How Long Will Affirmative Action Last?

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S1: Hey there. This episode contains just the tiniest bit of salty language. Okay here’s the show.

S2: There’s a couple of things I need to tell you about my guest today. His name is Ellie Mostel. The first thing you need to know is that he went to Harvard twice actually college and then law school. Second thing you need to know is that he’s black. That means he’s deeply familiar with people questioning his credentials how he’s gotten to where he is now.

S3: I have heard that since I set foot on campus in Cambridge from a certain kind of white people. And that gets them frustrating because I can say that I sent you into the goddamn ground.

S4: You don’t want to comment me on it straight. Maybe me.

S5: You know you want to do some math OK. Maybe you you do not want to come for me on an L set or an S.A.T. or a GRC. I will embarrass you and your family and having the here white people not get that. My whole life has been frustrating.

S2: These days Ellie writes for The Nation edits the blog Above the law and in the last week he has been thinking a lot about college admissions how we decide who’s in and who’s out how that conversation can so quickly devolve into a fight about how deserving you are. Especially because his alma matter has been in court trying to preserve its very particular admissions process.

S6: The anti affirmative action group is Students for Fair Admissions filed the lawsuit in 2014. The trial sparked protests from both sides. The plaintiffs claimed Asian-American applicants have the best academic records but the lowest admission rates among any race because according to the group Harvard raises the bar for Asian-Americans and lowers it for other races.

S2: You might have heard about this case it’s about affirmative action. A group of Asian-American students sued after Harvard rejected them. They said they were qualified but the school didn’t let them in because of their race. A judge in Boston just decided those students didn’t prove that case. But during the trial all these details emerged about how Harvard sorts and rates its applicants.

S3: One of the ratings of school support that means the that basically is a measure of your references right like your teachers and guidance counselors and whatever and Asian-Americans were scoring just to take lower than white students were scoring on this metric which when you think about it is shocking because Asian-Americans are scoring so much better than their white counterparts in terms of test scores and extracurriculars right. So why is it that teachers when they’re writing their RECs are kind of like Johnny’s OK if they’re Asian-American. Right. But if they’re white apparently they’re like Oh my God Johnny here’s a superstar here’s going to rule Facebook one day like that like what the hell is that that is called implicit bias.

S2: The problem is this case wasn’t about addressing bias. It was about affirmative action and affirmative action is a system with flaws a system. This lawsuit wants to destroy not fix in this case. The judge made a decision that was a real defense of diversity.

S7: It was a beautiful decision. Yeah. I mean you you really said it was like moving.

S3: It’s one it’s one of the best legal defenses of affirmative action I have ever read and I’ve read a lot but she also felt the need to go to the mat completely.

S7: You know she said that Asians didn’t have a grievance here. She said that you know testimony from admissions officers showed that there was no discrimination against Asian students.

S3: She’s fighting the long war. She’s fighting the war that’s brought to our table as well.

S4: Like remember we keep saying Asian-American students.

S5: The people complaining in this lawsuit they were organized by white conservatives a man named Ed Blum who has made it his life’s mission to end affirmative action. The Asian-American students plaintiffs in this case had their point co-opted by a white conservative movement that is hell bent on ending affirmative action today on the show how the original intent of affirmative action has gotten twisted and warped especially when it winds up in the court for the last 40 years.

S8: Critics have been chipping away at this policy which is why L.A. is worried about where this case goes next. I’m Mary Harris. You’re listening to what next. Stick with us.

S2: Once you start looking at the way a school like Harvard picks students. It’s so selective that Ali says of course it’s biased. It has to be. They get about 35000 applicants a year. The question is who’s benefiting from this biases and who’s losing out because sure there’s evidence that if admission were doled out based on grades and test scores alone Harvard would admit twice as many Asian students. But there’s also this statistic that 43 percent of white admissions are Legacy’s donors athletes.

S3: The conclusion is inescapable that there must be at least some Asian students that have a legitimate beef with how they are being selected.

S2: Bias is baked in and Ellie says it starts as soon as an application comes in the door.

