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- [00:01]
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Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We're gonna talk current events here I going on at the Department of Justice, the Federal Communications Commission and ABC News as well. And then we've got a special guest for you all. Professor Justin Driver of Yale Law School will be joining us to talk about his new book, the Fall of Affirmative Action. I can't tell you how really impactful this conversation was, so I hope you'll stick around for that as well. We'll be right back.
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SCOTUS Today is your daily briefing from the nation's leading Supreme Court authority. Every week, SCOTUS Today brings SCOTUS Blog's renowned depth and insight directly to your inbox. The newsletter will include SCOTUS quick hits detailing the latest happenings on the Supreme Court. The morning reads, a summary of recent news and opinion pieces about the Supreme Court, a feature piece on one particularly salient aspect of the Court's work, and more. Whether you're a legal professional tracking every cert petition or a citizen seeking to understand how the Supreme Court shapes American life, SCOTUS Today is set to become an unmissable part of the Court Watchers morning routine. Head to scotusblog.com scotus today to sign up today.
- [02:37]
A
All right David, I want to start by reading you some truths. Start with Saturday night here. Pam Colon I have reviewed over 30 statements and posts saying that. Essentially same old story as last time. All talk, no action, nothing is being done. What about Comey, Adam, Shifty, Schiff, Leticia? They're all guilty as hell but nothing is going to be done. Then we almost put in a Democrat supported U.S. attorney in Virginia with a really bad Republican past. A woke rhino who was never going to do his job. That's why two of the worst Dem senators pushed him so hard, he even lied to the media and said he quit and that we had no case. No, I fired him. And there is a great case and many lawyers and legal pundits say so. Lindsey Halligan is a really good lawyer and likes you a lot. We can't delay any longer. It's killing our reputation and credibility. They impeached me twice and indicted me five times over nothing. Justice must be served now. President DJT So that was obviously a public post from the President. I've gone back and forth on whether I think it was meant to be public or it was meant to be private, but then got accidentally posted. I'll tell you, in the end, I've come down that it was supposed to be public. But let me read you the next two truths. Pam Bonney is doing a great job as Attorney General of the United States. She is very careful, very smart, loves our country, but needs a tough prosecutor in the Eastern District of Virginia, like my recommendation, Lindsey Halligan, to get things moving. That sort of goes on. I will say that kind of undermines the idea that the previous post was meant to be public. Nevertheless, and then the last one. It is my honor to appoint Lindsey Halligan to the Eastern District of Virginia as a special assistant to the President at the White House. And, you know, goes on to talk about her. Okay, so, David, this obviously is a big deal. This is the President of the United States directing the prosecution of anyone. I mean, that itself is a big deal. Directing the prosecution of someone he says is his political opponent. Second big deal. And that the reason is that they impeached me twice and indicted me over nothing. Justice must be served. So it's for the reason that they are a political opponent. You know, the person who is the U.S. attorney there, I mean fired or quit or whatever you want to say, is no longer the U.S. attorney. Interestingly, they've put in someone not in the U.S. attorney's office. Right. We've talked about the Vacancies Reform act on this podcast and that the White House basically has decided there is no Vacancies Reform Act. And also that part of the Constitution that talks about the need for Senate advice and consent over. Over officers of the United States. They just don't care anymore. And they're daring the Senate to do something about it. And that dare seems to have gone quite unanswered. So here you have them appointing her as special assistant to the President who is going to run a prosecution in the Eastern District of Virginia. And as best we can Tell act as the U.S. attorney, which is different than being the acting U.S. attorney or the interim U.S. attorney? David? I don't know. I mean, reactions. Is this. And is this a difference in kind or a difference in degree?
- [05:55]
E
Difference in kind and degree. And one of the good ways to sort of discern that is to think back to some prior scandals. So, for example, do you remember when the whole conservative world was set afire, when Bill Clinton, in the middle of when the FBI was investigating Hillary Clinton, Bill Clinton came over and had a short meeting, airplane walked out of his airplane, walked over to the Obama Attorney General's airplane, has a brief meeting. Nobody knows for sure what they discussed, but it was essentially described as we talked about each other's families and then the world. That mushroom cloud you saw was the media for several days about was this improper interference? Clinton wasn't even her boss. Right. Bill Clinton wasn't even her boss.
- [06:42]
A
By the way, just like a footnote in history, it changed the entire protocol for how attorneys general exit the airplane when we land at Andrews Air Force Base, because part of the protocol was partly to blame for that happening because staff went off first and she remained on the plane. And so he was able to go in there when there was no staff then on the plane. So now the attorney general always exits the plane first and staff exits after.
