopular they create a mismatch between students and the institutions where they enroll according to the research of of sander and others black students are one-third more likely than white students with similar similar academic and personal characteristics to start college yet these black students are less likely than their white peers with similar characteristics to finish that is because the mismatch theory has been proved Time and Time Again by researchers using different from using different data from colleges universities law schools if an institution adds points to a student's academic index because of his or her race the student's academic qualification qualifications may not match the school's requirements and the qualifications of other students as a result the student is more likely to struggle with the academic workload and even fail so the index the academic index creates this problem then by giving a false illusion that a student may be prepared to succeed in the school in which they enroll sander and others began documenting the academic and other harms from mismatch in the late 1990s after California voters adopted prop 209 which prohibited public employees such as the California University system from using racial preferences and hiring or admissions though University recent Regents rescinded its ban on racial preferences under prop 209 in 2001 in the period between 95 and 2001 sander had a great sort of perfect experiment to use as he looked at what was happening with the students who enrolled before and after racial preferences became a ban on racial preferences became policy um after the passage of prop 209 sander found that graduation rates for black students Rose rapidly four-year graduation rates for black students after the measuring passed increased from 22 to 38 six-year graduation rates increased from 63 percent before the proposition to 71 after again the reasoning for this is that students were now more appropriately placed with the schools that match their academic preparation so the failure to succeed in a school where the rigor does not match a student's academic ability is the most measurable harm um from mismatch law schools provide a fitting example for this but it's not the only one in 1996 researchers Rogers Elliott and a Christopher strenta led a team that investigated the use of racial preferences at Dartmouth they found that black students with lower scores in high school were more likely to drop out of rigorous stem programs right science technology engineering and math the findings were supported in 2004 by research using a much larger data set from the College Board so what they're showing here is that when students are admitted without having the preparation to go into these programs whether it's law whether it's stem right they're being mismatched right with the uh type of assignments and the courses that they're going to be asked to complete once they get to higher ed the mismatch caused by racial preference is also negatively affects students academic attainment sander and Taylor argue that the findings on the way in which more effective matching of students to colleges based on academic preparation and the higher graduation rates that follow could have been even higher they suspect that we could have seen higher graduation rates after prop 209 because during the prop 209 period from about 95 to 2001 that they looked at administrators have been working to conceal the use of preferences while minority students earned lower grades than white students with similar backgrounds making them more likely to drop out of colleges okay so that's going to lead to point number three so other University Systems and college accreditors have also explicitly pledged to ignore bans on racial preferences after Michigan voters approved a proposition similar to California's 209 University of Michigan president Mary Sue Coleman said she would quote consider every legal option available to get around the new ban in Her speech following the vote she said quote I am deeply disappointed that the voters of our state have rejected affirmative action and quote we pledge to remain unified in our fight for diversity making no mention of the mismatched research that I just laid out for you and that was the subject of a U.S Commission on civil rights hearing just a few months earlier that year in 2005. okay so what does that look like so Point number three colleges are going to try to circumvent prohibitions on racial preferences and I'm going to give you um one example and then I I will wrap up because I think this is the one that um it gives us the best I think look into what especially the most perhaps the most aggressive a creditor may try to do so the U.S Commission on civil rights in 2005 they highlighted a Brazen policy adopted by the American Bar Association in the early 2000s ABA accredits law schools adopted an operating policy that stated law schools must show quote concrete action to promote the enrollment of minority law students it was called standard 212. the ABA went further and said law schools should ignore statutes and even constitutional Provisions that prohibited racial preferences and here's the interpretation as originally written the requirement of a constitutional provision or statute that purports to prohibit consideration of gender race ethnicity or national origin and admissions or employment decisions is not a justification for a school's non-compliance with standard 212. a law school that is subject to such constitutional or statute statutory Provisions would have to demonstrate the commitment required by a standard 212 by means other than those prohibited by the applicable constitutional or statutory provisions the ABA even suggested specific ways that schools could take quote concrete action and in addition to racial preferences such as quote creating a more favorable environment for students from under underrepresented groups do you uh the commission on civil rights had a tiering in 2006 you know based on um criticism of this or at least the creation of this policy and the criticism of it the ABA ultimately revised that language right they revised their provision but they showed their hand right they showed what they were ultimately after and what they really um were looking for and how they thought that schools should be trying to circumvent bans on racial preferences in his testimony before the commission on civil rights George Mason Professor David Bernstein said quote ever since the court decided Bruder versus Bollinger in 2003 ABA accreditation officials have been pressuring law schools to use or increase the use of racial preferences using their accreditation authority to Blackmail the schools and I think as some of the speakers who are following me are going to say notice that accreditors really all of the main accreditors right that accredit schools in all different parts of the country have Dei statements requirements in their Dei statements that schools have Dei statements right and all of these things are trying to predict uh protect the current Orthodoxy around racial preferences in schools so with that I'm happy to pass it to uh to the rest of the panel and I look forward to the questions thank you Jonathan well we're going to turn now to renu and I want to just remind audience members if you have questions please type them into the chat as we will be turning to questions after renu and Ilya Reynold to you thank you Keith and thanks to the National Association of Scholars Scholars for having me and also Jonathan for his excellent remarks and particularly his third point on the ways in which schools are going to try to circumvent a supreme court strike down of race conscious admissions is what my comments right now are going to primarily focus on so it's it's a great transition I think the number one thing to understand is that if the Supreme Court strikes down explicit affirmative action as we have today and it's expected to do this is in no way going to Signal the end of race conscious admissions colleges and universities are going to do everything in their power to continue discriminating on the basis of race even if that means you know circumventing or ruling from the nation's highest court and this more covert type of discrimination is like traditional affirmative action going to provide an admissions tip to Black and Hispanic students that are perceived to be under represented in higher education relative to both their shares of the U.S population as well as their shares of graduating high school seniors and it will penalize white and Asian American students who do not receive such an admissions tip and Asian Americans specifically are considered over represented in higher education again relative to their share of the U.S population and also High School seniors who are graduating so before diving into the two primary ways in which I see institutions of higher education themselves specifically planning to discriminate on the basis of race following a supreme court strike down of this policy I think it's worth mentioning briefly what the impetus for such discrimination is going to continue to be going forward and I think that this impetus is based partly on what the delayed political scientist James Wilson called proposive incentives and then also partly on what he called material