Transcript - "Education, Equality and the Supreme Court"
October 19, 2023 -- Special Event + CRG Co-sponsored Event
Listen to "Education, Equality and the Supreme Court".
LETI VOLPP: Hello everybody. Welcome. If you haven't gotten food please help yourself at that side of the room.
I want to welcome you to today's event, “Education, Equality, and the Supreme Court,” which is brought to you by the Center of Race and Gender and the Center on Race, Sexuality and Culture.
I'm Leti Volpp, the Robert D. and Leslie-Kay Raven Professor of Law and Access to Justice here at the law school and also the Director at the Center for Race and Gender.
And let’s begin with a land acknowledgment. We recognize that UC Berkeley sits on the territory of xučyun (Huichin), the original landscape of the Chochenyo speaking Ohlone people, the successors of the sovereign Verona Band of Alameda County.
This region continues to be of great importance to the Muwekma Ohlone Tribe and other familial descendants of the Verona Band. We recognize that every member of the Berkeley community has, and continues to benefit from, the use and occupation of this land, since the institution’s founding in 1868. Consistent with our values of community, inclusion and diversity, we have a responsibility to acknowledge and make visible the university’s relationship to Native peoples.
As members of the Berkeley Graduate Division community, it is vitally important that we not only recognize the history of the land on which we stand, but also, we recognize that the Muwekma Ohlone people are alive and flourishing members of the Berkeley and broader Bay Area communities today.
And to build on this verbal acknowledgment at the Center of Race and Gender we pay the Shumi Land Tax as a small way to contribute.
I also want to acknowledge that we are in a terrible work crisis and we’re mourning the loss of many lives, and we're all living in a state of anxiety.
As such, I am very grateful for this audience and also for this incredible lineup of speakers, some of which some of them have traveled from afar for today's discussion.
So I'm going to turn the podium over to my brilliant co-organizer and colleague Professor Russell Robinson, who is the Walter Perry Johnson Professor of Law, and the Faculty Director of the Center on Race, Sexuality and Culture, who will be moderating today's event.
Thank you.
RUSSELL ROBINSON: Hi, everybody. Thank you for coming out. In a very warm day.
Thank you, Leti, for that lovely introduction and it's always a treat to co-organize with Leti. We’ve co-organized events since 2020, maybe even before that, every year. So it's a great tradition that we have going on with our centers. And Jonathan, also a wonderful partner organizing this. So thank you both for that.
I want to thank, before I forget, forget wonderful organizers Caroline Chang, Ariana Ceja, who are fantastic. And we just we couldn't. None of this would work without you guys, you're amazing. We're so happy for your support and help.
I'm going to give very concise bios of our speakers because I want to maximize the time that we have to actually hear from them. And if you have questions, please, we're going to have note cards that will be circulated, so put them on these note cards and pass them. I will then get the note cards in during the Q&A period. I'll read some of the questions that people have submitted.
And for those who are online, we have somebody who's monitoring the chat and so they will also send me the questions from online.
So our speakers are incredibly accomplished. You could probably spend an hour just reading all of their bios, but you didn't come for that. So again, I'm just going to get make it really concise
So going in order from my left Tolani Britton is Associate Professor, School of Education, UC Berkeley Graduate School of Education. And prior to earning her degree in quantitative policy analysis like that scares me as a professor went to law school. So I didn't have to do math in education at the Harvard Graduate School of Education, Professor Britton worked as a high school math teacher and college counselor in New York City public schools and as a policy analyst with the organization Economic Cooperation and development in Paris. Professor Britton, with a 2003 2028 NSF Career Award.
And then to her left is Professor Cary Franklin, who is the McDonald/Wright Chair of Law and Faculty Director at the Williams Institute, the leading think tank on sexual orientation, gender identity on the law and also the faculty. And she is also the Faculty Director, two faculty director positions I don't know how she does it, at the Center on Reproductive Health, Law and Policy, all at UCLA School of Law Professor. Previously was professor of law at University of Texas and visiting Professor of Law at Yale Law School.
And then Professor Jonathan Glater is Professor of Law, Associate Dean JD, Curriculum & Teaching, Faculty Director of the Center for Consumer Law and Economic Justice. All of our folks have lots of jobs here at UC Berkeley, who was previously a professor of law at the University of California at Los Angeles and before that at UC Irvine. He has helped establish the student Loan Law Initiative, A partnership with student borrower protection center dedicated to research and student debt, and he is a cherished colleague here at Berkeley.
And then my mentor and friend from back in the old days when I was at UCLA Professor Jerry Kang also has lots of titles. Distinguished Professor of Law, Distinguished Professor of Asian American Studies, Inaugural Korea Times Chair, founding Vice Chancellor for Equity and Inclusion for five years at UCLA School of Law. An inspiring scholar and teacher has received UCLA's highest recognition, The EBA art of Teaching Distinguished Teaching Award.
OK, so welcome our panelists.
(AUDIENCE CLAPPING)
I'm just going to say a little bit about the inspiration for the program and my students. So many of my students are in the room and we'll be talking about this more after class, but the inspiration was an eventful and for many of us, distressing term at the US Supreme Court. On the heels of overturning Roe v. Wade. Last year, the court rejected affirmative action despite 45 years of precedent supporting it.
So just let me say. A bit about how the court before this most recent decision constrained the doctrinal terms of the Affirmative Act the Affirmative Action debate long before this recent decision, and I think this would sort of lay a foundation for comments by Jerry and Jonathan, in particular.
In the Bakke case from 1978, Justice Powell dismissed out of hand many potential justifications for affirmative action, including what he called societal discrimination. In its place he anointed diversity as the central justification for race-conscious admissions policy.
Educational institutions took note, and diversity became the central rationale and rhetoric, not just in education but also in employment. In 2003, Justice O'Connor wrote the majority opinion Grutter v. Bollinger, which endorsed and extended justice powers, opinion and body. Once again, diversity reign.