- [07:08]
E
So you look at that and it's like, oh, that's quaint compared to this. This is so very brutally direct. And another way to think of its propriety is think of it like this. Imagine you're an attorney. And, and, well, many of you listening don't have to imagine you are an attorney. And well, let's say you're a criminal defense attorney. And somebody comes in and they say, and you've got an indictment in front of you. And they come in and they say, okay, I've read the indictment. Talk to me about your defenses. Let's walk through. And he says, well, I'm innocent. Before we even get there, let me just tell you, this is a politically motivated prosecution that the President of the United States has directed the Attorney General to prosecute me for blatantly and obvious and transparent political reasons. As a defense attorney, when you hear something like that, you're like, okay, what's your evidence for that? Do you have a secret recording? Do you have some internal memoranda that are sort of outlining that? Are you gleaning this from between the lines? And no, they held up a quote, unquote truth, Pam, prosecute them for political reasons. What kind of prosecution. How will that prosecution survive? I mean, just imagine you've got a. You know, you still have to run through a separate branch of government, a judge and a jury system. I mean, this is the kind of thing that its transparent wrongness is obvious from the moment you start to try to work it through the system. How does this walk through the system? And then the other thing that I would say is we have this very weird thing going on where people have been so conditioned to believe that corruption is accompanied by secrecy, that when corruption is transparent, they don't think it's corruption. Okay? And so he will do something like this just out in the open, completely wide open, and people don't code it as corrupt because it's just right there. And it's interesting, I've noticed a lot of Republicans kind of picking up on this phenomenon in an interesting way. Notice how many times they'll defend Trump by calling him transparent. That is not a defense of Trump if what he's being transparent about is deeply improper behavior.
- [09:29]
A
Here's the question for me, David, at least according to reporting that we have, and I've seen the documents for this, so it's pretty good reporting at that point. Remember that in order to prove this type of mortgage fraud about your primary residence, you have to have intent to defraud. So you have to show that you intended to mislead the bank about what your primary residence was. And basically they have tons of documents where she explicitly says, this will not be my primary residence. And on the one document that was related to her primary residence, it was for a different purpose, not for the bank, it was corrected. Like the idea that you're going to prove intent is. I mean, it's a non starter, really. So let me read you the fifth Amendment, David. And that's your clue, everyone. I've mentioned this before on the podcast, so here's your pop quiz for today. What is the one right in the Bill of Rights that has not been incorporated against the states? So you've had time to think. It's the grand jury. So a couple years ago, we finally had unanimous jury verdicts incorporated against the states. And incorporation, by the way, is the idea that when the 14th amendment was ratified, the due process clause, oddly, is how this happened instead of the privileges and immunities of citizenship clause of the 14th Amendment. But the idea is if states cannot deny your right to due process, then all of these rights from the Bill of Rights means that states can't deny those rights as well. Because before right, states could establish a Religion and all sorts of other stuff. Okay, so the one right. That hasn't been incorporated is grand jury states do not have to have presentment and indictment by a grand jury before moving forward with a prosecution, but the feds always do. Now, you will also hear the phrase, you know, a prosecutor can get a grand jury indictment on a ham sandwich. That's because the way grand juries work, there's not like a judge there. There's not. You don't get to present evidence from the other side or you don't have to. And so it's really a prosecutor saying, here's what I need to prove. Here's the evidence I'm going to show. Do you agree that there's probable cause that, you know, that we can move to trial with this? And the answer from the grand jury is almost always yes, almost. And my question, David, is are we about to see grand juries play an actual role in federal criminal process? Now, where we've seen this happen in D.C. where grand juries refused to return an indictment, we call that a no. Bill, I will say that I thought that those were probably a little bit closer to jury nullification. Grand jury nullification in this case, where they wanted to send a message that they were going to refuse to indict, not that it didn't meet the technical aspects of the crime, but that they did not believe this was a good use of resources in their community. The guy who threw the subway sandwich at the National Guard officers being charged with. With felony assault. I gotta say, actually, I think you throw anything at an officer, you assaulted them. Like, I would have. I would have voted for that indictment for what it's worth. But here I wonder whether there will actually just be a legal insufficiency for the grand jury. Mind you, the Department of Justice only has about a week left until the statute of limitations run. So they are about to have to rush to a grand jury to try to get this indictment. If they're going to try, and I don't know if they're gonna succeed.