incentives so a purposive incentive is a motivation for an action that's based on some sort of high higher moral ideal or principle and in the case of affirmative action race conscious admissions this larger moral ideal is the notion of restorative or compensatory Justice for racial minorities that are perceived to be victimized in American society typically by the political left and it's also going to be the impetus from a moral standpoint of continuing to discriminate on the basis of race following the Supreme Court's decision so restorative justice or compensatory Justice is going to continue to be why schools feel the moral need to discriminate against White and Asian students diversity this notion of the educational benefits of diversity is really just a trojan horse for this other purposive incentive and now a more a material incentive is a motivation for an action that's based on some sort of monetary reward so again in the case of affirmative action the monetary reward is the compensation that employees whose jobs are dependent on the concept of racial preferences or a hierarchy of racial victimhood receive and these employees are your diversity equity and inclusion or Dei administrators now some numbers that I think illustrate the connection between race conscious Admissions and the larger Dei apparatus in higher education is a December 2018 tweet from Mark Perry who's an economist at the American Enterprise Institute and he shared in his tweet that the University of Michigan which was London in 2003's frats versus Bollinger and then the University of Michigan law school was was the respondent in Rudder versus Bollinger that started much of the diversity rationale as the justification for affirmative action after Justice Powell's opinion in the bakkie case in 78 he found that you Michigan employed at the time at least 82 full-time diversity officers at a payroll cost of 10.6 million dollars and that number was back in 2018. we are now in 2023 post BLM protest riots racial Reckoning so I anticipate that number is much larger so we can think of the material incentive behind maintaining racial preferences even in the aftermath of striking down affirmative action as the foundation to the larger Dei complex because if you don't have some sort of racial preference you don't need a Dei officer so College administrators are going to be motivated to continue discriminating on the basis of race for the simple fact that many of their jobs depend on it so there's a Reliance impressed there now the first way onto my second point that I anticipate colleges themselves discriminating on the basis of race even following a strike down of affirmative action is through the elimination of all standardized testing requirements and we're already seeing this trend begin in anticipation of the Court's decision so before going into some uh instances of that I think it's worth mentioning what recent data in 2021 show the average SAT and ACT scores of each racial or ethnic group in the U.S Being because that kind of illustrates why colleges and universities are Keen to get rid of this admission map wreck so out of a total possible score of 400 to 1600 on the SAT with 1600 being a perfect score in 2021 Asian Americans earned on average a 1239 white scored and 11 12. Hispanics scored a 967 and black scored a 934 and the ACT tells a quite similar story so again in 2021 on average Asian Americans scored a 24. white scored a 21 Hispanic scored an 18.3 and blacks on average scored a 16.3 so by moving to eliminate standardized testing requirements meaning becoming either test optional or test blind in the case of the University of California system they don't even allow you the option to submit your test scores as of 2021 colleges and universities can in the absence of affirmative action continue admitting low academically achieving blacks and Hispanics who might have lower standardized test scores while placing less value on the higher standardized test scores of certain Asian American applicants and again blacks and Hispanics are perceived to be underrepresented in higher ed while Asians are perceived to be over represented and so many schools have already taken this step a few months ago in March Columbia University became the first ivy league institution to permanently drop its SAT and ACT requirement and other Elite colleges as well as you know more standard colleges and universities are going to follow suit Harvard has already suspended its act and sat requirement for admission through the year 2026. Cornell has done so through 2024 uh recently in in April the State University of New York System entirely dropped its standardized testing requirements and in fact the National Association for fair and open testing found in a recent study that 80 percent of all U.S colleges and universities didn't require applicants in 2022 so last year to submit their sat or ACT scores the original impetus for this was the covid-19 pandemic but you know extending your test optional status through 2026 or getting rid of it all together pandemic is over so the real rationale behind this is trying to kind of get ahead of a strike down of overt racial preferences and the last point in terms of testing that I'd like to make is that colleges and universities while aware of what they're doing are not doing this on their own they're receiving guidance from other large institutions within the higher education apparatus such as college board so College Board administers the s-a-t-a-c-t and advanced placement or AP exams and seemingly against at least in part their interests their advising colleges and universities through guidebooks webinars to drop their standardized testing requirements and quote redefine Merit as moving away from grades and test scores the National Association of College admission counseling is also hosting webinars helping advise Elite schools to drop their standardized testing requirements and even forego the consideration of AP credits and AP exams altogether so these higher ed organizations are standing alongside colleges and universities in preparing to resist a supreme court strike down of affirmative action and the second way in which colleges I anticipate will continue discriminating on the basis of race is through the use of what I call victimhood essays on their applications so this was a point that actually came up in oral arguments back in October a few of the justices asked Patrick Strawbridge and Adam mortaro who represented the plaintiff students for fair admissions if the elimination of race conscious admissions would mean that an applicant would in no way be be able to discuss their race or ethnicity in an application essay say the prompt involved how did you overcome adversity would they not be able to talk about their family their race Etc and the two responded that such would not be the case if there was an essay that asked applicants to describe how they overcame some sort of disadvantage the applicant could still mention his or her race or ethnicity it's just the an admit decision for the college could not turn on the racial characteristic but rather on the act of overcoming discrimination adversity you name it so admittedly this is a very fine line and it's worth noting that organizations that want to maintain racial preferences they have an economic moral whatever interest in doing so have taken note of it so in a December 2022 webinar by the National Association of college admissions counseling NAC officials made it a point in their slideshow to higher ed officials and high school guidance counselors that they need to start differentiating between what they called a check the box consideration of race and a holistic consideration of race so they took the exchange between Strawbridge mortar and the justices to suggest that whatever way the Court's decision comes down in eliminating affirmative action perhaps they would no longer universities be able to take check the box you know are you Hispanic are you white are you Asian Etc as a racial preference but they could use a holistic consideration of race you know in terms of a story a background Etc as some form of admissions tip particularly in the form of an application assay so this is advice they're not they're now putting out there and so for that reason I think in the upcoming College admissions cycle and subsequent admission Cycles we're going to see schools include essay prompts in their application that require or prompt students to discuss a time in which they faced adversity discrimination or some sort of disadvantage so those are the two sort of specific ways that I see schools themselves in addition to you know Jonathan's comments about what some of the credentialing will require for these schools I think the schools themselves are going to eliminate testing as they've already done so move toward eliminating AP exams and also change how they ask their application essays the last point I'm going to make before turning it over to Ilia is so much of what I've said is kind of Doom and Gloom and I guess there's reason for that but I do want to end on a slightly more positive node and you know Jonathan mentioned the polling on this and his comments that three-fourths of Americans basically oppose this policy that now guides much of American life and a few months ago the New York Times held a focus