This convergence on diversity means the questions of structural and institutional racism, implicit bias and white supremacy are sidelined. They are legally irrelevant in much of the doctrinal analysis.
The central question of discrimination in such precedents is whether educational policies unduly harm white students and, more recently, Asian American students. So I just wanted to mark again that what I see is that a a diverse between the popular conversation today after the police murder of George Floyd and the racial uprising and the.
The understanding of anti-blackness as foundational to the conversation and doctrinal analysis that generally revolves around the interest of white students, right. So some sort of mark the gap between where the culture is and where the court is.
And at the end, I've told the panelists this I'm going to ask for some like action items in terms of like, what could we actually do to try to make change. It's a big ask, but I think that they're really smart and will have some things to offer us.
So with that, the order we're going to go in. Is written down. I think we're starting with is Jerry, and then Jonathan and then Tolani and then Cary.
JERRY KANG: All right. Thank you so much for. Having me here, I think. I'm supposed to only talk about 8 minutes.
I’m just going to go fast. This is a smart audience. So let's go.
There's two things that I probably know something about. One is Asian Americans and 2nd is implicit bias. So I'll stay in my wheelhouse.
Number one Asian Americans, as you probably know in the SFFA case, Asian Americans are marked as the I don't. Know the virtuous victims of what Sumi Cho called Racial mascot, and so Ed Bloom and a bunch of people who fund that organization made very clear that by foregrounding the narrative of poor Asian Americans like, you know, yeah.
You locked us. We're the model minority if we're actually suffering from affirmative action. Then you get a lot of concern, it seems kind of wrong.
And I'm going to unpack that. I want to try to suggest the following. One of you and I may disagree about the pluses and minuses of affirmative action. Like maybe this is a self-selected audience everyone loves.
It turns out I talk to a lot of people and I'm OK with the fact that we might have different views about the pluses and minuses. Utilitarian speaking, as well as rights. Discourse about race-conscious affirmative action began. We should all agree that discrimination against Asian Americans isn't good.
So let's start with that agreement, discrimination against Asian Americans -- Not a good thing. We've done that before. It still continues. Not a good thing.
The challenge is that whenever you say discrimination is bad. That's a defining. The more loss more it turns out discrimination is really hard to define.
One way to actually start clear analysis is to be very clear and say, look discrimination always requires as compared to what. And I generally start on race conversion using white people as the comparer because if you treat people worse than white people, you know that's what we mean by discrimination. Historically, that is in what, again in statues like section 1981, our civil rights statutes, white folks are the most favored nation status that we compare ourselves to. So let's just start there.
Are Asian Americans treated worse than white people in elite college admissions? That's an important question that we should all care about.
It turns out to answer that question, as a matter of fact, it's really hard because detecting discrimination is hard. One, even if it's explicit bias like stereotyping, maybe even anonymous people keep it on the down low, so it's hard to detect. We know things.
Worse, if it's about implicit bias, suggesting that it's a little bit subtle, you might not even know that you have it. You know, I just like charismatic, loud, hand waving people and those Asians don't seem to be charismatic loud hand waving people, I don't see the executive presence. I don't see the leadership, therefore I'm not going to give them a high personal rate.
If that's actuated by implicit bias. Super hard to measure. In order to actually see those forms of bias, you just need good technologies. Good tools. You need statistics.
You need to understand what the central limit theorem means so I I joke with. My students, you need CLT for CRT.
You need to understand some math. You also need again ways to measure things are quite subtle. That can't be captured by self-reports things like maybe reaction time, measures which are the ways that we measure implicit bias.
Yes. Long story short, we recognize we need these technologies, including data analysis, and oftentimes that requires us to actually see race in order to detect whether or not discrimination happens.
OK, in the litigation of the SFFA case itself, there's a huge fire at the trial court level, dueling experts. Really smart people.Trying to say whether or not race mattered in the actual outcome. Harvard people who want to add a lot of predictor variables saying. It's not only about let's not just consider GPA test scores, but let's consider personal ratings with your legacy, a whole bunch of stuff.
If you add a lot of variables to predict it turns out there really wasn't a difference between admission rates of white folks and Asian folks.
So Harvard saying look if you consider all these variables and run the multiple regression like race doesn't really matter. Right. So there is no discrimination against Asian Americans.
SFFA says well, you added too many variables because once you add personal ratings, once you add legacy status, it turns out personal ratings themselves are connected with rates, so you can't control the personal ratings. The personal ratings themselves are biased.
It's actually a complex question. Statisticians will call it multicollinearity versus only variable problems, but there's a set of dueling experts.
Ultimately, the trail court goes with the Harvard set of experts. That says no. No, you gotta control for legacy status. So if the Asian also has legacy status, if the Asian also has high personal ratings, then compared to a white person who also has Legacy status, who also has high personal ratings. Then there's no difference.
Now, if there's a reason why fewer Asians have legacy status. If there's a reason why fewer Asians have lower personal ratings. Hey, not my problem.
That's how the analysis goes, the trial court says. Therefore no discrimination.
First Circuit affirms like they say, like maybe there's some baggage with like I don't know, high school teachers who might be giving slightly worse personal ratings. But that's not Harvard's fault. Harvard can't control that. And the First Circuit also says no discrimination against Asian Americans.
The Supreme Court doesn't touch it. Doesn't say anything one way or the other.
So to the extent that Asian Americans, right, who don't want themselves and their children to be discriminated against, think that this case struck down against Asian Americans, the answers no. Officially. All courts that there is no discrimination against Asian Americans.
And the Supreme Court did not reverse that finding.
So just. As a matter of again, technically correct reading. There is no there there.
OK. What does this all mean? And why am I unpacking it in this much detail?
The reason why I'm emphasizing this story is. That if you thought. That legacy status.If you thought that implicit bias actuated discrimination in personal ratings causes Asian Americans to be treated worse than whites.
And there's good reasons to think that it. Turns out also athletic preference. And actually add. Disproportionate preference in paper white people over Asian.