- [12:50]
E
Yeah, that did feel like it was shading towards jury nullification. It was almost like a warning shot across the bow to say, look, we're happy to enforce felony assault statutes, but when there's a lot of real assault, can we not dedicate resources to a ham sandwich assault? But I'm with you. I don't. The very act of throwing something at federal officers, to me, it's a very dangerous situation when you do that. I would not have returned. I would not have. Now, on the penalty phase. But I'm with you 100%. Don't throw stuff at federal officers, period. End of discussion, guys. This is gonna be extraordinarily dangerous. However, when you talk about imagining an indictment against Schiff or an attempt and an indictment, when this is out there, when this is out there, are you going to see that situation where grand juries almost act as like the kind of break glass in a case of emergency? It's going so far, it's becoming so obviously targeted you can't even convince a grand jury. And this again, this is another area where your last branch standing thesis is working its way through American public life. But yeah, as soon as I saw that I thought grotesquely. By that I mean the truth post, truth social post grotesquely corrupt, which thank God we have separated the judicial branch from the executive branch in this country because there are massive. His corruption in that truth post is going to undermine his ability to actually accomplish his aims. And so I think that that is, that's something very important for people to realize. Even if you want, even if you believe Schiff is corrupt, let's suppose you're a MAGA listener and you think, David, you're insane. Schiff is so corrupt, there's so much there. Well, guess what, guys, Your President just blew up a prosecution against him, just detonated it from space. Because how many juries are going to convict with that truth social post out there?
- [15:00]
A
We get back, we'll talk about doing it the hard way or the easy way.
- [15:07]
D
SCOTUS Today is your daily briefing from the nation's leading Supreme Court authority. Every week, SCOTUS Today brings SCOTUS blog's renowned depth and insight directly to your inbox. The newsletter will include SCOTUS quick hits detailing the latest happenings on the Supreme Court. The morning reads a summary of recent news and opinion pieces about the Supreme Court, a feature piece on one particularly salient aspect of the Court's work, and more. Whether you're a legal professional tracking every cert petition or a citizen seeking to understand how the Supreme Court shapes American life, SCOTUS today is set to become an unmissable part of the court watchers morning routine. Head to scotusblog.com scotus today to sign up today.
- [15:54]
A
All right, David, let's talk about Federal Communications Chair Brendan Carr telling ABC News, we can do this the easy way or the hard way. These companies can find ways to change conduct and take, take actions on Kimmel or there's going to be additional work for the fcc. Ahead is his full Quote. Now, David, this to me is quite different than the conversation that we just had. That is, I think this is bad. But this to me is saying the secret part out loud that other administrations have been doing. When the IRS targeted Tea Party groups during the Obama administration, they denied they were doing it, but there is now plenty of evidence that that's exactly what they were doing and the purpose that they were doing it for during the Obama administration. The record on that one is all over the place because it went to the Supreme Court. Mark Zuckerberg himself has said that they were threatened by the White House specifically to take down posts about the origins of COVID that they did not agree with or like, or they would threaten these social media companies protections under Section 230 immunity. Now, what I think is important that, by the way, is that section 230 immunity has nothing to do with the origins of COVID So it's not like the threat was related to the misinformation or something. They were threatening them with the burdens of the regulatory state if they didn't do, you know, censor speech that they didn't like. Okay, so now you have Brendan Carr saying this publicly that the administration doesn't like what Jimmy Kimmel, a comedian on Late Night said. And if you don't take some action the easy way or hard way, by the way, almost certainly has to do with a merger that requires FCC approval for some of these local syndication channels.
- [17:40]
E
And he also mentioned fines and forfeitures of licenses.
- [17:43]
A
And David, I got to tell you, my takeaway is that, oh, and it's worth mentioning. So I was on ABC this week and Senator Chris Murphy was there who was saying that he's introducing legislation to basically protect speech. And John Carl, I thought, asked this very smart question of, like, isn't that called the First Amendment? What legislation could you possibly be proposing that will be more protective of speech than the First Amendment? And it just occurred to me, like, you cannot legislate around abuse of power. That's not how we fix abuse of power. Because you're playing whack a mole, right? You keep electing people who abuse their power and then keep, like, coming up with ways to rein them in after they've come up with some new way to abuse it. No, the answer is to look at the power of the presidency and ask, wait, why does the FCC have this power? And in this case in particular, David, it was one thing where the only broadcast that we had was through these government channels that the government then rented out. If you want to call it that to these specific companies, there are so many more ways to get information now, literally, why do we need an fcc? And so I think that this abuse of power is right in line with past abuses of power. And in fact, the answer is to shrink the presidency. Look at the actual power that these guys are wielding, not get mad at Brendan Carr and Trump. I mean, feel free. I think this is outrageous, but I think what Biden did was outrageous. I think what the Obama IRS did was outrageous. The fact that they denied doing it doesn't make it better, in my view.