group of 12 what they described as quite racially and socioeconomically diverse college students and they described this as the most shocked they've ever been from the result of a times-focus group and what they found was 11 of the 12 current college students said that they opposed affirmative action many of the 11 students who are Black and Hispanic and the reason they said this was because they did not want their peers on college campuses to think that the only reason they were there was because of affirmative action and that they were in fact there because of their own Merit and this is something that Jason Riley for example has spoken and written to act like the stigma that this policy places upon its beneficiaries and many are not in favor of that so while I think administrators are going to go to Great Lengths through getting rid of testing and victimhood essays and accreditation to maintain the system following a supreme where it's strike down I think you will see perhaps an adverse response from the students but I don't think it will be as negative as I might have a tendency to believe based on what this one sort of strange focus group showed thank you thank you Reno for those comments and that glimmer of hope there at the end uh Ilya on to you great well thanks for that uh introduction and fascinating presentations by my fellow panelists we actually uh didn't discuss what we were each going to say and our order was selected you know randomly alphabetically but I think this all meshes well together because even though I've been heavily involved in these debates uh over affirmative action and racial preferences I filed a brief uh in this case uh in the Harvard and UNC cases before joining the Manhattan Institute um uh I'm I'm going to touch on another aspect of race and campus and and that's uh what what Renu uh mentioned that the growth of the Dei offices and thereby the perversion of University missions and and higher ed more broadly now these two things are not unconnected of course because the whole reason why we talk about diversity and why there's that D part of Dei is because of that affirmative action case from 1978 the Baki case where the Supreme Court threw out quotas in terms of of race but Allowed by one vote by Lewis Justice Lewis Powell the use of race as one of many factors in this kind of holistic review uh and from that one seed from that one germ our whole uh edifice of Di has grown and Di is really the the blend of two nefarious Trends in higher education uh even more than in society writ large one are these postmodern uh critical theories that originated well different people place them in in different places from Germany and Austria in the 1930s and 40s and then migrating to America and becoming critical studies of various kinds in English and sociology departments critical legal studies uh in the 70s uh critical race Theory as an offshoot questioning systems and structures the fact that you can't take the laws neutrality uh as as a given that that all of this racism and sexism and illegitimate constructs are baked in and what we need to do is to tear down all these structures and understandings based on intersectionality who has higher and lower privilege who kind of this oppressed Olympics who is more or less oppressed that's how you weigh the weight of what they're saying a collective uh racial and ethnic guilt of various kinds all of this sort of stuff but you know I'm not I'm not here to give you a seminar on on a critical theory a critical race Theory or anything else but that's you know when I was in law school in the early 2000s we had thought that that crit stuff had all long gone by the wayside there were still some random crits at the margins of certain law schools but that was all 80s and 90s stuff but then it came back with a vengeance right you know Die Hard with a Vengeance the sequel right so here it came back uh as the second Trend that I now want to bring in which is the bureaucratization of higher ed really came in and so uh around 2010 was when a lot of schools The Tipping Point schools generally started having more non-teaching staff than full-time faculty uh and uh starting the mid 2010s you know people date what Renu called the the racial Reckoning or kind of a new appreciation for uh social injustice what have you the the the the shootings of of the police shootings of of black men in 2013 2014 uh and then you know the uh exacerbated much more by by the pandemic addling everyone's Minds uh and the George Floyd murder uh accelerating all of that to the point where now Dei uh is the largest uh growing segment of University bureaucracies which themselves are are huge you know we've gotten to the point where in many places there are more non-teaching staff than students you know there's a joke that at Yale for example which is one of the more guilty ones of this maybe each student should be issued a butler like they had a hundred years ago in a slightly uh different context and Rain who had some statistics from I think it was five six years ago there's a there's a newer study that's just excellent from 2021 from Jonathan's uh colleagues Jay green and James Paul at Heritage of 65 large universities the the power five football conferences uh as it were they represent 16 percent of all students attending four-year institutions uh and they found that uh the more than the average school has more than 45 people devoted to Dei which is more than the average number of professors teaching history it's um let's see 3.4 uh people work for Dei for every 100 something like four times the number of people who are legally required to be there to help people students with disabilities and raynu mentioned the University of Michigan which in that startling tweet by Mark Perry of something like 81 full-time staffers as of 2021 that's doubled it's now 163 full-time staffers at the University of Michigan and and let's be clear these people are not uh this is not the debate about whether some Professor should be teaching critical race Theory or what they're saying in this side of class are they are they advocating Marxism or this or that totally different discussion this is the bureaucracy these folks you know regardless of subject matter aren't Bound by principles of academic freedom they come from this other tradition of of critical studies of enforcing an ideology that is hostile to the traditional mission of higher ed of Truth seeking and knowledge creation and teaching the Next Generation Um these are people who make 60s liberals afraid right the the boomer generation uh the the decades-old complaint the conservatives had about liberals taking over the Berkeley faculty Lounge this is something different I want to make that clear affirmative action racial preferences that's still part of this decades-long conversation about you know how to remedy passed wrongs and this diversity kind of being a bait and switch for actually it's remedial or or what have you that's the continuation of the same political fight that we've been having for a long time this growth of Dei and the enforcement of trainings and diversity statements and anti-bias response teams and all of this this is new and that's why the book that I'm writing now which focuses on law schools building on my own lived experience with with Georgetown is about it's called canceling Justice the illiberal Takeover of legal education but the dynamic is is similar across higher ed it's perhaps more worrisome in law schools uh as I told the Wall Street Journal in the weekend interview a couple of months ago that they were gracious enough to do with me you know law schools after all are training the next generation of The Gatekeepers of our legal and political institutions they're going to be our judges our general counsels of Fortune 500 companies uh and all the way down throughout throughout society and of course the the political commissars in the Biden administration's executive orders on Equity kind of seeding every agency requiring every agency in the federal government to run an equity review before promulgating any sort of policy I mean it's growing you know far past the law schools but it's all very much uh legally uh based and separate from concerns over mismatch or how much racial preferences for what reason is okay or even faculty hiring you know the problem of bias ideological bias in faculty hiring these are all valid things to discuss but this Dei thing that enforces this post-modern racialist uh ideology right the the ibram Kennedy the only way to be uh to stop racism is to be actively anti-racist taking race into account in in everything you do it's the Horseshoe Theory right where the the the Ibrahim Kennedy critical theorists meet with the the neo-nazis that all are all about identity uh politics and there's nothing hidden in this agenda the National Association of diversity officers in higher education yes there is such a trade group it arose I think originally in 2006 and really exploded again under covid when nothing nobody had anything better to do than sit on zooms and and talk about uh racial and other identitarian uh Grievances and they said they described themselves as a leading voice in the fight for social justice creating a framework for diversity officers to advance anti-racism strategies particularly anti-black racism at their respective