The system is in some ways rigged, right? If you thought that was the reason why Asian Americans are not getting a fair deal, then what would you do? You would get rid of legacy admissions preferences. You would get rid of athletic preferences and you would put guard rails on how personal ratings are actually done.
SFFA did not ask for any of those things.
Instead, it just struck down race-based affirmative action. The fact that SFFA never asked them things I think speaks volumes about what they were really after. It wasn't to end discrimination against Asian Americans, basically white people. That just wasn't it. They just wanted to end race based affirmative action.
The punchline of all this is the following look, I'm a realist.
You should be pissed off if there is discrimination against Asian Americans, and if you think there is not like stone-cold racism, keeping people being pushed in like like subways in Manhattan, like, of course it exists. If you think implicit bias, which reads us as technically confident, but you don't want to have a beer with us, which is what makes us not getting the partnership not because we can't technically do the work, but because you don't think we have the charisma necessary to actually guide mission-critical litigation, or litigation or client.
If you think it was a part of the problem you should be pissed off. It's a thing, really. It is a thing.
But you should not let your outrage against affirmative action.
Excuse me. You should not let outrage. You know, I I slipped myself. You should not let the outrage against discrimination against Asian Americans be converted into a harder question about whether you want race-conscious admissions in a well-tailored program.
The outrage can exist, and you still can decide that for all the same reasons you care about implicit bias. For all the reasons you care about the underlying statistics that demonstrate continuing impacts on equal learning environments that you still want race-conscious admissions to build up.
And equal learning environment for all Asians and otherwise.
They're not mutually exclusive, and those are my personal commitments and that's why I want to underscore. That second part. It's a hard conversation, like when your kids, you know are fighting The Hunger Games. The last thing you want to think about when your kids are fighting the Hunger Games.
I get it. People just want their own to survive. They never think about larger social justice for questions when it's their kids admissions, and they have to blame someone and that sort of kind of kidder themselves, I get that.
That's a hard conversation. Discrimination against Asian Americans is not, and that's the key point I'd like to underscore. Hopefully, we'll have time to unpack, but not right now, because I'll be respectful of time constraints. The only other point that I will try to foreshadow in conversation is where do we go from here?
I know we're going to be talking about alternative forms of action that don't use race-conscious missions. The other line of argument that I want to propose is that there is one last best shot I'm suggesting there's a compelling interest we can still work and that is stopping discrimination right now, driven by a social science game that relies on both implicit bias and identity threat. More later.
JONATHAN GLATER: It's very hard to speak after Professor Kang because he has a lot of charisma and I would have a beer with you.
(Kang and Russell talking.)
JONATHAN GLATER: So I want to back up a little bit because one of the points I want to make is.
The ways in which the court, in particular the conservative justices on the court have used doctrine or selectively ignore production in order to reach outcomes that preserve pre-existing inequality along the lines of race along lines of class.
One question you might be asking yourself is wait, why didn't the court investigate?
I'm going off-script here because you set it up so nicely. Why didn't the court investigate this causation question? There's a causation argument, right? That's implicit in in what Professor Kang said that the the reason that Asian American applicants.
To in particular, that comes up in the Harvard case, Asian American applicants at Harvard may be underrepresented, right?
Is that reason the consideration of race in the upper lacking program that seems like a pretty important causal claim, and it is it is telling that the court doesn't take it up. It is telling that SFFA does not raise that question.
And my argument is doctrinally the Court should have. So you guys have learned about standing, right? And there are really three questions. It's pretty well established that the court is supposed to address when determining whether a party has standing to bring a claim at all.
One of them is, Causation, right? That the thing the plaintiff is complaining about is what caused the harm that the plaintiff says they've suffered.
Another is a tangible injury, in fact, which plaintiffs can establish, and the.
Third one is redress ability. Which in this context means that the plaintiffs have to argue that getting rid of consideration of race and admissions will solve the problem. And the question that Professor Kang has raised is. Is that in fact the case? Right is that in fact the case are we going to see that the change in admission rates that that theory of causation would suggest?
OK, now when I'm back on script because I want to link the reasoning in the affirmative action cases to the reasoning in the student debt case, because again, it's also entrenching inequality along the lines of race and class.
So an easy and alliterative way of referring to the dimensions of the courts doctrinal work hindering access to higher education, like the selective institutions in particular is merit, money and mission.
OK, maybe meaning, but I'll explain what. I mean by merit. What I mean is measuring of applicants to selective institutions and this is squarely what's at issue and that's the SFFA cases. The argument by the plaintiffs and consideration of race means that students with more merit are not getting the access they deserve because they have more merit.
By money, of course, I'm referring to higher education finance, the underlying policy challenge in the student debt cases, right? The fact that students have to borrow to pay the cost of higher education.
And by mission, I'm referring to the mission of the university and admissions at a selective institution is the goal to admit only those most likely to succeed. Is it to admit representative swap of some some declined population.
And then they're questions like these that extend well beyond student admissions, to whom we hire, what we teach. I'm really hard pressed to think of any aspect of college or university operations at this point in time that is not potentially a political controversy, and I'll I'll I'll end with that.
One important point in the affirmative action case is that we haven't touched on yet is the issue of deference to the colleges or universities to decide who to admit, what criteria to use, and deciding who to admit.
Because that deference, that respect for the institutional role is something that the court has at least paid lip service to in the past. So we can see the move by the court and saying that we're not going to allow you to consider race in admissions as also a slight at the independent autonomy of the colleges and universities to make their own decisions to run, to run themselves, to operate the way that they want.
Let me pivot to Biden v. Nebraska, that's the student debt. The Conservative majority on the court found that the executive lacked the statutory authority to waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under Title four of the Higher Education Act of 1965 as the secretary deems necessary in connection with a war or other military operation or national emergency.
