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Justin Driver: “The Fall of Affirmative Action”
00:41:38
Yale Law’s Justin Driver argues that SFFA v. Harvard/UNC broke with precedent and embraced a faux “colorblindness,” spotlighting the Court’s creative reading of Grutter’s 2028 “sunset.” He lays out the early fallout—sharp drops in...
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- [00:00]
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From the Cascades to PDX to your kitchen. We recycle like we live here. That's why governments, brands and recycling companies are all joining together to bring change, to make recycling better. As in trusting that your recyclables end up in the right places to be made into new things and having brands help fund the cost of recycling. You can find the Latest updates@recycleon.org Oregon. From Mount Hood to the bin under your desk, together we can do this. It's Thursday, September 25, 2025. From peach fish Productions, it's the gist. I'm Mike Pesca. We got an Argentinian bailout today. Why Mile A, Why did he qualify? I think it's cut of his jib politics. Trump likes the cut of his jib. The jibs getting more attractive when you kiss Trump's ass a lot. We've also got ongoing Tylenol rhetoric. The Trump administration resurfacing a 2017 tweet. Look, we've all been there tweeting things we regret, maybe getting a little drunk on the acetaminophen. We're an over the counter pharmaceutical company. We want to take things back. Well, Tylenol had to go and say, you know, our 2017 tweet, it was taken slightly out of context. Very important to mention the context of a tweet to ignore all the science, how science works. Science indicating that Tylenol should only be taken with doctors with orders judiciously to reduce fever. The only safe over the counter medication to do. So some studies showing that maybe there is a link, could be a link between Tylenol and autism. We do have to study more. Not according to Trump. We just have to not take it, gut it out, be a brave person. Also was reported today that the Tylenol doctor, one of the main authors of that study, he was paid $150,000 as an expert witness. I don't find this terrible or shocking. The man is an expert. He wrote a paper. People want his testimony. That's going to cost money. He's qualified. This basically how it works. But, you know, it does push the Tylenol autism link further into the political realm. The way something just so inherently political, like cloth masks, the way that became politicized. None of it is good. One day a mother will have a child and that child will be diagnosed with autism and that mother will say, oh, my God, I took Tylenol and hate herself forever when she shouldn't. But if a doctor said do it judiciously, on the other hand, Others will say I never even took Tylenol after they had an autistic baby, telling themselves they did everything right. It's also terrible and it's all because how Trump mistreats the science. Also, are we going to arrest Comey? I don't know the speed of information Today into this Malstrom I decided to issue a 2,500 word piece originally in the Free Press. It is now posted for free on my Pesca Profundity substack. We have a just list up today for paying subscribers, but everyone could read this piece that I did about the podcast Empire City go to mike pesca.substack.com I spent months on it. It started when I began listening to the acclaimed series Empire City. It's about the history of New York policing and that's interesting to me. Episode 1 Great sound design, good storytelling, interesting story. Then we get to episode two of and boom. An incident that alerts my antenna. Tweaks it. Beep beep beep beep. The host, Chandrai Kumanyika, tries to land an interview with a man who had died a year before the podcast comes out. From then on, I began listening with a more critical ear. I picked up many other mistakes, all in service of the overall police abolition goal of the podcast. Seemed pretty propaganda. Either you can do that, I suppose. You shouldn't make as many factual errors as the host does. And this was all put out by Crooked Media, a somewhat of a de facto communication arm of the Democratic Party, where they always say, oh my God, how dare you say Democrats want to defund the police, but they fund. It costs hundreds of thousands of dollars to make a podcast like this. They fund this piece of, yes, propaganda. Quasi propaganda in service of a point. Which it's fine that I disagree with it. I happen not to think that abolishing the police will make things safer. But when you till the soil of the facts in order to reap a crop that I think is probably poisonous, well, I got interested, let's just say, and I put months into it. But the only reason I raise it now is to direct you to it. And we're going to come out with an audio version of this on the gist pretty soon. But to point out that what was I thinking? I am going to do a large critique of a somewhat popular 2024 podcast that concerns itself with things that happened as early as the 1840s. Yes, it is true that for