institutions of higher education now imagine if you kind of have a classically liberal outlook on uh race you you want things to be colorblind you want people to treat everyone equally without regard to race that kind of attitude is uh is called racist I'm not paraphrasing I'm not making it up this is you know if you look at their training documents what they've written the theorists and all that that is uh that's not okay and uh in in December of 2021 accordingly the the council for higher education accreditation accreditation is an important part of this implemented its first Dei requirements uh so now for this one organization there are other accreditors uh the organization institutions have to demonstrate that they manifest a commitment to Dei and what is Dei right we keep talking about we use This Acronym and we think it's bad um uh you know in on its face the the words are great you know who could object to having people with different backgrounds different perspectives it enriches it prevents group think or or Equity fairness you want people to be treated fairly and equally uh or inclusion you want people to feel welcome on their job on campus what have you right but it's been perverted in a norwellian way to essentially mean the opposite to mean discrimination uh indoctrination uh and um an exclusion um uh you know if you have those traditional liberal classical liberal beliefs uh you are uh you know that's anathema to this Theory and You by definition cannot be a Dei office because it's not a ideology uh neutral uh perspective um and so you know you know to be clear in the you know if we want to talk about remedies to all this stuff it's it's not about tearing down um civil rights laws or anything like that it's it's to promote equal opportunity we we have to enforce civil rights laws and so the the model legislation that I developed with Chris Ruffo and um uh uh uh uh the Goldwater Institute Andrew beinberger um talks about getting rid of Dei bureaucracies but keeping lawyers and their staffs that deal with compliance with Title IX or the Americans with this Disabilities Act or uh the anti-racial Discrimination Provisions in state and federal law that all is fine the stuff that you know gen xers all of us here I think except Grano are our Gen X or maybe chance I guess who's off screen what we recognize from what when we were in college all that stuff is is fine what's problematic is these new centers that um that are against things like free speech due process equality of opportunity you know what we see that makes the news the speaker shutdowns right at Stanford and Yale the persecution of Faculty whether my experience at Georgetown or Amy wax at Penn or uh if you saw a few weeks ago there was an op-ed in the Wall Street Journal by an Ohio Northern law professor Scott Gerber he's not even being told told what he's being investigated and and you know trying to be separated for to this day it's a kafka-esque thing uh you know that's above the the uh the water line below the water line is this illiberal ideology that is largely race-based but has other identitarian uh aspects now I'll conclude with this if if we were having this presentation six nine months ago uh I'd be tremendously pessimistic I'd say you know even at a society writ large people are waking up as it were to some of these uh negative Trends uh and pushing back the pendulum swinging green shoots Academia has a lost cause you know we're past a a critical point and there's no turning back but as we've discovered in in recent weeks and months in part due to the work of Nas fellow John Saylor does wonderful work exposing and shaming some of these institutional practices some of these structures are to mix metaphors um temkin Villages guarded by Paper Tigers so most of these Deans and presidents and provosts are not woke radicals they're not social justice Warriors they're careers bureaucrats and they respond to basic cost-benefit analysis in the same way that's LED them to climb the greasy pole by appeasing the squeaky wheel and trying not to make waves and trying to raise money and keep alumni happy and all that well if they're shamed if they're shown that you know in that to National audiences that biologists at Texas Tech are being hired for diversity statements rather than how well they run a lab that's a problem or last week or the week before the president University of Wisconsin testified in that state legislature saying that they were ending hiring by diversity statements so I do have some uh hope that I'm less pessimistic I wouldn't go so far as to say that I'm optimistic but I'm less pessimistic that perhaps uh uh there there is some uh hope to be had but this is an exit essential threat again not about what is taught what departments we have or courses are taught faculty hiring is a separate issue I mean will be a huge Improvement just to get rid of these Dei bureaucracies without touching faculty at all and just having faculty governance the way that higher ed has been done since time immemorial and then we can go back to the more straightforward fights that we're used to about affirmative action and conservatives complaining that they're not represented on uh you know in teaching and and all of that but the the larger underlying threat is the the illiberal tendency which as I said in particular in light of George Floyd and the racial Reckoning of the last decade is focused on race right well thank you Alia um I want to come back to your point on the ill liberal ideology and discuss that a little bit more but first let's turn to some of the questions because we got a number of really good questions from the audience and of course you still have time to share questions as we go into this q a period for the next uh 25 30 minutes but really following up all three of you spoke about the likelihood of circumvention was Jonathan's uh term for it in different ways that you expect College uh administrators bureaucrats admissions officers Etc to circumvent any possible Supreme Court decision in students or Fair admissions so one of the questions that people have asked and I'll kind of combine a couple is just right what to do about that what are the consequences for colleges that break the law if we can put it that boldly or are really stretching things to circumvent the law how can can we enforce to use Ilias term there the existing laws or this potential new decision and what gives you any reason to hope that the entrenched bureaucracies that are even more entrenched over the last decade with these very powerful incentives both moral and material as Rhino put it what gives you hope that you could from outside you know and it's interesting that our panel here is all folks who are currently at least outside of the Academy I guess Rhino as a student you're you're inside in a sort of liminal state but what gives us hope that from outside you can change such powerful institutional forces so I'll open that up to any of the three of you or all okay well what I've learned in researching this book and thinking about these things and talking to people is that there's a limited amount that you can do to to change things from the inside just arguing to uh you know Deans and presidents you know this is the right thing to do uphold your values of XYZ that you often even have that are you know written very well on paper and pixels but but are enforced and not enforced uh in practice um that's not enough because they want to you know not get boycotted not be the subject of national news and so forth um and so you have to apply what I've called exogenous shocks and that can come from newspaper articles and media coverage it can come from alumni pressure and you don't have this is what I tell alumni groups you don't have to be like a 10 million dollar donor to get the president's ear you know these folks are Savvy and they know that every Alum represents you know 10 others who think like them or a dollar amount that's 10 times or or what have you um you know trustees there needs to be a reform of Trustees so it's not just people that want to get good football tickets and otherwise rubber stamp whatever the administration does employers uh you know judges about 14 judges have been asked they're not going to be hiring prospectively from Yale and Stanford until they show Improvement in their in their speech cultures um other kinds of employers you know look the the people were shouting at judge Duncan at Stanford a federal appellate judge right Senate confirmed they were shouting we hope your daughters get raped uh is does an employer uh how no matter how you know Progressive that employer is want people like that bar associations again I'm more familiar with the the legal front but Texas has already changed and other bars are in the process of adding to their character and fitness review to see if someone's ever you know disrupted or done something else that would be uh you know not not reflective of behavior of someone who's an officer of the law um you know so there can and legislation of course for public universities states are the Masters in different ways in different different states and so they can control again not what professors say inside the class their first amendment issues there but what kind of bureaucracies are there what gets funded uh things like that at the federal