- [19:15]
E
Well, they later apologized, but I sued Obama, the Obama administration, and we won that case. I mean, we got a good settlement out of that case. And so each one of the elements that you talked about, every one of those was illegal. Now, on the Biden part, they didn't. In the Murthy v. Missouri case, this is a case that has been talked about a lot in the aftermath of Bren Carr and with so much ignorance around it. The Supreme Court did not say that everything the Biden administration did was fine. What the Supreme Court said was, these plaintiffs, these plaintiffs did not have standing to get relief. That is not blessing. What the Biden administration did, there was a traceability issue. Did the Biden administration really have an impact on their speech, which is a very key point on the injunction issue? Was there any plausible grounds to believe that they were facing a future risk? These were not related to the merits. When it got to the merits of this jawboning, coercing, bullying, The Supreme Court said 9090. This was two terms ago in Riv vulo. A plaintiff can prevail in a coercion claim when they plausibly allege conduct that, viewed in context, could reasonably. Could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech. That is the standard nine zero. Okay. And so, yeah, I would say on this one, this is an example where I think the bullying was more obvious than in other administrations. But there has been bullying in other administrations, and this has been a problem for a long time. I mean, if you go back, almost every circuit is going to have some case law on the line between convincing and coercing. This has been a problem with government power for some time, and it's still a problem. And I think that there was a. If you're talking about, did what Brendan Carr say run afoul of Vulo, let me just say, if you're filing a lawsuit, it's gonna get to. It's probably gonna get to your trier of fact, it's probably gonna get to your jury in part because you have on the front end car saying, you know, this can go the easy way or the hard way. The decision is made relatively soon after to get rid of Kimmel or suspend him indefinitely. And then immediately, you know, sort of MAGA starts backfilling that and saying, no, no, no, his ratings were down, the affiliates were upset at him. And all of that could be absolutely true. It was losing money. So one thing does not have anything to do with the other. But then, of course, Brendan Carr sends to reporters like celebratory GIFs after Kimmel is pulled. So there's jury questions all over the place. Let me just put it this way. If you're going to argue it had nothing to do with Brendan Carr, good luck. It's going to be hard.
- [22:16]
A
When we come back, we'll be talking to Yale Law professor Justin Driver about his book the Fall of Affirmative Action and really why both sides may not be quite right about the effect of Students for Fair Admission versus Harvard, the affirmative action decision from the Supreme Court, when we return. We are joined now by Professor Justin Driver of the Yale Law School to talk about his book the Fall of Affirmative Action. And professor, my favorite books fall into a very specific pattern for me. I pick up the book, I start reading it, I absolutely hate it. And then I get some amount of the way through and realize I love this book and become really obsessed with it. And I gotta say, I did not like this book in the first few pages. And I got to chapter two and it made me actually go reread. Like, basically, I got to chapter two, fell in love with it, read the rest of it, and then went back and reread chapter one with my new eyesight. And I'm so excited to talk to you about this. But it makes me want to start in chapter two because you talk about the Equal Protection Clause. In the history, really of the Equal Protection Clause, even going down two at times parallel, but at times very not parallel paths of anti subordination and anti classification. Can you just like give us the Equal Protection Clause? Give US Law School 101 on the history of this and those two paths.
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F
There are two dominant theories of the Equal Protection Clause as to what it forbids. Does it forbid classifications or does it instead forbid subordination? The anti classification idea of the 14th Amendment is one that is overwhelmingly in recent years associated with conservatives who would say affirmative action is prohibited because it involves racial classifications. And they would say further that that was what was at issue. Edmund Brown versus Board of Education. Liberals have subscribed to an anti subordination theory here. They would say affirmative action is a okay, because it's not predicated on saying that black people are inferior. To the contrary, it's designed to uplift black people. And one of the things that I try to do in the book is to say, well, if you're a defender of affirmative action, you can't just bang your fist on the table and say anti subordination. And one of the reasons I say that is Justice Thomas has sort of scrambled this traditional dichotomy between anti classification and anti subordination. If he were here right now, he would say, overwhelmingly, I'm an anti classificationist. But he speaks in the register of anti subordination when he says, the reason that these affirmative action programs exist and the reason that these integration programs exist, they are predicated on a theory of black inferiority. Black people can't make it when left to their own devices, or they need to be around white people in order to learn. And by the way, it's not just Justice Thomas. My fellow liberals who support affirmative action, including Professor Randall Kennedy of Harvard Law School, Professor Stephen Carter of Yale Law School, say, I support affirmative action, but yeah, there is a subordinating component of this here. And so I wanted to try to be an honest broker here and acknowledge when there's greater complexity than many scholars would allow.
- [25:57]
E
So I love that framework, the anti classification versus anti subordination. But I think one of the logical questions that comes out is what doesn't classification in the admissions context in particular, when you're dealing with a fixed pie of admission slots, doesn't classification mean subordination? And the way that I think that the plaintiffs were so compelling in the Harvard case, which was very different from some of the other cases where they might have been white students coming forward, this was another historically disadvantaged minority of Asian students. And I think isn't their argument that the classification led to their subordination? So how do you reconcile these two concepts, particularly when you're dealing with these sort of fixed pie type pools of people where there's only so many people are going to get so many slots, and how does classification not lead to subordination?