Let me focus on the key language wave or modified. We did a discussion panel discussion on this case last year where the question was does waive or modify mean, waive or modify. The Supreme Court has said no, it does not, right? So the secretary does not have authority to waive or modify any regulation, in part because the obligation to repay a student loan is in fact not codified in a statute. Think about that for a moment.
In this way the court ensured that a policy tool intended to promote access to higher education actually serves also to penalize the people who use it, the very intended beneficiaries because of the repayment obligation after the fact. In other words, the obligation to make payments on the student loan is undermining the promise of socioeconomic mobility, that provision of financial assistance is supposed to promote. This is also a racialized move because of who is disproportionately poor, who disproportionately has less well, who disproportionately has to borrow larger amounts of money in order to pay for higher education.
We could also, and maybe we'll talk about this in the Q&A. We can also view the decision in this piece as an opportunity by the Conservative majority to rein in executive authority and to rein in the administrative state right pending the the sales of the Department of Education to act and also to achieve a partisan political objective. Undermining the signature policy initiative of a Democratic administration.
OK. So that's let that's money. Let me talk about mission briefly and then and then I'll wrap up.
I expect in a future case the court is going to continue down this path of undermining institutional autonomy, declining to defer to colleges and universities and other aspects of their operations, such as curricular design, hiring decisions. Think about attacks on diversity, equity, and inclusion statements that are underway in courts now and speaker invitations to campus, for example.
Undermining this institutional authority will put colleges and universities in an uncomfortable spot. We are political actors. We would prefer not to be, right? We want to be neutral. We are pursuing truth. You will hear. You will hear administrative and colleges and universities make this point.
The problem is the pursuit of truth is itself a political objective. And besides that truth is kind of a slippery concept to identify with precision. So I expect more scrutiny of decision-making at colleges and universities.
One way this may happen is questioning of admissions practices after the SFFA decision. If the numbers of black and brown students admitted don't fall, they'll be charges that the defendant institutions are continuing to do what they were doing, but now more covertly.
So in litigation coming out of Virginia. Different context. There's going to be an argument that it raises something that administrators even think about then the use of a race-neutral policy tool is also unconstitutional discrimination, right? This is another area where where the court in the past is in deferential, I expect in in the future they may well not be.
This could benefit traditional plaintiffs in this discrimination suit, so it will be interesting to see whether the conservative.
Justices smooth the path for claimants who allege hitting affirmative action without helping plaintiffs who are alleging old school traditional discrimination, bias and racism in the context of employment, for example.
Let me finish on a hopeful note because Professor Robinson suggested we should offer some some glimmer of hope.
Litigation and media attention to the allocation of the cost of higher education to this question of how we define merit and how we think about the mission of the university and we're supposed to serve?
Are occurring in the open all at the same time. With the the President of I think the President of Vanderbilt University challenging U.S. News and World Rankings, saying we've slipped in the rankings because you changed the definition of institutional merit. So now it's a fight that's out in the open.
That I haven't seen this happen before. Where all three dimensions of university operations are now subject of controversy, and it may mean that these multiple debates over educational access show that we're at an inflection point, a moment where we can actually change how we think about how we justify what we do in ways that promote greater equity and access to educational opportunity.
I mean that is reason to hope.
So I'll stop there before I say something that's more of.
A downer?
(Laughter)
RUSSELL ROBINSON: OK.
TOLANI BRITTON: I will not speak as quickly as my law school colleagues, but I am excited about the opportunity to offer my opening statement so to speak.
In her dissenting opinion on the SFFA case, Justice Ketanji Brown wrote. And our present reality indisputably establishes that such programs and reference to affirmative action programs are still needed for the general public good, because after centuries of state-sanctioned and enacted race discrimination.The aforementioned intergenerational race-based gaps in health, wealth and well-being stubbornly persist.
One of the challenges with respect to affirmative action bans is the reality that affirmative action in college admissions is designed to correct long-standing inequities and access to not only K to 12 schools, but also the real consequences of structural racism with respect to where people can live, the types of food to which they have access, and the health healthcare available to them, as noted by Justice Brown in her dissent.
While an imperfect solution to structural inequities to date, affirmative action is the most effective solution when looking at creating more equitable access to higher education for all students, particularly students who are underrepresented in higher education.
The reasons for the underrepresentation of Black, Latin and Native students is complex. It is certainly the case that the inequities exist prior to college entry.
Work in 2020, for example, by Gary Orfield and Danielle Jarvi, demonstrate how Black, Latino and Native students are in the most segregated K to 12 schools in California with less experienced teachers, less stability, and enrollments due to housing and security of families, and fewer pre-collegiate courses offered in their school when compared to schools serving primarily white and Asian American students in this state.
These are not historical facts they are current realities, In response, taking into account student race and the high school context in which students are learning attempts to facilitate access for the students who actually make it through these secondary schools.
A number of scholars have explored both the impacts of statewide affirmative action bans and the effectiveness of race-neutral policies and college access and success.
So what have been the effects of higher education access? Affirmative action bans, race-based affirmative action bans in states. First thing that's seen is a reduction in the number of underrepresented students and the most selective university following affirmative action bans. Instead, these students are then more likely to enroll in less selective Universities with fewer resources per student.
Not coincidentally, these schools often mirror the K to 12 experiences with respect to access of students underrepresented in higher education.
There are also declines in the proportion of students of color and particular Black, Latinx, and Native students in the state of California, after state affirmative action bans and increased segregation at UC campuses.
Looking across multiple states, and in particular 19 public selective universities across states with affirmative action bans, the share of applicants was 14 percentage points below the shear of high school graduates in the gap in enroll between underrepresented quote UN quote, underrepresented minority high school graduates and representation in the Selective University, 17 percentage points lower in years after ban.
What is of concern is that this trend continues. It doesn't necessarily get better.
Beyond the clients and enrollment, other scholars have found that affirmative action bans led to changes even in the likelihood of application, not just enrollment, particularly for students of color underrepresented in colleges and university.