many, many periods over the last hundreds of years, or almost hundreds of years, the police in New York even Predating the NYPD were terrible to their black citizens and therefore jump to today, abolish the police. I'm not buying it. I'm not buying the facts. I am trying to take you through the reader, through, eventually the listener, through the techniques used to try to pass this off as a logical outgrowth of a fair representation of history, which it was not. But why would I think this was a thing to do? Think about all the things actually going on in the world that we have to pay attention to that weren't about bad things. Police, the constables in New York did in the 1840s. Remember the Trump Russia summit? When was that? No, that was like a month and a half ago. Remember Alligator Alcatraz being closed, then open? That was three weeks, then four weeks ago, respectively. And what about the Department of War? Did that go anywhere? Or the Venezuelan boat strikes? I think a blatant violation of international law, certainly US Law. How are we possibly supposed to pay attention? It is called pissing into the wind. And forget about paying attention to anything non Trump related. The Air India crash, oh my God, that happened last month. Me talking about the Air India crash is like me talking about I got a brand new pair of roller skates. You got a brand new key. Okay, I think I remember it, but how is that possibly relevant to my life? They may be arresting Comey on the show today. I think we still care about the Supreme Court ruling in students for fair admission versus Harvard. It will be a full show interview with an author of a book about that ruling which ended affirmative action. You know, just today, hard to pay attention, but the administration threatening funds, millions, millions of dollars to big cities that do not comply with how they define DEI In New York City where they, by the way, let students use the bathroom of their choice. That is in violation of the administration's preferred policy on transgender non binary issues. Chicago has a black student success plan. Well, there are a lot of black students in Chicago. It's third of the school district. More than that is Latino. Or as they say on their website, Latinx. And damn it, if you're paying taxes in Chicago, you should want the black students to have success, should you not? No, not by using those words, says the Trump administration. So all this is a little bit of background for the interview today. As I said, full show interview. The guest is Justin Driver, Yale Law School professor. He has written in the book the Fall of Affirmative Action Race, the Supreme Court and the Future of Higher Education. Justin Driver. Up next, cooler temperatures are rolling in and as always, quints is where I'm turning for fall staples that actually last. From cashmere to denims to boots. The quality holds up and the price still blows me away. In fact, the price is so low it's shocking. But it's also super soft in the case of their cashmere sweaters, 100% Mongolian cashmere sweaters starting at brace yourself $60 and the denim fits right? And the question that maybe you ask is what makes it different? Well, they partner directly with good ethical factories. Skip the middleman. You know this really, it's a little bit of a cliche, but it does kind of work. Somewhere those middlemen are making money and laughing and laughing and mocking you for paying too much for a cashmere sweater. Quince has really become a go to across the board Bedding, bath, cookware, travel accessories. Keep it classic and cool this fall with long lasting staples from quince. Go to quince.com/the gist for free shipping on your order and 365 day returns. That's quincom. Slash the gist. Free shipping and 365 day returns quints.com the gist hey, this is Dan Harris, host of the 10% Happier podcast. I'm here to tell you about a new series we're running this September on 10% happier. The goal is to help you do your life better. The series is called Reset. It's all about hitting the reset button in many of the most crucial areas of your life. Each week we'll tackle a topic like how to reset your nervous system, how to reset your relationships, how to reset your career. We're gonna bring on top notch scientists and world class meditation teachers to give you deep insights and actionable advice. It's all delivered with our trademark blend of skepticism, humor, credibility and practicality. 10% happier is self help for smart people. Come join the party. In 2023, the Supreme Court killed affirmative action in their ruling Students for fair Admission versus Harvard. There was another joined case where unc, the oldest public institution as Harvard, is the oldest private higher education institution, was a named defendant. My guest, Justin Driver, a professor at Yale Law School, assesses the state of affirmative action now and also looks as to the logic of the case and the ruling. His new book is called the Fall of Affirmative Action Race, the Supreme Court and the Future of Higher Education. Hello Justin. Welcome to the gist.