- [26:54]
F
So I try to take the arguments by SFFA very seriously. Indeed. A decent portion of Chapter two is dedicated to saying, in order to understand the arguments from students for fair admission, you have to bring anti subordination to center stage. The claim by the Asian American litigants was that the very stereotypes that 100 years ago were designed to depress Jewish enrollment at leading universities were now being dusted off and being applied to Asian Americans. That is to say, these students are not well rounded, their grinds, right? All they're going to do is study and they hit the books. And you don't want too many of these types of students. And therefore there were lower personal ratings. And so I try to really take those arguments quite seriously. You asked perhaps a separate question about this fixed pie analysis and what Chief Justice Roberts would refer to as a zero sum game. When you're admitting someone, you're denying somebody else. You know, there are those who would say, well, to the extent that, say, Harvard and the University of North Carolina were truly depressing Asian American enrollment, that's wrong and that should stop. However, one can be opposed to that sort of discrimination, assuming arguendo that it's happening, and also be a supporter of affirmative action and say that our university should have, you know, some number of appreciable number, I should say, of black students, Latino students, students of Native American descent. And the way that one would get there is to say that the other students, maybe white students, are being artificially propped up as, you know, being as a result of the artificial depression of Asian American students. So I take it that of course, one could take the that argument all the way down the line, but there are those who would say, yeah, you can simultaneously support affirmative action for underrepresented racial minorities and also be opposed to the, you know, the lower personal ratings that were applied to Asian Americans.
- [29:18]
A
So let's go back to chapter one, and to some extent, what I think is the purpose of this book. I don't want to put words in your mouth, but you do a wonderful job talking about the desires and the goals for each side in this debate and why the results of SFFA may undermine those and what the future is for those specific goals. And I just. It's a really interesting angle for a book to begin with. So let's go back to chapter one. Talk about what you think the conservative goals were in ending this sort of racial classification and why you think the result of this won't accomplish that. And you had this great piece in the New York Times that I read even before I read this book that I thought really moved this conversation forward as well.
- [30:09]
F
So there are a couple of central arguments that conservatives have long made in opposition to affirmative action. One would be an argument about victimization, and the second would be an argument about mismatch. So with respect to victimization. This is an argument that I associate with Shelby Steele and John McWhorter and Justice Thomas for that matter, who would say the problem with affirmative action is that it requires black people to conceive of themselves as victims. And that is a dangerous position to be in if you're trying to make a real contribution to American society, viewing yourself as being under attack, and it's just not a healthy mindset and dangerous for race relations more broadly. My argument is that trying to take victimization seriously, those concerns are heightened by the SFFA regime rather than diminished by the Supreme Court's opinion. So under the old regime, before the Supreme Court invalidated affirmative action in 2023, a Black applicant like myself could check the black box and then say, write an essay about how I wanted to study Proust or the Odyssey or anything else under the university's wide sun. Under the new regime, because universities are understood to be forbidden from accessing the racial checkbox data during the admissions process, black applicants are overwhelmingly incentivized to write essays that sound in racial woe. What students these days talk about performing their racial trauma. And you can check a box without too much thought at the doctor's office. But a successful college essay requires multiple rounds of revisions and polishing. And students are going to be very invested in saying, contrary to many conservatives views, there's not been a lot of racial progress in the United States. In fact, we stalled or maybe even moved backward. And let me tell you about this time that I was followed around a store, so forth and so on. And it requires black adaptants to say the overwhelmingly, the overwhelming, the dominant view of myself is as a black person rather than as, say, a human being. It sort of essentializes and fixes race in that fashion. So that seems to me to be less desirable. And importantly, I worry, and many conservatives voice this idea that students from modest backgrounds are going to be sort of not aided by affirmative action. But I write about Demar Goodman, the student from a rough part of Atlanta who was going to write his essay about going to an underprivileged school and some of these race inflected difficulties. And then he got wind of SFFA and said, oh, I'm not able to write about race at all, that even mentioning it is verboten. And so it's going to be the folks who have access to capital and circles of influence that are going to be helpful at being able to sort of finesse this more complicated world. You can understand the racial box as democratizing the racial bump. Okay, so that's victimization on mismatch. This is an argument that goes back to the very dawn of affirmative action. That title didn't exist. This is something we associate with Richard Sander of Stanford. But people were saying that the problem with affirmative action is that it places students in academic environments that they're not well positioned to be able to put a really solid foot forward for. So rather than going to the number one school, better that they would go to the 10th or 15th best school, where they would be more competitive. I argue that this mismatch idea, though it's not one that I think has a lot of empirical foundation, but again, trying to put on my conservative hat, my Wall Street Journal sort of opinion page hat that those concerns are going to be heightened. And you don't have to take it from me. Justice Clarence Thomas told a student called Cedric Jennings, who grew up in Washington, D.C. my hometown. He attended an underserved school. There was a profile of him in the Wall Street Journal by Ron Susskind saying, wow, look at this black kid trying to achieve in the face of real adversity. Thomas invites him to his chambers, and Jennings goes, accompanied by Susskind. And eventually Justice Thomas says, so where are you going to college next year? And Cedric Jennings says, I'm going off to Brown University. Justice Thomas furrows his brow and shakes his head and says, oh, I don't know if I would recommend that. There are a lot of smart white kids up there, and if you're not sure who you are, you're going to get lost. And he talked about his own experiences at Holy Cross. And so here you don't even have to resort to arguments about sort of academic preparation. You might instead say, well, the social adjustment is going to be challenging for someone who grew up in a monoracial environment and finds themselves in a very different environment. And so this mismatch concern, because universities are not going to say, oh, well, we don't really care about having black students on campus any longer. That's just not a realistic possibility. But as a result of the SFA decision, I think it's going to be more difficult for them to admit the, I don't know, Andover student with the B plus A minus average. And instead, they're going to get the valedictorian from an underserved school, and therefore, the students are going to be different. And mismatch is going to be.