level I testified before Congress about a month ago uh saying there are already strings on federal funds now I think most of what the federal government does in education is unconstitutional but if it's going to do it attach strings that enforce various norms and values as much as you attach Norms of whether it's accounting practices for what you do with these Federal monies or non-discrimination so there there's room for for Congress to pressure as well so there's different you know I'm I'm for an all of the above kind of uh pressure point solution all right thank you I agree and I agree on the First Amendment issue as well I think what's happening in state legislation with uh undermining Dei offices is really important I mean what's going on in Florida the proposals of Texas and elsewhere right I think if we're thinking big picture here about the consequences for universities I think it will be when State legislatures say that they're no longer going to send public money to uh fund Dei offices um I would add two just quickly so you know not being an attorney I don't know what sort of cases are going to be brought against them but I'll say this that if if we are looking long term here right I would agree with Ilia that doing reform from the inside of some of these institutions is going to be very hard so let's build new right you've got very small attempts like thales Academy in North Carolina uh which I think is important you've got you know University of Austin um there's work being done in Savannah on a new institution as well I mean yeah we're going to have to build new institutions that are committed to the idea of free speech you probably seen in the news about in North Carolina they want to create a new you know department or course of study based on the idea of free speech and original principles Ohio is now talking about this as well so you know I think this this concept here that we're going to have to build again um is something that's that's going to gather Steam and I think that given the returns at least early on of professors who I've seen unhappy with where they are and going to these places looking for you know a new place where they don't have to look over their shoulder every time for a bias response team to come breathing down their neck I think that there's some problems here yeah the Rando do you want to add anything on what can be done Lennon's question for us here probably just add one minor point which is that I first see the next several years involving continuous litigation trying to show that these schools are still discriminating against white and Asian American students and while that might seem like a tall task at first you know we realize how closely these institutions guard their admissions data for example a lot of what came out at the district court level in students for fair admissions in The District Court of Massachusetts was that many of these of the administrators at Harvard were not all that subtle in discriminating against Asian American students you know they have conversations about this with their fellow admissions staff they have email exchanges that are quite easy to receive so I think as more evidence comes to light that they're considering standardized task scores for example for certain students from particular ethnic and racial backgrounds and not students from others that'll show that these workarounds are still intended to have sort of you know just discriminatory intent sort of disparate impact on white and Asian students specifically and so I foresee maybe as much as eight to ten years of litigation following this decision but I do think that litigation will show perhaps you know the court comes back and says in a manner similar to Brown you know we meant what we said the first time so I first see a way to combat potential circumvention by schools uh just continuous litigation on the subject thank you so we had a couple of questions that go beyond the scope of higher education and point out that higher education is Downstream of course from K-12 education and also is affected by it's not an island it's a part of our larger culture and National Fabric and so some of the questions were all right are we really talking about the right thing don't we need to be talking about basically K-12 education it's dismal state that creates students who are not prepared for higher education standards I don't need to be talking about culture if we're speaking specifically in affirmative action or diversity of black students from black families do we need to be talking about the culture of black families and black communities so any comments or thoughts from panelists on these questions about the environment or factors beyond uh University administrations that we should be talking about here well I'm a simple constitutional lawyers so these these broader questions are you know far above my pay grade although I will say that as as reinu mentioned and I think as Jonathan alluded to as well uh this decision if it goes as people are expecting to throw out uh racial preferences all together um will be treated we'll be welcomed by the American public I mean Twitter is going to explode legal Elites are going to uh have their heads blow up uh but the country as a whole including majorities of Democrats and and racial minorities and any other demographic uh are going to welcome this it's it's not going to be kind of a 50 50 issue or an activism generating issue as much as abortion say was a year ago um and so the the acceptance by Society writ large is going to be very different and therefore when institutions of higher education engage in massive resistance and I choose those words advisedly echoing uh what they did in in response to desegregation in the 50s and 60s uh Society writ large is not going to like it and so um you know whether it's litigation or just or or political pressure from from public schools um there's I think going to be more vigilance and I hope uh that uh higher ed administrators uh some of them are smart enough to realize that they can't just do the same thing with with pretext uh and I hope they have enough good faith to you know experiment with socioeconomic Geographic other other kinds of true diversity uh that will likely uh pass whatever standard the Supreme Court sets out Jonathan or Rainer yeah I mean I I agree I mean K-12 is really my main area of focus and you know we can spend the next 30 minutes or the rest of the year really lamenting right the different problems with K-12 from Civics and history scores that were just released you know a couple of weeks ago that set us back to the 1990s to the math and reading scores and and on and on so um you know Elia mentioned the paper by Jay uh diversity University well he released one shortly after that called Equity Elementary that measured the number of Dei staff in case large K-12 districts around the country so it's not just a phenomenon a higher education it's also in K-12 and so I think part of it is going to be exposing and recognizing that yes critical race theory is being applied in K-12 schools and yes it is racist it is discriminatory ultimately and so we have to be very very um uh forthright and Unapologetic in saying that there is a concerted effort here to reintroduce discrimination into American society and when they do that in K-12 schools you are setting up the same sort of um uh explosive environment that we've seen in higher ed and one of the chapters in my book Splinter talks about how when you watch the Youtube videos of the shout Downs on campuses right that University of Arizona I mean pick your school right Evergreen and on and on the students are parroting they are they're regurgitating the words and the terms from critical race there that they've been taught over and over again in these classes right decolonization intersectionality white privilege you know on on down the list it's like reading you know the the Little Red Book of critical race Theory the key writings that form the movement right and so when this is introduced in K-12 you're going to generate the same kinds of things and so I think we've um you know now these conversations about the creation of classical charter schools and education savings accounts available to all students in the state so parents can choose how where the children learn it really takes on right new urgency here because the school Choice Movement for years and years and years rightfully so talked about the importance of school choice because the K-12 system was failing to meet the academic needs right of K-12 students well now things have shifted a little bit we need options for parents because their values are not being represented in Community Schools now we're talking about cultural issues here where parents ideas and values and beliefs are being frankly trodden upon by institutions that are beholden to this new work Orthodoxy so you know we have both academic you know sort of achievement related issues here in the school Choice Movement with the added fuel I would say of preserving a pluralist society where different ideas are preserved and discussed and available so both of these things happening at the same time thanks Rando do you want to wade into the larger K-12 or cultural debates I'll I'll try my best so while I focus primarily on racial preferences in a higher ed I