- [10:34]
B
Thanks so much for having me. Glad to be with you.
- [10:36]
A
So, at the risk of stepping on my own show's name, give me the gist of just what you thought. The legal missteps were that the conservative justices fell into. In. In your opinion deciding this case the wrong way.
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B
Yeah. So the Supreme Court, in an opinion by Chief Justice Roberts, invalidated affirmative action from a precedent standpoint. The Supreme Court had repeatedly upheld affirmative action across decades dating back to the 1970s, and so they deviated from precedent, including in trying to say that they were were honoring precedent in the Gruder vs. Bollinger decision, which was written in 2003. My old boss, Justice O', Connor, wrote the opinion for the court there and included a sunset provision saying, we fully expect that 25 years hence, affirmative action will no longer be necessary. Rather than saying we overrule this decision, the court, with some creative math, said, oh, we're actually honoring the. The 2028 sunset because the class of students that are going to be admitted in the next round will graduate in 2028. But that can't.
- [12:00]
A
So you think they were playing a little bit of linguistic games with that?
- [12:03]
B
That can't be the right analysis. The 2028 deadline must matter for the government making decisions or other educational institutions making decisions, rather than the date of graduation. After all, yes, college takes four years, although many people take longer. Law schools typically take three years for the degree to run its course. Business schools typically would take two years. So by this logic, law schools should have been able to use affirmative action for another year. Business schools should have been able to use it for another two years. And that's surely not what they had in mind.
- [12:40]
A
I do want to get to the sunset provision, but even go beyond what that the conservative justices were arguing had changed. Are you saying hadn't really changed in terms of the law?
- [12:51]
B
Yeah. So they believe that colorblindness is often the order of the day. Chief Justice Roberts says eliminating racial discrimination means eliminating all of it. Of course, even within the context of the opinion itself. It then goes on to say, well, students can write essays that talk about their struggles with sort of racial discrimination and their abilities to overcome things. The court also gave a reprieve from complying with the opinion to the military academies. And the truth is, nobody believes in constitutional colorblindness. My biggest beef with the decision is that I feared that the decision would lead to a decline in black enrollment in elite colleges and universities. I believe that affirmative action made tremendous improvements to American society and that what happens on college campuses doesn't stay there, and it's going to have ramifications throughout American society. And I'm sorry to say that the nation has witnessed plummeting black enrollment rates at many of our fine universities. MIT went from 15% black to 5% black. Amherst went from 11% black to 3% black. Princeton just reported its most recent numbers. It's down to 5% black. So this is going to have catastrophic cascading consequences for American society.
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A
Definitely want to talk about that and the stats. But here's what I want to hone in on with the sunset provision and the the fact of violating decades of precedent, the concept of stare decisis. Um, if there is a sunset idea, is the Court, was your justice not saying this is the sort of case where starry decisis need not apply, or is your contention more she was making a prediction about where society would go. She wasn't making a normative statement about you, this current court or not this current court. But the Supreme Court may in a couple of decades be justified in not adhering to the logic we're advancing now in 2003.
- [15:11]
B
The 2003 decision and the sunset provision, highly unusual from a standpoint of constitutional law. Some people would say, well, we should just regard that as dicta, meaning not a binding part of the Court's holding. It was sort of amusing, if you will. But others would say, and I would put myself in this camp, that precisely because it was so unusual and so specific, that we should treat it as a part of the holding. Indeed, Justice Clarence Thomas in dissent referred to the 25 year sunset provision as a holding. Justice Kennedy referred to it as a pronouncement. My difficulty is that the Court says, oh yes, we're honoring this 2028 provision when I don't think that math quite adds up.