- [35:56]
E
The next question that I have is, okay, I thought the SFA decision, it was rightly decided. However, I have a concern. Following it and the concern that I have following it was that the next step of litigation is going to be aimed at what you would call racially policies that are racially neutral but have a racially disproportionate positive effect for diversity. So that would be like your 10% rule, the Texas 10% rule, where everyone in the top 10% of a Texas public high school has admissions offer that would be class based affirmative action. That would be eliminating legacy preferences that would, there's a lot of things or preferences based on, you know, other forms of adversity. A, how much do you think that those kinds of policies are in danger? In danger, if at all, after sffa? And two, how much can those kinds of policies actually make a difference comparable to race based affirmative action? So that's a long windup for a complicated two part question.
- [36:58]
F
With respect to your question about where do we go from here, including race neutral mechanisms, are those in danger? I believe no is the answer to that question right now. Of course the Supreme Court could change its mind in this area, but the Supreme Court of the United States has repeatedly entertained challenges to the University of Texas admissions process, which exactly as you say, had a 10% plan where if you graduated in the top 10% of your graduating class, you were promised a spot at UT Austin, but then also had a second part of the plan that used racial classifications and sort of, you know, racial box checking. Supreme Court of the United States repeatedly actually upheld the racial box checking in Fisher 1 and Fisher 2. And people have not said that the Texas 10% plan violates the equal protection clause, even though there are legislators on record saying the reason that we are implementing this plan in the aftermath of Hopwood, a fifth Circuit decision which got rid of affirmative action is because it would lead to greater amounts of racial diversity. But it's, as you say, a race neutral mechanism. So one of the reasons that I wrote this book is to try to identify the many available mechanisms that exist that are available to universities that would not run afoul of the Constitution of the United States. Again, scholars have been saying for some time in Even the Texas 10% plan should be understood to violate the Constitution of the United States. But the Supreme Court has not been willing to go there to date. And I don't believe that they're going to go there anytime soon with respect to, you know, legacy preferences. I am deeply opposed to legacy preferences, but I don't believe that getting rid of legacy preferences is an important part of the puzzle for those of us who remain invested in the project of racial diversity in elite higher education. The evidence for that proposition is that three major universities who were not using legacy preferences even before sffa. I'm thinking about Johns Hopkins, Amherst, and MIT in the aftermath of sffa, suffered massive declines in black enrollment. So, yes, we should get rid of legacy preferences, but it's not because that's going to lead to lots of racial diversity.