And looking at some evidence from the state of Texas, done by Dixon, they found at the end of the affirmative action, significantly lower the percentage of Latinx students applying to college by about two percentage points. And then that's for Latinx students and lower the percent of Black students applying to college also by two percentage points.
In Texas, we have extensive evidence both from causal and descriptive empirical work, that affirmative action bans have a chilling effect and lead to declines in both the likelihood of application to college and enrollment for students of color who are already underrepresented in selective colleges and universities.
So what are some of the alternatives and the evidence around these alternatives to race-based affirmative action policies and higher education, and how effective are these alternatives? So there are generally three quote UN quote race-neutral alternatives to race-based affirmative action.
The first is a top percent plan when we think about top percent plans, we're thinking about a plan that guarantees admission to State University Systems to the top X percent of each high schools graduates. And in some cases all the looking across all the graduates in the state. The second is holistic review, which I'll talk about briefly, and the third is plans that take into account the socioeconomic status of the family but not the race.
And thinking about what holistic review means it the College Board defines it as a mission, aligned and flexible, highly individually process by which balanced consideration is given to the multiple ways in which applicants may prepare for and demonstrate suitability of students at particular institutions.
In looking at the evidence done actually by a student who recently graduated from the ECON Department here Zach Lehmer, he found that holistic review was not able to replace quote UN quote, replace race-based affirmative action with respect to enrollment of students underrepresented in higher education. While affirmative action that's race-based increased enrollment of underrepresented students by 20%, holistic review only increased it by 10 %
In thinking about the second option that I mentioned, the top percent plans in California, which are also called eligibility in the local context in 2001, the eligibility in the local context provided admission to the top 4%, but that was revised in 2012 to only the top 9% given sort of demographic changes in the state. And the finding here is that eligibility in the local context or top percent plans, at least in the state of California, increased enrollment by 3.5% of students underrepresented when compared to 20% for affirmative action.
The third option is using some sort of socioeconomic status and the evidence with respect to that is that policies that explore or use metrics around socioeconomic status will only work in the absence of legacy donor choice and early action admissions.
For example, work in 2017 shows that neither socioeconomic status-based affirmative action nor race-recruiting policies on their own can reproduce levels of racial diversity achieved by race-based affirmative action.
In this discussion, I think we're supposed to end on a hopeful note, I I haven't quite gotten to that? But what I can say is I look forward to a discussion about how then should we live, if indeed our goal is to maintain racially diverse universities.
CARY FRANKLIN: Thanks. So I'm going to jump right in. I'm I'm the faculty director at the Williams Institute. It's at LGBTQ think tank. One of the things we're obviously following this year is the barrage of anti-trans legislation over 500 anti-trans bills introduced so far this year over.
Close to 100 have passed. I'm going to focus on the ones that have to do with education, so there have been a number of states that have banned any instruction on gender identity or sexual orientation, either K through five or K through 8.
You probably know that Florida has been leading the charge when it comes to anti-trans work. So Florida passed a law that said universities and colleges may not teach that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States or created to maintain social, political, and economic inequalities.
It also banned schools and businesses from teaching anything that could make anyone feel guilt, anguish, or any form of psychological distress because of their race, sex, or gender or national origin.
Florida has blocked the AP African American studies course from being offered in the state under the Stop Woke Act, which is the name for that bill, presumably because it could make somebody feel bad. Part of this act has been blocked by a judge, but a lot of it remains in place.
There are also book bans and book challenges and book challenges are very numerous and are effectively banned because what happens is a challenge against the book is put forward. The book is pulled while the challenge is ongoing and then it never gets reviewed and never makes it way its way back onto the shelf. So Bans and challenges of hundreds and hundreds and hundreds of books.
You will not be surprised to learn overwhelmingly, these books have an LGBT focus. They also have a they are very targeted at books by and about Black authors, and heaven help you if you are a queer LGBT author.
I looked in preparation for this talk and list of all of the books that have been banned and challenged thousands of books. I wanted to just mention two things that I think are really interesting. One is they weren't the challenges weren't just levied against LGBTQ books for sexual content. That tends to be a common form of challenge, but every single book about LGBT history, Stonewall. If you wanted to learn about Harvey Milk, if you wanted to learn about discrimination against LGBT people, the whole history of civil rights and oppression of these groups, all those books are challenged and banned.
And here's the other thing I observed. This I was actually surprised by the acumen of this. So there are feel-good civil rights histories for kids celebrating the triumph and the great heroes of the Civil Rights Movement that focused there was something in the past, but we've overcome. We're in the land of equality. Those books are still on the shelf.
The ones they get challenged are the books like one of the most challenged books, Memphis Martin and the Mountain Top, which is a beautiful picture book about MLK and the sanitation workers strike in 1968, which was part of his poor peoples' campaign, where he talked about economic inequality, structural injustice, white supremacy. He was assassinated the day after he gave that speech. and this, there's a picture book about it that is challenged in many, many places.
So now I want to connect all of that situation that's occurring on the ground to constitutional law and my particular concerns as a constitutional law professor as a result of all of this.
Most people, when they think of these bands, are thinking about the 1st Amendment. Obviously, fair enough, their free speech is implicated. Free expression is implicated.
But I want to talk about the other parts of the constitution that are implicated by all of this anti-trans, anti-LGBT, anti-Black work.
So two to I'll just talk about two doctrinal, knock on effects of this of these campaigns.
One has to do with the Equal protection clause. All of you will remember back to Con Law 1. Frontiero establishes that one of the ways you determine which groups get heightened scrutiny, or who's going to get mini scrutiny, who's going to get strict scrutiny?
One of the major factors is who has suffered a history of discrimination, right? So our understanding of that history is directly relevant to the question of how closely courts are going to look, when you say you've been discriminated against and when the state is regulating in ways that you object to.