do study just meritocracy more broadly specifically exam schools throughout the country and to Jonathan's point about how this ideology has vastly infiltrated K through 12. I think when you look consider the workarounds that colleges and universities are likely to employ based on these trainings that they're doing the basis is an assault on traditional Notions of meritocracy combined with the quite racist assumption that black and Latino students cannot be held to the same standard as Asian-American and white students and that's factually wrong and again an attack on meritocracy so what you're seeing in K through 12 as you're seeing the acceptance of Dei and affirmative action and potential workarounds that attack Merit like eliminating standardized test scores AP courses you name it in higher ed you're seeing as similar Movement try to do away with merit-based admissions at selective high schools like Lowell in San Francisco stuyvescent box science in New York Boston Latin School in Boston schools in Philadelphia Thomas Jefferson and Fairfax County Virginia you name it and what these the Dei Advocates don't realize is many of those students are from marginalized backgrounds or from immigrant families and they look at these K-12 programs so I'm talking about exam schools but then you have screening or gifted and talented programs that have been a Lifeline for very many under privileged racial minority children in these areas so this overall attack on Merit and higher ed is being translated to attacks on Merit in K-12 in selective exam schools and the notion that you need to do this in order to help underrepresented minority children is factually incorrect and it's in fact going to harm them in the long run and you know I think everybody on this on this call can can agree at least the panelists that affirmative action is a Band-Aid and it's abandoned way too too late it's not going to stop the bleeding that's already happened and the way in fact you make that worse is by trying to get rid of gifted and talented other selective exam school which is the notion of meritocracy in K-12 that you're seeing California for example try to do away with teaching algebra uh in school so it's really you know affirmative action is kind of the end point but all of this is starting much earlier on and is not in fact going to to solve the problem in any way all right thank you well let's let's take up that point because I think you raised something interesting there that is part of a number of the questions that audience members have asked but it's also been in some of the comments that the U.S panelists have made and that is well I'll take it from the perspective of Ilias comments that is affirmative action something fundamentally different than what we're dealing with now with the diversity Equity inclusion movement um there are those who argue that no there's a kind of continuity uh a moral continuity among these uh things even though in practice they take different forms and so I guess that the basic question would be on the moral point that you raised uh Rhino they're this moral imperative of compensatory or restorative justice because if that's correct if if it's right to uh make up for past Rons through present discrimination then the number of Dei officers the millions or billions of dollars spent can be justified right all right well it takes a lot of work uh to do this one can even justify certain restrictions on speech and the like as saying there's a true moral good being served by these things doesn't mean that one should restrict speech in every way in every shape but we can make reason judgments about those things and so I guess when I was reflecting on this panel and the upcoming decision I was kind of wondering why aren't conservatives jubilant right I know it's not part of the conservative character to jubilate um Allison know that you know people have been burned before or and even though we don't have a Justice Kennedy on the court right now it's still possible that you know a sort of anti-rabbit could be pulled out of the Hat the last minute um but beyond those I think qualities of conservativism that are natural as it were uh it does strike me that people recognize that maybe there is a fundamental disagreement on moral terms here that has emerged in Elite opinion that no longer are people agreeing that equality is the end and it's just a matter of how do we get there right what steps do we need to take that maybe there is a fundamental difference about the end some saying it should be equality they're saying no no in-group preferences may be more important than equality at this point uh and this again goes back to some of the things Ilya shared about critical theory um so I guess that's a long-winded way of saying you know are we talking about um the same thing when we talk about affirmative action and diversity Dei are we talking about and are we facing in this part of our challenge facing that there's a fundamental disagreement about that moral imperative especially within our Elite opinion if not you know the American public as a whole may may disagree with this but the people who shape education media government are we really facing a fundamental disagreement there and that's part of what has conservatives still worried even in the face of a possibly a positive decision well I'll just jump in real quickly just to say that there is a chapter in the book critical race Theory the key writings that form a movement on affirmative action I mean it's a pillar of critical race Theory so make no mistake here right and I would say that it absolutely is a moral question I mean Gunner murdaugh wrote about this in the 1940s that these are the things that Americans on you know as they have sleepless nights about what's going on with race in the United States and how it conflicts with our founding ideals of freedom and opportunity you know how are we going to rectify you know these these two things and it was ultimately the fact that they cannot coexist you cannot have discrimination coexist with our founding ideals neither before the Civil Rights but Nora Rights Movement nor after and so I think that this is very much a moral question about the value of the individual about how communities are going to function together and so I think that's why you know even if we have a ruling that uh sets a ban on racial preferences that if we have this element in society pushing these Marxist ideals right about um you know now applying Marxism to culture and discrimination and Candy Rob and D'Angelo Etc right that these are the things in culture that we have to have very a truthful and honest discussions about what are the ultimate outcomes that they're after and I when I would say that it is you you made a great turn of phrase there and I thought you were going to say because you use the word equality we're talking about equality and I thought you're going to say they're moving from equality and I thought you were going to say Equity after that because that's what they're moving to right it's not equality it's equity which by the definition of the woke Orthodoxy is equal outcomes right that's what they say that they're pushing right which is this you know the idea that you move around the stools that everyone's standing on but what really you're doing is you're taking things from people who have earned it and giving it to those uh who have made different choices so you know I I think this concept of America's national identity and these shared ideas of who we are in the shoulders on which we stand is very important to restore or right it's very important for us to get back to a recognition that the freedom and the opportunity and the Liberty that was in Wisconsin you know the Declaration and the Constitution they do belong to us they all of us right no matter where you're from or the color of your skin that's the American dream that we need to prepare the Next Generation for and that's what's being lost that's what's that's what's Stripped Away through uh the Resurgence of critical race Theory mainu I see you nodding as Jonathan speaking you want to add on to what he said sure I have two points on this the first is that even the court in the initial Baki decision in 1978 acknowledge this dilemma between the ethos of the United States and its founding and the harm that black Americans specifically had experienced as a result of slavery and Jim Crow and were currently in the midst of experiencing in the 1970s so on that point I'd like to say though the cork was very careful in differentiating between rectifying societal discrimination writ large and discrimination perpetuated against a particular individual and the court on a moral level in that notion found that while rectifying discrimination against an individual is consistent with the ethos of the United States based around individualism you know you're not at stake or responsible for the sins committed by your ancestors for example rectifying societal discrimination through the use of racial preferences and in doing so discriminating against other groups Rick large was completely against the founding of the United States so I agree that there is that moral dilemma but there is a way to differentiate whether you're looking at group rights uh in general or whether you're looking at discrimination perpetuated by