- [39:36]
A
Okay, I want to read you this paragraph. This is the paragraph I really hated. Several observers have asserted that the Supreme Court's elimination of affirmative action will have precious little in the way of practical effect on black enrollment in elite universities. In 2013, when many believed that the Supreme Court stood poised to outlaw the policy, Professor Randall Kennedy of Harvard law School insisted that any such opinion was destined to prove ineffectual. Affirmative action will remain a substantial presence in American life no matter how the Supreme Court resolves the current dispute, Kennedy claimed. The affirmative action principle, Kennedy maintained, had become too venerated, too entrenched on American campuses for any judicial decision to provoke an admissions overhaul. A decade later, as the sffa dispute sat pending at the court, legal scholar Melvin Orofsky similarly contended that the judiciary could not banish affirmative action even if it tried to. Well, affirmative action plans may change in the forthcoming years, he wrote. It does not seem that whatever the Supreme Court may say, they will go away. I mean, I read that, and all I thought about was brown. Right, and you actually address this later on in the book, but you could sub in the word segregation there, and it would fit. It would feel right at home, that word, this idea that it's just so entrenched, it doesn't matter what the Supreme Court says. You just can't mix the races that way. It's not gonna happen. And by God, we're gonna stand athwart, and we can to prevent it as well. And I think when I went into chapter one about the conservatives, the idea of the racial classification problem and the mismatch problem, I didn't see myself in those arguments, and then I saw myself very much in this idea. And you and I both went to Harvard Law School. Actually, all three of us went to Harvard Law School. And I relay this to people all the time, that we had affirmative action on the Law Review for race, but not for gender. And it actually proved this very interesting experiment because. And I'm making up the numbers here, but my year, six black people got on the Law Review, but there were only four black spots, so to speak. So we know that two of those people got onto the Law Review. By, you know, grades or writing on the same as everyone else. But all six were treated as less than. And I heard fellow students talk about the fact like, so and so made Law Review. Yeah, but they're black. It ate at my soul because there was truth to it. At the same time, very few women made Law Review, not just under half. I mean, under a quarter. You know, 10 to 15% of the law Review was female. And when they made Law Review, it was treated as if, like, Sally Ride had landed on the moon. And because there was still an understanding that women were having to, you know, do it backwards and heels, so to speak. So it's not like the thought of difficulty or discrimination disappeared. It was that it made the accomplishment all the greater. And to see the difference in how the two groups were treated based on that. Affirmative action, to me, radicalized me. And again, you actually do compare SFFA to Brown to noting that the Supreme Court, acting alone with a cultural issue, doesn't usually change much. Brown didn't desegregate schools. You know, we now all kind of ascribe to the idea that, no, when Congress got on board, when the politically representative branches reflected back that segregation should end, that's when Brown became venerated. Before then, everyone just ignored it. I'm curious what you think of this. And if you're a black kid who, you know gets a 164 on the LSAT three years ago, that was great. You could get in anywhere you wanted. Why would you take the LSAT again? You got a 164. If you were a white kid who got a 164, you were going to take it and take it and take it until you got that 172. Now the black kid's going to take it and take it again. And that not only raises his score and stops this black inferiority based on data that people are looking at, it also teaches that kid something about grit and drive. That is a good life lesson for how you operate in the world. Okay, tell me why I'm wrong.
- [43:44]
F
So with respect to whether the SFFA decision is going to make a difference in campuses, I'm actually on the opposite side of the question from Professor Kennedy. I thought that SFFA was going to drive down black enrollment at many of our finest colleges, and I'm sorry to say that that prediction has been borne out. You all know that MIT went from 15% black to 5% black. Amherst went from 11% black to 3% black. Brown, Columbia, Princeton, on and on and on, have suffered massive declines in black enrollment. And I think that we are looking at a generation of a lost generation of black students at many colleges. And that's going to have cascading consequences for American society.
- [44:37]
A
But that's what we would expect, I think, in the short term. Right. For that kid who takes the LSAT and gets a 164 and his older siblings or whatever, that was enough. Now it's gonna take a few years. I think that sucks. But I don't like that's the problem of the system that existed before.
- [44:53]
F
I hope that you are right and that this will be a momentary blip. I fear that that's not going to be the case. And as you all know, we have seen this movie before. That is to say, California got rid of affirmative action in the 1990s and it struggled with these issues for a long time to come. One of the arguments that you advanced there, Sarah, was about, well, in the absence of affirmative action, at least the black students who make it into, say, MIT can have their heads held high. They can say, I made it in through the front door and this is an awesome achievement. And Edward Bloom has made this argument that mit only 5% black, but hey, hats off to them. The California experience suggests that we're not really going to be in a post racial nirvana at mit, because the black students who are there are so small in number that in many respects they say that they're not even thought of as students at UC Berkeley. When they are walking around the Berkeley campus and students are handing out leaflets to every passerby, they think this must be not a student here, but some sort of, you know, staff member or something like that. And so it seems to me that that might. And they say we're not even in. The black students say we're not invited to their study groups. They don't think that we're smart enough to make it. And so this might be the worst of all worlds where you have a small number of black students and doubts about intellectual, you know, competence remain. The last thing I want to say here is to ask about, you know, default rules. How do we want to be wrong? This is a point that Justice Thomas has repeatedly made, that as a result of affirmative action, all are tarred as undeserving is what he says. Even though in the Gruder case, decided in 2003, there were some black students who would have made it there even in the absence of racial considerations. Right. Those two additional black students in effect on the Harvard Law Review. Well, Justice Thomas also makes this argument about the 10% plan and says because there were racial classifications in Fisher, they too are regarded, everyone's regarded as undeserving. But that's an odd argument to make in the context of the University of Texas, where the overwhelming students are admitted under the 10% plan and a small number are admitted according to racial classifications. And it seems to me that we should invert the default assumption and say, I believe that everybody made it of their, you know, on their own two feet until proven otherwise. It set up at least a sort of rebuttable presumption rather than saying, the only reason that these people are, you know, professors or, you know, or on the Law review or at Harvard College is because of their race. That doesn't seem like the right default assumption to make. And so I think that we should invert that. Let me just tell you one story that didn't go into the book, but it's, I hope, an interesting one. You know, Justice Thomas, when he was working in the Reagan administration, you know, ran the eeoc. Brad Reynolds, you know, the head of the Civil Rights Division during the Reagan administration, comes to Thomas's investiture and asks to speak. And Reynolds says, I'm just so glad to be here because Clarence leading this organization is the epitome of affirmative action done right, he says, whereupon Thomas flinched and looked down in pain. And I tell that story to say that affirmative action is a complex thing. I don't want to pretend that the answer is simple. And so, you know, Thomas Pain, that's sort of every black professional's worst nightmare. When you are getting your gold watch, somebody says, pretty good job for a black person.