Right. And I think that. There's a very concerted effort right now going on. I'll give you from the highest level. After Obergefell came down, Justice Alito went around to the Federalist Society, to the Vatican, making a bunch of speeches where he talked about the fact that religious people are now cowering in their homes behind closed doors. Whispering about how their advocates of traditional marriage, because there's so much hatred and bigotry against religious people, they can't speak their views against same sex marriage in public.
He is constructing a counter-narrative saying about who the real victims are, who the ones are that are suffering discrimination.
This is of a part of a piece with all of the educational work that I've been talking about and the idea is to enter into the cultural and ultimately constitutional fight over whose discrimination warrants a closer look by the court.
So here's what I'm writing about right now. I'm going to try to do it in 90 seconds. We’ll see if I can.
The Supreme Court has recently introduced a new history and tradition test in substance due process, in the Second Amendment and what they have said is the test say for unenumerated rights under substantive due process is.
Is that right deeply rooted in history and tradition? Has it always been protected throughout all of American history? If it has been OK, it's protected under the substantive due process provision of the 14th Amendment. If not, not. Right, that's why Roe v. Wade is no longer with us, because abortion, the court found, is not protected throughout all of American history. Similarly, under the Second Amendment, the Court has now said the only gun regulations that are allowed are the ones that have existed throughout history and tradition.
So there's a case going up to the Supreme Court right now, there is a law saying people who are under domestic violence protective orders may not possess guns. The 5th Circuit struck that down, saying we haven't disarmed people for domestic violence throughout all American history. Yeah, because domestic violence is a new thing that we monitor, right?
You were allowed to beat your wife and girlfriend for all of American history, we did not disarm. I mean, it's right. We didn't disarm people for that. So you see, under the new test that those laws are under serious threat. But here's a problem.
Although I don't have a lot of evidence to back this up, I do think the current court has some limits in terms of completely returning us to the legal regime at the time of the founding or 1868, just go with me on this. I think they're going to say that not a complete reviving of centuries-old laws are not going to be OK.
They're gonna have to develop some saves because this history and traditions has test tests suggests we just go back. But one of the big saves I think they're going to develop is the equal protection clause, and they're going to say that's a countervailing force, even though substantive due process, even though history and tradition doesn't protect it. Some of the stuff you can't revive because equal protection just doesn't allow you anymore to do that.
That and and so we're back to the same problem, which is how you think about who's protected and who is history is bothersome and troublesome, and which laws are perpetuating inequality that the 14 Amendment was designed to stop. How you think about all those questions? It's going to matter in all of those cases where we have these history and traditions cropping up.
So I want to end.I want to end when I was writing. I kept thinking about different two different models of law and one model of law is that law sits above society and reaches down into society to stop people from doing certain things.
I don't think that's actually how law works, right? I think law is part of society. Law is in our hands. Law is part of culture. Law is made up of culture.
And I think on a deep level, the people engaged in the book bands and the Educational Regulation understand that. Right, they understand that there'll be major ripple effects that are positive from their viewpoint through all sorts of things, like think about the reparations debate, think about these like protection debates, think about all the questions we've been talking about. Right. If you portray history a certain way to kids that will have ripple effects that will do all sorts of.
And that's one of the reasons I think we should care a lot about what little kids in Pensacola are reading. Whether little kids are allowed to read about Harvey Milk, where they're allowed to read about Martin Luther King and the sanitation strike because the Constitution its meaning was not fixed in 1868.
It's meaning changes overtime and its meaning is made out of the materials that we have at hand, like how we think about equal protection, how we think about who belongs to we, the people we. We constitute those provisions and we give them meaning based on the stories that we have I think it matters a lot whether those stories that I've been talking about are on the shelves or whether they are pulled.
RUSSELL ROBINSON: Thank you all. Let's give a hand of applause
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I'd like to encourage you to submit questions. Caroline, can you give people note cards so they can pass forward while I ask another question for the panelists.
And so this is, this is the the light at the end of the tunnel question. Are there things that people in the audience, students or others can do? In a local context, in a state context, in a national context to make difference. I'll just offer one possibility for those that are focused on US. Common law and regular SFFA, that opinion Roberts at the end, you know, it's basically a color blindness opinion you know don't pay attention to race, that's the path toward racial equality, he says. Then, at the end, there's a bit of a curveball right where he says that Universities can still take into account student statements that talk about overcoming racial adversity or celebrate their racial heritage.
So is that something that offers some hope that universities can find a way to use that? I won't call a loophole because he's very quick and it's not a loophole. But is that? Is that a pathway where race might still make a difference in the way that universities respond to the opinion. So whoever wants to jump into or talk about that or something else if there's another ray of light that you identify.
TOLANI BRITTON: I can jump in first thinking about university admissions.
So what students write will only count if students write it. And so what that says to me is someone who thinks and spends a lot of time studying, you know, how students get to and through college is that it now places in some ways a burden on the university, the high schools, to work with students to then make those kinds of statements so that they can be taken into account. Part of the findings of past work is that active recruitment of students is effective. But it's not enough. And so particularly given that many students have, you know, it's one student almost four, it's one college counselor, it's almost 400 students in most public schools. There's a lot of work to be done. So that students, even understand that. So I'll stop there.
JERRY KANG: OK. So good question. You know the UC systems, certainly Berkeley and UCLA have a long experience post Proposition 209. And how we played the game afterwards and. We played it aggressively at. At enormous cost checking, kind of overriding. Of what we can or. Do and we've done. We've created a better system than what would have been if we did nothing. So I think there's always a chance. I'm complete pragmatist. Since you've got to work with what you got. So I think there are possibilities.
I think a larger like recommendation or thing that I want the folks in the audience to remember maybe is the following. It’s deeply connected to the observation that Professor Franklin made about how law and laws meaning, you know, marinates all around us in the culture in which we help produce and consume.
And I'm going to just, I'm going to share with you a quote that I often use in in contradistinction to the quote that many of you know.By Audrey Lord. Audrey Lord once said the Masters tools will never dismantle the Masters house. I think it's all becomes read out of context, but it's a cool quote. People know it. There's another quote by Zora Neale Hurston, written in 1920. Where she says. I do not weep at the world. I am too busy sharpening my oyster knife. I love that book. I love both of that.