- [15:58]
A
Yeah, I get that. But I guess in more terms of something a little more than common sense, or I don't wanna just fall back on the notion of common sense. Cause that could mean you want it to mean. But here we have a Justice who is voting to affirm affirmative action saying, but this doesn't necessarily mean there should always be affirmative action. This doesn't necessarily mean the thing we're saying today will be said in the future. And that contradicts the idea of once a Court says it, it's got to always say it, which is the starry decisis idea. So no matter what Thomas or the conservative said, it does seem, I'll say again, common sense. Maybe there's a better phrase, plain reading that this. If there was ever a kind of body of ruling that could be reversed, the Court was signaling this is it.
- [16:49]
B
It's a very interesting point. The idea that the sunset provision put the precedent on shaky ground and sort of undermine the concept. I think that what you're gesturing toward, and this is quite perceptive, is that there was a deep ambivalence about affirmative action at the Supreme Court in 2003 with the Grutter decision. But that ambivalence might also be found in Justice Powell's initial opinion in the bakke decision from 1978, where he says, you can't have affirmative action for sort of racial remediation. Instead, diversity is the order of the day. And the ambivalence was found in subsequent opinions involving the University of Texas, where they say, you really have to make extra sure that you're not using affirmative action more than is necessary. So I disagree respectfully with the Court and its ambivalence. As I suggested, I think that affirmative action really did make a tremendous positive transformation of American society. Let me just give you a couple of quick statistics. In the fall of 1960, Harvard, Yale and Princeton had a grand total. Out of 3,000 students entering, 15 of them were black. That is 1/2 of 1%. You flash forward a decade, and it's just shy of 300 black students who are entering these storied institutions. And I regard it as a challenge to the racial dynamics that have defined American society for too long. Those folks that are part of that cohort went on to become engineers and physicians and lawyers, not podcasters just yet. But they really did change the.
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A
Thank God for them.
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B
They really did change better ground. They really did change the face of professional American society. And that had incredible tangible effects and symbolic effects for the place of black people in American society.
- [19:02]
A
Right. So I, as someone who doesn't know as much, nearly as much as you do about the court's decision and how they got there, but I think I do know a lot about the policies in society. I would say the problem with that, it is, it is true. And you quote Orlando Patterson, who I've always liked because he was a great proponent and describer of the black black middle class. I would say for decades and decades, affirmative action was necessary. I, if I was on the court in 2003, probably would have voted for it, but. And you can't run the experiment again, it does become a question. But in 2015 and 2019 and 2023, is this thing that we needed in 1960, before the civil Rights act, is this thing that we needed, still needed and still allowable under, as we. Under the law as we know it? And that is where I think some of the arguments, maybe they were clever, but I also think they were compelling, especially as regards Asian students were. Were to be taken seriously. So what would you say to that?
- [20:10]
B
This question of timing has haunted affirmative action at the Supreme Court from its very first days. When the court entertained the Bakke case in the 1970s, the conference, the collection of justices started banding around, well, how long is this really going to be necessary for? There were some justices who said that universities may use affirmative action in some context, who said, well, we think this is going to be good for, you know, 10 years was what one person said. Justice Thurgood Marshall, who ran the NAACP Legal Defense and Education Fund and of course argued Brown vs Board of Education, said that he thought it would be required for a century, and some of his colleagues thought that that was sort of unimaginable. So there has been an ongoing debate about the timing of this. And of course, these considerations have not completely disappeared from American society in the aftermath of sffa. And one of the things I'm trying to do in the book, as you know, is to identify the path going forward. And of course, I am not in any way interested in defiance of the Supreme Court's decision. There are some people who have openly said, oh, universities should just flout the Supreme Court's decision and do whatever it takes. Yeah, I don't believe if they're clever.
- [21:35]
A
They couch it in different language. But, yeah, that's essentially what they're saying.