an individual and another thing that I'll say to that is you have to look at timing as well so in terms of restorative or compensatory Justice being a rationale for racial preferences or Dei we're at a very different different place in 2023 than we as a country were at in the 1960s and 1970s perhaps you know there was a need for some sort of racial preference or affirmative action to Aid black Americans specifically in the late 1960s and the 1970s as a result of you know Jim Crow for example but that does not necessarily exist today and then the last point that I'll make about this is so you have that the timing has has been done away with and there's this differentiation between discrimination against an individual in society uh societal discrimination writ large but we're also no longer in a situation in the United States where it's primarily blacks and primarily whites and this is the point John scratchney makes in his book The Minority Rights Revolution and the expansion of affirmative action policy to include other underrepresented minority groups and the effects it could have and so can you make a similar just you know societal discrimination claim against other racial minority groups and the last thing I'll say is that Asian Americans the sort of meaningless racial category incorporating dozens of different origin groups are all perceived to be you know Elites in American society and as a result you have poor Vietnamese children poor Chinese children poor Bangladeshi children for example being discriminated against in higher education admissions because this sort of you know restorative justice black white rationale is still being applied and it doesn't necessarily make sense today and so those are ways in which I think you can differentiate in terms of morality that the framework as applied in the 1970s can't necessarily the same case can't necessarily be made today things Moreno uh thank you and Ilya on to you because I I think I kind of use your comment as the frame for this where you said in fact affirmative action that's okay right this is something different but I didn't say it's okay I I think you said actually affirmative action is fine is what I wrote down but maybe if you want to revise that or put something different out there yeah uh no I mean the you know well anyway I'll I'll set that aside but the um we've been debating affirmative action and its meaning and how to deal with uh the legacy of slavery and Jim Crow for decades and decades and decades that's not something new purveyors of Dei say that what they're bringing to the table is just to coinc a continuation of those discussions about racial Justice that have be you know maybe more people have become woke to them uh because of social media and the highlighting of certain uh you know police brutality incidents and and other things um and they say that you know what we're discussing my complaints about Dei offices is no different than you know debates in the 1980s about HUD policy about remedying redlining or uh you know welfare reform battles under the Clinton Administration all the rest of it's part of the same discussion and I don't think so I don't buy that at all because even if racial preferences or a racial spoils system to be more provocative is illiberal uh it's not it's kind of this traditional debate discussion uh over uh how to remedy America's you know racial past uh let's just say whereas the rise of Dei first and higher ed and then migrating to Corporate America and Beyond really started as I said you know 10 years ago maybe that's when you start having you know there were no before before uh you know early 2010s with with a couple of Exceptions there really weren't Vice provosts associate Deans and so forth for diversity Equity uh those sorts of things you had compliance officers for affirmative action and civil rights laws but you didn't have uh these structures to enforce uh concept these posts post-modern concepts of structural systemic racism that all rules are imbued are suspect because they're imbued with our past which is suspect and uh and and therefore the the Abram can be uh insight as it were that any uh racial disparity and outcome is as Prima fascia evidence of racism in the input and all of these sorts of things I think all of that is very different than our traditional discussions about how to deal with uh socioeconomic disadvantage how much of it is racial how much therefore our racial preferences and of what kind are Justified is it all about access and Outreach that all traditional stuff is just very different from what you see in these nefarious uh diversocrats uh uh uh in in higher ed so do you think affirmative action is fine depends what you mean by that uh if if you mean you know making sure that uh people have uh Opera talented kids have opportunities no matter how they're raised and where they come from then yeah I'm I'm for that if it's giving people um uh thumb on the scale for um immutable characteristics and downgrading others uh that's uh that that's assorted business uh to quote chief justice Roberts in one of his race cases so let me throw out then uh along those lines one point that was raised in a number of comments would you all be in favor of class-based income based first generation based uh admissions policies I'll put it this way as as a double immigrant myself now granted you know from the Soviet Union my parents were both uh Engineers so I had the experience of being a economically underprivileged but you know wealthy in terms of educational uh background and parents who cared about that uh and pushed me and and all of that um I I'd say the the goal and again I'm a constitutional lawyer I'm not an education policy person primarily the I would want admissions officers to look at potential and try to determine potential and so you look at the Diamonds in the Rough and you look at the kids who went to high school that didn't offer a full plethora of AP classes and 800 extracurriculars and you know subsidized spring break trips to uh you know build irrigation ditches in Guatemala and burnish your resume in all sorts of ways but look at you know look at writing samples look at passion look at all of these it's you know it's not it's an art but it's not purely just putting your thumb on the scale of you know anyone who's a parent have you know for every ten thousand dollars of Delta of income you get X percent of benefit and I don't think it's anything mechanical like that and their judgment calls certainly to be made but I think I'd want admissions officers uh to to look at potential and the lower you go so admissions to a high school uh has more I think uh uh a discretion of that kind than addition to college who has more than admission to to to law school because at a certain point you know stuff is is baked in and we might not like what's gone on in the past but the place to remedy you know bad K-12 schools is not in medical school admissions Renu or Jonathan want to comment on that possibility of maybe bending the principle of individual uh the focus on the individual to maybe focus on class income first generation I think while I I largely agree with what Ilya said and I think you know at the end of the day College admissions should be focused on Merit and it doesn't necessarily have to be merits quickly defined in terms of academics you know athletic Merit Merit in the Arts all of these are are valid in terms of higher education but if there is some sort of impetus you know and I've written about this before the possibility of an admissions tip based on socioeconomic status what's interesting is that this is in fact uh Was a Race neutral alternative that was put forth by students for fair admissions in their briefed the Supreme Court and at an earlier levels of litigation as a way to still maintain diversity so I think like unless the court completely dismantles this diversity is a compelling interest diversity rationale and it does require schools to have some sort of race neutral way to uphold this kind of legal fiction uh one way to achieve that would be a tip based on socioeconomic status if schools are required to do that and what's interesting is originally in Baki and also in the case prior to Baki that the court didn't really address on the merits you know defunis uh I think 73 I'm not sure right a few years before Baki uh the programs the affirmative action programs in that case and also in the initial iteration of the Baki litigation involved and admissions tip based on quote disadvantage status and they actually included socioeconomic disadvantage in that so affirmative action has also in some situations Incorporated socioeconomic disadvantage so I think if you are still required based on the Court's decision to have a race neutral alternative to further this this compelling interest in diversity a way to do that is a tip on socioeconomic status and I'll end with Clarence Thomas when asked about this has has said before you know people have asked him why are you all right with perhaps a socioeconomic benefit but not a race-based benefit and he said like simply the law doesn't prohibit a socioeconomic benefit so that is one race neutral alternative thank you Jonathan I like what Elia said a moment ago that uh Medical School admission is not the place to deal with you know just disparities at the K-12 