You got to recognize the limitations of the tools. That you're learning now within the law. But also recognize. That you ain't got time to weep and you actually have to sharpen your tools. Some of those tools are doctrinal, legal, standard stuff. But some of the other tools are all about changing common sense because it turns out the social meanings that we inhabit, what we think to be ordinary, what we think to completely make sense, is in fact what drives of lot of big changes so.
What? Just think about simple procedure, when you have to decide what counts as plausible after Iqbal or how you meant summary judgment. And I have to tell you that I've been working for about 20 years and trying to inject in more sophisticated upgraded model of discrimination based on social cognition.
That's all the implicit bias work and identity threat work that has changed actually how most people just think about why discrimination actually takes place and has.
That knowledge, which is background knowledge, not actually tested by a Daubert standard for expert testimony in a particular piece of litigation, but stuff you pick up from blogs, from conversation, from reading editorials, the zeitgeist has actually altered the way people think about what the nature of the problem is.I think that understanding is one example.
But actually changing right our collective common sense by using again all the tools that we have and this means that you have to code switch. Like do not be that guy and just slam other people with words that don't actually land on the audience. You have to understand when to code switch to actually change the common sense of the people who hold power, and that includes Judges, law professors, future law folks from fancy places like Berkeley and I think that's our project. We don't have time to wait
CARY FRANKLIN: So I guess I'll just say. The Berkeley is further along this building is further along in terms of being inclusive than a lot of spaces out there, and you will graduate and you will move into spaces. You will move into workplaces. If you have children, you will move into daycares and elementary schools. Those places don't just become inclusive, and what I have found now that I have moved into workplaces and had children and moved into those spaces is there's a lot of work to be done, even in California.
Maybe you don't have gender-inclusive restrooms in your kids daycare. UCLA does now. Right, there's a lot of work that can be done in those places. Look around your workplaces for who is not included. You can do that work and it's on you to do that work. It's not going to happen if you don't do it. My mom's a children's librarian, so I also just want to say in terms of action items and things you can do.
Go look at the Pan America or ALA list of banned books. The holidays are coming up. Bye your friends and loved ones some of those books, They're they don't just banned. I mean, they generally don't ban junk. They ban good books, right. They ban moving and poor and powerful books. It's a good reading list. For yourself and for others. Toni Morrison and her son wrote eight picture books that had just come out as the Toni Morrison treasury and got all eight books. It's really beautiful. Get it before it's banned.
JONATHAN GLASER: I want to return. To the initial questions, that's Robinson, that. That that you asked.
I think the language in the opinion that you're alluding to, where Justice Roberts seems to leave the door open for consideration of race in the context of of assessing someone's overcoming of an obstacle that might be related to their racial identity. Puts the institutional determination or institution institutional willingness squarely at issue.
Right is the college or university prepared to try to exploit that possibility and that's I suspect we're going to see different colleges and universities answer that question in in different ways and. And then that would be tested right there. There will probably be more litigation around that that question.
You also asked about what people should do and I want to build on what Professor Franklin said a moment ago. One is support people who are members of excluded marginalized subordinated groups.
The other is participate in informed discussions and if those discussions are not informed well inform them. Right? I mean, you all are privileged to have access to argumentative tools and knowledge and skills that allow you to point out the assumptions behind arguments. Right?
So the the assumption driving the SFFA case is that consideration of race and admissions is the reason. Right. Why? Asian American applicants may be under admitted. Question the assumption, right, question the assumption you have the tools to do that.
The other, and I say this somewhat glibly, but I mean it. The other response is vote. Please vote.
RUSSELL ROBINSON: Excellent. I'm just going to try to extend a little bit what Professor later said at building on what Professor Cong said during our planning call a couple days ago, which is. So it seems that in 2020 there was this opening, this possibility where we were talking about white supremacy and anti-Blackness. But it seems that the pendulum is swinging back like right before our very eyes. Right?
And that you know the DEI officers that were pointed in Hollywood are almost all gone, so we've hear from the LA Times, for example, right and all these other contexts where companies, you know, promised huge sums of money. Well, guess what? They didn't actually give them money or the programs haven’t been implemented.
And so I think one of the things that we can do is if we're part of organizations that might be a law firm or some other setting that is retreating from commitments that it's made, holding them accountable because it does what the national mood is changing.
And we could slip back to where we were in 2019, right. And so if you're in the context where there's some pivot point, some decision about following through a commitment or maybe you're making a new commitment, you know, speaking up and and and saying something, I think that can make a difference,
Tons of great questions. We have 10 minutes, so I'm not going to be able to read them all. But I'm going to try to get to as many as I can for the panel. Anyone who wants to respond.
First up. Affirmative action focuses on higher education. How do we address the same inequities in primary education as Brown versus Board? And San Antonio Rodriguez? Central Antonio Independent School District versus Rodriguez. I've illustrated the shortcomings of the law and trying to establish education equity. The K through 12 problem, right?
TOLANI BRITTON: Yeah, please.
JONATHAN GLATER: I'm going to. I'm going to use this as an opportunity to talk about the litigation involving Thomas Jefferson, which is a high, so very selective public high school in in Virginia where the administration they changed the mechanism for determining which students what the feeder schools are into the the high school. And the litigation is challenging the changes which are neutral on their face because the claim is they're motivated by concern over the racial mix of students in the high school.
It's a potentially very significant case because in the past the court has said that use of race neutral tools is OK to address this problem, right? So so. Top 10% plans, for example, that Professor Britton alluded to. That's a racial explicitly neutral, formally neutral tool, right? If the court decides that neutral tools actually are not OK if race is a consideration OK. And the decision to adopt them that's adopting a formal, disparate impact kind of standard for assessment of student right student assignments.