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B
I don't believe in defiance. I think that the rule of law is a really fragile thing and that. That fragility has never been clearer to us than in this moment, than you and I are speaking in right now. I do also believe, though, that universities do not have to be in any sense underhanded as they pursue racial diversity. Indeed, the Trump administration has been brandishing a warped understanding of exactly what SFFF mean, sff, pardon me, SFA means. And they believe the Trump administration does, that it sweeps much more broadly than it actually sweeps.
- [22:19]
A
Right. So I would say the Trump administration stipulated they go way too far. That doesn't mean the Supreme Court did, though, of course, I know that you say they did. Let's get into the specific cases where the plaintiffs in these cases didn't just sue based on white people being excluded. That was the characteristic of past cases. They looked at Asian students. There's a lot in the book about this, but I was looking at all the. In fact, I didn't have to look at it anew. I have done things on the show about what is the actual effect. And you're Very. You wrote a recent op ed in the New York Times about this, the actual effect of this ruling. And yeah, there are many statistics that you can draw from individual colleges where. And you said a couple here on the show. Black enrollment went down. Do we as a society, should we celebrate or even be okay with the fact that there used to be 11% of students at MIT, the top, maybe with CIT, the top technical school, and now it's 3 who are black. That's not a good thing. But overall, and I'm not accusing you cherry picking because you're right directionally and you're very op ed in the New York Times links to this excellent statistical analysis. And they said overall, from what they could see, black enrollment at these elite schools, or black and Hispanic went down by 1% and white enrollment went up by maybe 1%. But from different schools. It's often wildly disparate. And what has happened in so many of the schools is that black enrollment does go down and the beneficiaries are not white students. You mentioned Amherst. Their white enrollment, which was never above, hasn't been above 50% for 10 years. Or white enrollment didn't go up, Asian enrollment went up. Or Asian American enrollment since they count, you know, Chinese Nationals and Asians differently. Let's look at the Carnegie Mellon, since we're talking school by school. What happened pre and post this decision? They were at in 2021, 39% Asian enrollment was Carnegie Mellon. Now it's at 49% and white enrollment went from 28% to 26%. And I'm not cherry picking. This happened over and over again. So I'll stop talking. I'm not Gonna recite all 59 colleges, but hasn't this generally been the trend that it is agents who have benefited from this ruling? Yes. At the expense of black students.
- [24:41]
B
Yeah. One of the things I try to do in the book is take quite seriously the claims by Asian American students who oppose affirmative action. And I say that their allegations really do sound in a register of subordination. And that the same stereotypes that were applied to Jewish students 100 years ago at Ivy League schools are being applied to Asian American students today with respect to them being grinds not well rounded. These sorts of odious stereotypes, oh, they.
- [25:24]
A
Might have great test scores, but their personality is very subjective. Aren't up to snuff.
- [25:28]
B
Exactly. So I really try to emphasize these claims and this is the right way to understand what their legal position is. I will say, with respect to Asian American students, one of the fascinating Phenomena to have arisen after the court's decision has been the rise of racial non disclosure among applicants. One of the things that the decision has done is highlighted the notion that being Asian American on an application could lead to lowering one's opportunity to be admitted. And so more and more students, overwhelmingly in the Asian American community, are declining to check a race altogether. And that has caused universities to respond in a particular way because some universities in the immediate aftermath of SFFA did not report sort of increased Asian American enrollment. In fact, they reported decreased Asian American enrollment. I don't think that was actually what was happening on the ground. I think that universities were reporting the racial percentages, as they always did, of the entire incoming class. And because more and more Asian American students were not ticking off the racial box at all, it suggested that there was a decline when there actually wasn't. Harvard reported its racial numbers relatively late in the day last year, and they changed how they were doing it. Rather than reporting race as a percentage of the entire class, they instead reported race as a percentage of those who did check a racial box altogether, and they did not find the decline.