- [49:00]
E
I think that there is a version of the affirmative action story that a lot of people think that goes like this. Meritocracy. Then comes affirmative action. To disrupt the meritocracy, you remove affirmative action. We're back to meritocracy. And I think that if there's one thing that, for example, say the Trump administration by its own practices can dispel is that narrative. Because you have. They're saying we're getting rid of affirmative action and replacing it with a meritocracy. No, not at all. Not remotely. You're replacing it with a different kind of affirmative action. At least in federal hiring, it is color based, red hat affirmative action. And so you do have a lot of situations where it seems to me we just need to tell a more accurate picture which will help us determine what is right and just going forward. And the more accurate picture is admissions were a mess before affirmative action. It is false to think that if you're looking at a white dude in Harvard, that he absolutely earned his spot. That presumption is false. And how do I know it's false? Well, I've been on an admissions committee before at Cornell Law School, and I know that the sausage is made in very bloody ways, even apart from the race question. And so I wish we could understand a more accurate picture, which is prior to affirmative action, you had a lot of nepotism, favoritism, outright racial discrimination against black applicants. You have affirmative action, which in my view replaced a bad system with another system that was deeply flawed. But then a lot of what looks like happens is that when we replace that affirmative action, we're going back to another kind of deeply flawed. Shot through with all kinds of favor trading, shot through with all kinds of subjectivity, shot through with all kinds of different sorts of advantages and disadvantages that are not necessarily strictly related to potential academic achievement. And so, Professor, I guess my question is, are we just choosing between different forms of messes or is there a platonic form of admissions that we can aspire to?
- [51:28]
F
So, really interesting question. I want to begin where you begun, which is with respect to the Trump administration, you're point is quite well taken that they will sometimes bang the drum of merit and then one looks at the cabinet and one is left scratching one's head. At least this one is scratching this one's head. And the Trump administration has been brandishing this inaccurate reading of what SFFA means. That's another reason that I happy that the book is coming out in this particular moment, because consistent with your point about race neutral mechanisms, the Trump administration is saying that universities are prohibited from, say, getting rid of standardized testing. If they say that this is going to help with respect to racial diversity. And that's not something that SFFA says whatsoever. So the Trump administration is attempting to intimidate universities into depressing black and Brown enrollment. You all know that they have secured agreements from Brown and Columbia to hand over the data of applicants both rejected and accepted, broken down by race. And I suspect that they are going to depress enrollment in those universities, even though they've already had major declines in black enrollment. And they're going to say, hey, if your black enrollment is north of 5%, you are cheating. Listen, I think our nation faces profound difficulties right now. The idea that there are too many black students on fancy college campuses is not among those profound difficulties. So I also want to say that the assault on higher education that's happening right now, that is part of a larger assault on independent institutions in American society is actually going to redound to the detriment of students from modest circumstances. Obviously, the Trump administration styles itself in populous manners and looking out for Joe Sixpack and things of this nature, but these universities are deeply concerned about funding right now in ways that are unimaginable, and I fear that that's going to make admissions officers pay attention to who can pay full freight and who cannot. And that's going to make elite higher education only further out of reach for people from modest circumstances, which I'm sure all three of us think would be, you know, a calamitous thing.
- [54:03]
A
Professor Driver, the book is called Fall of Affirmative Action. Professor Driver, we're so excited to have you join us for the SCOTUS Blog Summit coming up later this week as well, where you will talk about the upcoming term. So thank you for all of this.
- [54:18]
F
Thank you so much for having me. I really enjoyed the conversation.
- [54:22]
A
Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to, exclusive town halls with our founders, and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at Advisory opinions the dispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [55:43]
D
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A
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