S3: It’s not affirmative action that is keeping Asian-American students out of Harvard. It is Harvard’s own way of skin in the cat right. The first sort that Harvard does is to sort people into geographic regions for lots and lots of people that seems like a benign sort. It is not a benign sort. If you are a non-white person because if you know anything about this country demographically we know that non-white people are not evenly distributed throughout the country. Non-white people are not evenly distributed throughout any state. We are clustered we stay we are in our communities we stick together right. So if you are a high achieving Asian student in your Northern Californian sort in your Northern California docket as Harvard calls it guess what you’re competing against a whole lot of other high achieving Asian students right. God forbid you’re coming out of San Francisco as a merely middling achieving Asian American Student. You know you aren’t going to get noticed whereas if you’re a high achieving Asian student coming out of Branson Missouri people he knows that if you’re a high achieving Asian student coming out of Corpus Christi Texas people might notice that differently right. So that first geographic sort is a sort that not only forces high achievers clustered on coasts and in high income ZIP codes to compete against each other before they really get to compete against the rest of the class. It also unbelievably benefits white students whose white students are everywhere because white students everywhere. And if you have a commitment that you’re going to have the kids from Idaho and the kids from Montana and the kids from Branson will then guess what. That’s overwhelmingly going to end up being a spot for a white kid.

S7: There was this moment when the dean of admissions testified Dean Fitzsimmons and he talked about this geographic sort because Harvard sends invitations to people from different parts of the country because they really want people from say Nevada to think about Harvard and you get this geographic diversity and it is interesting because it went even beyond what you’re saying which is that an Asian-American student in Las Vegas wouldn’t get one of these invitations even if he got a higher score than a white student in the same area. And it was this idea that there is someone who is more Nevada and then an Asian-American Nevada. It was almost a ding from there. Yeah it was disturbing.

S3: It wasn’t. It’s not it’s it’s discriminatory. But absolutely. When Harvard is looking at making sure its classes diverse geographically they also seem to want by the Dean’s own admission people who represent what we think of as their geography Cowboys which you know is a choice it is a choice that is a choice that I’m not sure that we should be comfortable with.

S2: I’m not sure that they should be allowed to do this kind of sorting. It’s not the only evidence of bias that Asian-American students might face during the application process.

S3: There’s another rating that they have the personal personality rating essentially that’s basically a measure of your interviews with you know because when you go to when you apply you have to interview with an alumni and when you write the interviews are with people who are Harvard alarm so they are people who have traditionally been the face of Harvard.

S9: So they are more likely to be older white people.

S3: Right. And the the personal rating is a measure of those kind of interview scores and again Asian-Americans scored slightly lower.

S10: Asian-Americans have worse personalities than white kids. I don’t think so. I’ve met white people. I don’t think that you can say that that there is some kind of like Asian personality that isn’t Harvard material was all right. That’s not right. That that’s slightly lower metric is another reflection of implicit lines trying to get Harvard to move off of some of these metrics that have implicit bias or at least recognize and correct for the implicit bias in these metrics would actually be use would actually I think help to cut some of the discrimination that the Asian-American community faces. But that’s not what this lawsuit is about.

S9: Lawyers for the plaintiffs argue that Harvard hasn’t done enough to achieve a diverse student body using race neutral admissions standards.

S3: The the arguments that the plaintiffs made were made to attack affirmative action as a policy not to attack the discrimination of Harvard’s admissions process. Those are two different things. And the reason why the judge’s decision came out the way it did and it sounded the way it did is because she is fighting that battle that will eventually be appealed to the Supreme Court. She is fighting this battle on affirmative action grounds because that is the case that was presented to her and not on discriminatory grounds which is what we actually should have been talking about if we were going to have a whole goddamn lawsuit over it in order to understand why this lawsuit was filed in the first place.

S2: You’ve got to understand that the courts have been fighting about affirmative action for four decades. This all started in 1978 with a case that made it all the way up to the Supreme Court Regents at the University of California versus Bochy. Alan Bochy had applied to medical school twice was rejected both times. He blamed the fact that the school had set aside 16 places in each entering class for qualified minorities.

S3: And then he sued up and sell back affirmative action have been thought of as a remedial kind of restitution for slavery and oppression. It was a much more of a point and click. You did not allow black and brown people into your school for hundreds of years. In the case of a Harvard which has been pumping out white people since the 60s hundreds right like you did not allow black and brown kids into your hallowed institution for hundreds of years. And now you’re going to change. And now we’re going to make you change. Now you will start admitting black and brown people because right. And that was a really powerful rationale firm affirmative action for the first you know 10 15 20 years that the policy was instituted back he basically disregarded that. Back back through that back he threw out the notion that affirmative action was a remedial policy to overcome the legacy of slavery and oppression and instead adopted a secondary reason the reason that was always there. But you know I had been a lesser reason from affirmative action that diversity itself is a good thing that helps all students not just the black and brown students that are getting admitted but the white students that are getting to learn with them since that came down study after study after study has shown that they are right. Study after study after study has shown that diversity enhances the learning environment for all peoples. And so post backing diversity has become the main the main centering for affirmative action as opposed to as opposed to racial renumeration and reparations. Conveniently it feels less radical.