- [27:10]
A
And we'll be back in a minute with more of Justin Driver, author of the book the Fall of Affirmative Action. Foreign we're back with Yale Law School Professor Justin Driver. He has written the Fall of Affirmative Action. You know, my thesis and theories or stance on affirmative action, I've talked about it on the show. And as with so many things, there are trade offs. And what happened after the Supreme Court ruling clearly is not just progress at all. You can, and you do in your book, point to a cratering in black enrollment at many schools. And that is bad. That is absolutely a cost. But in general, the biggest beneficiary was not whites, it was Asians. So let's just start there. I believe that that is what the statistics clearly show. Do you agree that that is what the statistics do seem to be showing?
- [28:14]
B
Yes, and here's what I would say in response to that. One can simultaneously, I believe, support affirmative action for, say, black, brown, Native American students and simultaneously agree that if there is any sort of discrimination against Asian Americans in the college application process, that that discrimination should be rooted out. I don't think that those views are incompatible. And another way of putting the point, and I think this is consistent with what you're saying. If assuming arguendo, sorry for the lawyer ease. Assuming arguendo that there was a cap on Asian American enrollment at these places that was, in effect, artificially propping up white students, say supporters of Affirmative action. And that should be taken away. And one would expect to see a rise in Asian American enrollment under that logic.
- [29:14]
A
But if there was no cap, it could just be the case that there are a set number of slots. There's a good argument, by the way, about distance learning. And why does Yale only have to have how many? It's a big law school. But how many do you admit each year?
- [29:29]
B
About 200 students a year.
- [29:31]
A
Right. That's small. Why not admit 600? But anyway, if there was a cap on the number of students and some consideration goes towards the racial background of the student, but not if you're Asian, then of the 60 students who might be admitted to Yale Law School who are Asian, maybe it will only be 45 who are admitted. Now, if there is a rule that we could take race into account, but not the race if you are Asian or not positively if you are Asian. So it wouldn't be a hard cap, it would just be the other consideration would crowd out Asian American students.
- [30:13]
B
Yeah. The point that you're making is completely consistent with one that Chief Justice Roberts makes where he says admissions is a zero sum game. Right. When you are taking one person, that means you're not taking somebody else. And that there are trade offs here. I would say that those who often speak in this register are saying we really need merit in college admissions without banging their fist on the table about the scourge that is legacy admissions or preferences for donors or even, you know, what are we doing with all of these athletic teams that. Yeah.
- [30:58]
A
And what kind of. And what kind of athletic teams? You know, crew and fencing.
- [31:02]
B
The boutique sports really do serve to have a racial effect on campuses that how many people are actually watching fencing matches? It's not clear that that's really a rallying point for most colleges.
- [31:18]
A
I mean, sabre, yes. A pay no. Let's be real. Yeah. And there's really good scholarship about how this really is a de facto backdoor and by design way to keep the number of white students at elite institutions high. Yeah. So when, when did this, this ruling was made in 2023. But I don't even know the answer to this. Did you not see the effect in your first year classes? Your first year class at Yale Law School until this year?
- [31:48]
B
The first class that was admitted post SFFA started last year, so they are now second year students.
- [31:55]
A
And did you see a big difference? I mean, what are the stats for Yale Law School?
- [32:00]
B
There were some differences in the composition of the class. Other law schools have suffered massive declines. I'll Talk about my alma mater, Harvard Law School. That class of students who began at Harvard last year had 19 students out of a class of 550 students. Students about 3% of the class. That's the smallest number of black students since the mid-1960s at a first year class. And Harvard Law School has proudly graduated more black lawyers than any law school in the country other than Howard, including of course, former President Obama, current Justice Jackson. And so this is, you know, it's not uncommon at Harvard Law School to say, have 70 students in a first year class that you're taking contracts or torts altogether. And I've spoken to my colleagues who teach there and they say you'll have two black students in a class of 70. So this is going to have real consequences at other places. And other law schools have experienced different things and different colleges, as you were saying at the beginning of our conversation, have had differing experiences. And I suppose that shouldn't be terribly surprising because these educational institutions are operating in silos because they fear sort of collusion would lead to antitrust. And so different general counsels are going to have different interpretations of the decision. Admissions officers are going to be doing different things and different schools are differently situated. So I don't think the fact that there's been a range of enrollment rates, I don't think that's especially surprising.