the K-12 level I mean I I think if we're if we believe in when we're confident in the mismatch research it it you know doesn't matter what the you know what characteristic we're talking about we're talking about preparation and Merit and whether students have are ready to take uh on the load that they're going to be uh with whatever school that they're matched with so um you know obviously we should be helping those who have less right we should be helping those um uh students in need we should be doing it at the K-12 level through the uh provision of better options through closing traditionally failing schools I mean we should be doing these things um but I don't think that by giving someone you know a benefit and then sending sending them to a place that they're not prepared to compete it's not going to help them very quickly and this was something I was going to you know I'll I think we had a time for a closing statement but one of the things I was going to say is that you know a student uh had testimony at that U.S Commission on civil rights here from 06 talked about how he didn't like being placed in a law school that where he wasn't ready to be right it hurt his academic prospects which then hurt his job prospects which set him you know set him back and so it's also it's also a vicious cycle because another aspect of mismatch or consequence is that members of racial minorities tend to Cluster in the lower quartile and quintile of GPA at those schools and that breeds resentment that uh oh maybe there is something to this critique of structural racism yeah exactly and so you're we want to be perpetuating sort of a loss of confidence right among these students too yeah well great well I think that's a a good place for us to begin to end uh with the concept that maybe the way to stop discriminating on the basis of race is to stop discriminating on the basis of races somebody said um but I I do want to give you time to have uh that's why I have so much uh hope uh dare I say confidence in the outcome of this case because if John Roberts is the so-called squish well he's the one who uh authored uh that line and and others and so um you know I don't even think that he'd be the sixth vote here he's probably the fifth well good so let's let's end on a hopeful note I want you each to have a minute or so to offer a closing comment before we do that I want to thank the audience for listening in to this uh webinar from the National Association of Scholars um and before we go to uh the panelists closing comments I just want to say uh a couple of things about how you can help Nas um the first is that if you're listening to this and you're not an already a member of Nas what are you doing here um no more seriously why don't you join um it's very easy uh to do so and it really does help Nas because we are a member organization and that gives what we do a lot of uh prominence and weight um secondly if you are a member of Nas already or you just want to help out even more please donate and you can easily donate to NAS at nas.org donate you can join at nas.org join so then finally one way to help Nas in addition is to just share this webinar you're going to get a link of it sent to your web to your email that you signed up with so share it with people who might be interested in this topic whether within higher education or without because I think we've had a lot of great suggestions from panelists about what to do and a lot of probing discussion of some of the underlying challenges um here so finally if you asked a question and it didn't get answered um we will certainly forward it to the panelists there are a lot of good questions here that we just don't have time for right now and that's always that's always the regret of these uh events so but we will forward them to the panelists and and give them a chance to follow up with you so with that said I'll now turn to our speakers let's go on the same order as we did before for a minute or two of closing comments so Jonathan we'll start with you well thank you so much and thank you to the panelists for allowing me to be a part of this and to National Association of Scholars for for the event so let me just quote to something that I alluded to a moment ago so Richard sander whose research I've I've mentioned several times in my remarks he said several studies have found that large racial preferences are directly associated with more negative self-images among the recipients we're not talking about trivial matters acting like snowflakes here we're talking about doubt that will lead to later academic and professional failures so in the usccr's report from its two uh 2006 hearing on racial preferences and the American Bar Association they quoted a student's email who was at the University of Colorado School of Law and he said this I do not believe the University of Colorado School of Law should have admitted me into this school in the first place CU has known year after year decade after decade that under qualified students such as myself consistently fall on the bottom five percent of the class and disproportionately fail the Colorado our exam nevertheless CU has done nothing that effectively helps under qualified students receive grades that fall within the bell curve so you know we've talked about mismatch we've talked about all the various harms that come from this but you are setting students up to fail and if we are authentically if we really want students either from ethnic minority backgrounds from low-income homes from single parent homes whatever right if we want these students to succeed then we need to set them up for for success and doing so by way of racial preferences doesn't do that it causes harm to these kids it sets them up for failure and so we have to be talking about ways uh to get rid of this Dei structure that Elia talked about to deal with this underlying current in the culture that discrimination is appropriate in any form thank you Jonathan well reyno thanks Keith and also to the National Association of Scholars and Jonathan and Ilya for having me participate in this panel today it's been great I just want to end by noting that while this wasn't the subject of my remarks today it's what primarily my research focus on focuses on and it's the adverse effect that this policy has had on Asian American children throughout the country to be told that your personality is negative that if you say you want to be a doctor or you play a string instrument or you talk about your family's immigration story to the U.S and to be told that that makes you less than and that you shouldn't be admitted to an institution of higher education because of that is damaging generations of Asian children throughout the country and so while my remarks and other remarks today focused on the way in which colleges and universities might try to circumvent this decision I just think it's station striking down this policy this lawsuit that has been brought by a group of Asian American children and their families saying you know racial discrimination in any form is wrong a Court ruling in their favor is going to be symbolic not just positively for the country as a whole that opposes this policy but also will tell Asian American children that no you do not deserve to be discriminated against because of your race or ethnicity you deserve equal treatment under the law so I think the Sim the symbolic nature of the Court's potential strike down of this policy is immense and and will provide a lot of Hope to a large group of children throughout the United States thank you reyno Ilya you have the last word well um I'll repeat myself repeating John Roberts that it's assorted business that's divvying us up by race and it's so sorted that the Advent of these Dei structures have actually failed on their own terms if you look at student climate surveys if you look at faculty surveys people are less comfortable being on campus they feel less included they feel less comfortable with racial and ethnic difference and that's understandable because if you again read into this post-modern critical ideology you see that it it accentuates racial tensions because it divides and judge judges People based on those kinds of characteristics so if the goal is to have more true diversity to treat people fairly give everyone equal access and opportunity and make people feel welcome on campus than the then the the best thing you can do is dismantle these these systems and structures Dei not the not the the neutrality of of due process under the law and and equal protection of the laws and and all of that and and look there's still a long way to go before universities return uh to their mission of seeking truth and knowledge and law schools return to their mission of uh teaching the Next Generation uh how to how to how to preserve the rule of law but the battle has been joined but I think the words of a constitutionalist are a good way to end this uh discussion of this very difficult topic so thank you so much uh Ilya ranu Jonathan uh for joining this panel thank you again to those of you who have listened and again thanks to the National Association of Scholars for continuing this fight have a great

Channel: National Association of Scholars

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Length: 90min 0sec (5400 seconds)

Published: Wed May 24 2023