S9: It does feel less radical that way making diversity the goal of affirmative action was controversial. Justice Thurgood Marshall wrote a stinging argument against the court’s decision saying affirmative action’s real power addressing years of chattel slavery Marshall was concerned that changing the policy’s mission would dilute its power over time. Elie disagrees with him by the way.

S3: I personally also believe the diversity argument is better. I think it is more accurate. I think it has much more to do with how a class should get made so that yes the farm boy from Iowa has quite a lot to offer in this kind of elite ivory tower world. I graduated college two of my best friends were white kid who basically grew up in a swamp in Florida. I don’t know it’s some kind of crazy like backwoods like alligator pit. And then my best man at my wedding is a guy I met at Harvard who the you know backwoods Maine Stephen King spooky land all right. My understanding of an issue like gun rights has been informed so much by traveling to alligator pit land and traveling to spooky Stephen clean land with these friends of mine and kind of realizing man cops be far away. And they’re like animals here. Maybe that shotgun is something that you. What the hell is that. It’s a chipmunk dude. OK well I don’t know what like that that has. That has helped my experience on something as that I have thought and read about as much as on gun rights.

S9: So you’re saying you really believe in this idea that diversity is a noble goal you’ve seen it in your life. Did other schools change their approach after the Baca opinion came down.

S3: Yes because the second thing the he did was outlaw quotas and quotas. It’s the cynical. It’s the most cynical possible way of doing it. It does not appreciate diversity. It does not appreciate a holistic contribution to the community. It’s just like we got fed up. We got to fill a box. You’re black. You’ll do. Come. It’s the worst way. And that’s when they’re trying to use quotas to get people in what they usually do is use quotas keep people out. We have enough Jews here. We have enough Asians here. Goodbye. Go find some other school that hasn’t filled up all of its Jewish quota leave leave right. So back outlawed quotas and that meant a lot of these universities that were using them because they were lazy had to then figure out how to do diversity in the years since the back a decision the courts continued to limit the scope of affirmative action.

S9: One of the cases that did that was brought by Barbara Grutter. She asked the court to intervene when she didn’t get into the University of Michigan’s law school.

S3: So backing narrative from live action Grutter came out in 2003 and it narrowed it even more. And it was written by Sandra Day O’Connor. And in her opinion where she laid out the test for why from live action was still OK. Just barely. She says and I am I think I am quoting this correctly. We we assume that within 25 years racial preferences will no longer be needed just I have never.

S10: It is hard to to read a decision where the person writing of the decision is disgusted with her own opinion. Right.

S11: She hates that decision. Republicans hate that decision. I cannot think of another case where the judge said hopefully in 25 years we can overturn it.

S10: That’s ridiculous the problem that I see is not just that we’ve forgotten why affirmative action here is here in the first place which is again the renumeration and restitution of 400 years of slavery and oppression.

S3: It’s not just that it is also because Republicans white Republicans especially do not accept diversity itself as an important goal. And that is why affirmative action has been constantly under attack.

S2: This latest Harvard case the one a judge ruled on just last week. For now it looks like a win. The judge’s opinion was a moving defense of affirmative action and the ideal of diversity. But looking at the last four decades of case law Ali knows this case is not over so this case is going to be appealed and it will wind up at the Supreme Court yes where they will kill it Clarence Thomas would you know how Ruth Bader Ginsburg does all these things stay alive.

S3: Like Clarence Thomas will do whatever he has to do to stay alive to be the guy who kills affirmative action. This is what he wants to do. And they’re going to do it. Look if you look at the last affirmative action case the fisher Abigail Fisher case for Texas like that was 5 4 and that was just that that was they didn’t kill it during Fisher only because Anthony Kennedy. Kennedy has not been replaced by Brett Kavanaugh. They will kill it. In my experience as a writer and a thinker there is not one issue. That pisses white people off quite. Honestly though the people who don’t like it. The anger the real feeling that it’s deeply unfair is so real.

S12: For them. And it’s funny. And I do mean that in a ha ha. Funny to me because what you see is that when white people feel like their race is being held against them even for a second they lose their minds they can’t handle it. Now I again I don’t think affirmative action is actually racist but I understand that white people certain white people who don’t like it feel like it’s racist and that is why that feeling that they are being racially. Underappreciated. Is why you have had the commitment to stop the program since it was started despite its success.

S13: L.A. Thank you so much for joining me. Thank you. L.A. missed out rates for the nation and edits above the law. All right. That’s the show. What next is produced by Mary Wilson Jason De Leon Morris Silvers and Danielle Hewitt. I’m Mary Harris. I will talk to you tomorrow.