- [33:53]
A
Right. But it is not the case that the brilliant black potential law student who doesn't qualify or doesn't get into doesn't gain admission to Harvard and would have under affirmative action. They're not excluded from the law. They maybe get into a school that's great, but not as great as Harvard, going by the rankings or something, I don't know, nyu. And then the NYU student who's black, who would have gotten into NYU if there was affirmative action, but isn't now, Maybe they go to, I don't know, Notre Dame to pick a school that gave us a Supreme Court justice too. But you tell me in practical terms that has a, you would say giant effect on what, creating the next class of leaders or the income of blacks in general. Like what's the effect of. What's the, what's the horror of that?
- [34:46]
B
Sure. Law as a descriptive matter is an incredibly hierarchical profession. There are excellent law firms that stop recruiting at the fifth or maybe the eighth best law school in the country. And people care where one goes to law school decades after you graduate. By the way, I am saying this as a descriptive matter, not as a normative matter. It's quite possible that it shouldn't be that way. But as a descriptive matter, the opportunities that are available to people at the very best law schools in the country are different in kind from the opportunities that are available, speaking broadly here, to people who are going to law schools in terms of these judicial clerkships and things of this nature. So there really is a broad sort of effect here. And this is something that the Supreme Court in the Grutter decision mentioned, that a small number of schools play a disproportionate role in shaping who are our future leaders. Again, one can say it shouldn't be that way, and I'd be inclined to agree with that. But from a descriptive standpoint, it is that way.
- [36:06]
A
I want to get to two other things that you get to in the book. One is the idea of mismatched theory. And it's highly contested. But to summarize what it is, if we allow, or if colleges and grad schools admit people who are not up to snuff or for whom the work will be challenging, we're not doing them a favor. And there is some highly contested scholarship that shows that there is at least something to this. Like if you look at, and you deal with this, the bar rate passage of people who are admitted with lower LSAT scores, it's lower. It correlates. Lower LSAT scores correlate to being unable to pass the bar on the first time or the second time. And then the same scholarship says, well, look at the difference between. And I chose these schools by Design, UCLA and UC Riverside. Students who are admitted in a low 150ish band of the LSATs do better on the bar, which is an objective criteria, if they went to UC Riverside than if they went to this quote, unquote, better law school. So the idea being a law school that meets the students where they are might be better for the students. What do you think of mismatch theory?
- [37:20]
B
I want to emphasize where you began, which is that this is deeply contested work from an empirical standpoint. Richard Sander of UCLA Law School wrote a Stanford paper that got a tremendous amount of attention and received intensive pushback by PhDs with economics, including my colleague just down the hall here, Ian Ayers. And also at Stanford Law School, Professor Ho wrote an important article that really pushed back against us. So it's important to say that. But assuming the veracity of it, and this is one of the things that I try to take on in the book, I make a claim that even as assessed by conservative lights, mismatch is going to be intensified as a result of the SFFA decision rather than minimized by the SFFA opinion. And here I am trying to channel my inner conservative, such as it is. That's a hard thing for me to do on the card.
- [38:21]
A
Yeah. And we should tell listeners the book starts off, it's like the first chapter is going to be, I'm going to pretend I'm a conservative who believes in this and give you the best arguments. So.
- [38:31]
B
Exactly so. Exactly so. And so, with respect to the mismatch portion of the argument, colleges and universities are going to continue to want to enroll black students. It's going to be easier for them, after sffa to enroll the valedictorian or the salutatorian of an underperforming urban high school rather than the B plus A minus student from Andover. It's quite possible, according to conservatives themselves, including Justice Thomas, that a student who attends an underachieving urban high school is going to have great difficulties adjusting from a social standpoint on elite college campuses in comparison to the A minus B plus student from Andover. And so if one is truly committed to minimizing mismatch, it seems to me that the old system, the pre SFFA system, was better than the new system, in part because the claim might be educators know what they're doing here and who is going to be equipped to thrive in a challenging academic environment.