That would be a very interesting moment because the court has been pretty hostile to disparate impact arguments made by differently situated plaintiffs. So. So I'm not sure what the right answer, what the answer is to the question. I think we're going to get a glimpse of how the court is going to view that question. Potentially in fairly short order.
TOLANI BRITTON: So as a you know, former high school teacher, I'm going to select the question back to make sure I am actually understanding what I'm answering before I answer is the question, how do we address the sort of racial segregation in some ways in K to 12 schools? Or is the question how do we increase sort of the use of affirmative action policies in K to 12.
RUSSELL ROBINSON: I think the first part. Of it.
TOLANI BRITTON: Yeah, money matters. That's the really short answer. One of the things that we've seen is as you bring additional money, funding and programs. And remember money is a necessary but not sufficient condition. But as you bringing money and programs into schools, schools that were, you know, sort of stubbornly segregated all of a sudden, you start seeing an influx of other families and parents, quite honestly, is what we see in education. So it's really about how you're funding particularly underfunded schools that are primarily, you know, and in the US context, Black, Latinx students from working class families.
RUSSELL ROBINSON: OK. Thank you.
And this question is just as SFFA has endorsed A damaging model of color blindness that erases the history of anti-Black racism. Many defenders of affirmative action have denied or downplayed the possibility, but facially neutral characteristics of the college admissions process, including but not only legacy preferences are in fact biased against Asian Americans, including those deemed overrepresented like East and South Asian Americans. How do we heal this divide?
JERRY KANG: I think that's for me.
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So you know what's painful is that, you know, my first law of the article as a law published, I think in 1996 was called “Negative Action Against Asian Americans” because we did this back then and it's it's it's painful to see the exact same controversy articulated. And I've been flummoxed by the fact that again, the entanglement persists in profound ways.
So again, and I know I haven’t been as clear as I could be, I guess I want to try to say the following. Race discrimination against Asian American is real. It just is. I mean, I teach a class sometimes on Asian record. If you haven't studied the internment, if you don't understand, like hate crimes, you don't understand the dehumanization that actually exists and people who look a little bit like me, it's a thing, right? And then. You can't just say. Well, they still seem to get out OK. They still go to Yale and Berkeley, so no worries. No, it's still a thing and we have to own it.
And for those people who think, oh, it's all structural and no, no one could do anything bad like. It's complex. We all exercise agency and there's discrimination against Asian Americans. And if you try to think that you have to deny that to play a progressive game, I think you're both inaccurate and also, actually underserving the actual cost.
But the second thing is to underscore that the reason why Asian Americans are shut out from elite, elite elite positions is not because of race-conscious admissions given to others because there aren't enough.
It's because of both implicit bias and structural advantages that actually help white people over Asian people. So even if you end all race-conscious admissions and by negative implication, it does help those people who are not given quote race-conscious affirmative action, that doesn't solve the comparative advantage given to white people over Asian people. So you still take the hit.
I think that's what's important to understand and maybe the final thing that I try to underscore is at the very same technologies that events that uncover that reveal the subtle formation of Asian Americans, right, into the bias that dehumanizes us reveals that we got junk as well, not only Asian Americans, but all folks.
The very same technologies of statistics that say the past influences the future, like whose legacy, right? Have greater impacts on other folks. So if Asian Americans are treated no differently than whites because they also happen not to be included, like maybe Jews are not included in from advancement programs, even though they obviously have their own legacies of dealing with the longest hatred, anti-Semitism, in some sense. Right. It's complex world.
If you treat Asians with neutral actions the same as everyone else who are not included in race-conscious mission programs. On what basis do you have right to cry that you're uniquely being the target of suffering? I don't you can make that claim. You still might not want to give up anything because you just care about your own. I think that’s a mistake.
I think being committed country that's struggling towards a little better justice and being consistent with the sensors and the statistics and the methodologies that tell you while your own lives are not entirely fair, we'll force you to think I gotta do. I gotta pay my own dues to the going concern that is America, which means doing right by others to make sure that there is enough of a critical mass such as we all get a fair shot to succeed.
I know that's not a sound bite. It happens to be tricky.
RUSSELL ROBINSON: Thank you. And I'll just add that where I think one of the things that when.
We think about trying to avoid zero-sum thinking and building bridges. I think also you know African Americans engaging the affirmative action debate need to take seriously the possibility of anti-Asian bias in these cases, right. And it's not sort of, you know, reflexively. Oh, you're you're privileged. Compared to my group. And so I don't have to take seriously the possibility that as you so eloquently explain.
The the the sort of personal rating at Harvard could, you know, create an opening for implicit bias against Asian Americans. I think we can. We can engage both of these questions. It's not a it's not one or the other, but we can take both forms of discrimination seriously.
We're almost at a time, but I'm going to ask one more. How do you see this decision as SFFA on race-based admissions affecting other identity classes, gender, ability, nationality?
CARY FRANKLIN: Well, I guess I'll just jump in quickly and say I think there's a real problem. I think this form of this, this embrace of formalistic conceptions of discrimination, where the problem is the bear classification and you've completely removed it from a history of subordination from cultural context, from anything, and you just say you may not classify on the basis of race.
So affirmative action and Jim Crow are the exact same thing. You know, we saw that in Bostock, the decision that said discrimination against gay and transgender people is sex discrimination. And the court used a very formalistic mentality to say that if you don't like Jane because she dates Laura. But you're right with Jane, if she dates Ronald then that's sex discrimination was really problematic to me because it is a very formal anti-classification, hollow, narrow, easily limited and easily retrograde way of thinking about discrimination. And I think we're going to see it in statutory interpretation and constitutional interpretation, I do, I think it is a real threat that the Court is trying to cut away history, culture, recognition of actual lived inequality on the ground and move into a highly manipulable, narrow and formalistic vein. I absolutely think it's going to spread across lots of different identity categories and it will not be to the good.
RUSSELL ROBINSON: We're at time. Thank you all for the questions, including those that I couldn't ask. Let's thank our panelists.
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