- [39:45]
A
So the last thing I'll ask you about is you've had a while to think about this and process this and write the book. And I did read your recent essay, the Excruciating Question Confronting black college applicants, and it's about the regrettable need or requirement or de facto requirement that black applicants essentially parade their trauma to get admitted to schools. Was this. This was, I think, a foreseeable consequence. Well, you tell me a foreseeable consequence of the part of the Roberts decision that had this carve out for essays. And I think it wasn't meant with ill intent. But you're putting your finger and saying that it did have a pernicious effect, right?
- [40:33]
B
Yes. The dynamic is that under the old application model, a black applicant like myself could check the black box and then write an essay about why I wanted to study the Odyssey or Proust or the Washington Nationals, whatever the case may be. Under the new regime, because universities have walled themselves off from considering race as part of the application process itself, black applicants are strongly incentivized to write essays that sort of emphasize racial discrimination, racial trauma, regrettable dimensions. And that is especially ironic because conservatives for a long time have said the problem with affirmative action is that it instills a sort of victimology mindset and that that's very difficult to make advancement in society when you've construed yourself as a victim.
- [41:36]
A
This infuriates him. He's written whole books about this.
- [41:39]
B
Yes, exactly so. But it seems to me that these essays are a lot more constitutive than simply checking a box which happens at the doctor's office or even some DMVs. Whereas a successful college essay requires drafting and redrafting and polishing and refining. And it seems to me that that's going to instill it. You ask whether this is foreseeable or unforeseeable. Some colleagues of mine say maybe the Robert's Court was sort of twirling its collective mustache and that this was not a vice but a virtue of instilling this. I will not go that far. I do not go that far in the book. I think that one of the difficulties here is that conservatives have been railing against affirmative action for so long with sort of kitchen sink style argumentation that there wasn't enough thought that went into what is the new approach going to look like and what are the frailties of that approach and are they actually worse than affirmative action? And I want to say I am a defender of affirmative action. It is not a first best plan. It is a second best plan at best. It has frailties, but it also has made tremendous improvements to America society.
- [42:58]
A
Justin Driver is the author of the Fall of Affirmative Action Race, the Supreme Court and the Future of Higher Education. Thank you so much.
- [43:06]
B
Thank you. I really enjoyed the conversation.
- [43:13]
A
And that's it for today's show. Cory Warra produces the Gist. Ashley Khan is our production coordinator. Jeff Craig runs our social media. Kathleen Sykes writes the Gist list with me today on the Just List. Well, on Wednesdays we run a long piece. I call it the Pesca profundities piece. And I'm running a piece that originally ran in the Free Press, a piece of mind that I've been working on for a long, long time. And audio version of this will be coming down the pike. Text 33777 the word Mike. Text the word Mike. Get 25% off. Just list and substack subscriptions. All right, but thanks to everyone who made this possible, but especially Michelle Pesca who helps me camera angles and cap placement. Oomproo G Peru Duparu and thanks for listening. Marketing is hard, but I'll tell you a little secret. It doesn't have to be. Let me point something out. You're listening to a podcast right now and it's great. You love the host. You seek it out and download it. You listen to it while driving, working out, cooking, even going to the bathroom. Podcasts are a pretty close companion. And this is a podcast ad. Did I get your attention? You can reach great listeners like yourself with podcast advertising from Libsyn Ads. Choose from hundreds of top podcasts offering host endorsements, or run a pre produced ad like this one across thousands of shows. To reach your target audience in their favorite podcasts with Libsyn Ads, go to Libsyn ads.com that's L I B S Y N ads.com today.