Deep Dive Episode 191 – Talks with Authors: A Dubious Expediency

“A Dubious Expediency: How Race Preferences Damage Higher Education” is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book’s title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote: “To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.” In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a whole.


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.



Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, July 26, we continue our “Talks with Authors” series with a discussion of the recent book A Dubious Expediency: How Race Preferences Damage Higher Education. It’s a collection of essays, and we’re very honored to have the two editors for this book present on today’s virtual event.


My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.


As I mentioned, today we are fortunate to have with us the editors of A Dubious Expediency, whom I’ll now introduce. Professor Gail. Heriot is a professor of law at the University of San Diego law school where she teaches in the areas of civil rights, employment discrimination, torts, and product liability remedies. Prior to entering academia, she practiced with Mayer, Brown & Platt in Chicago and Hogan & Hartson in Washington, DC. She also served as civil rights counsel to the U.S. Senate Committee on the Judiciary and is Associate Dean and Professor of Law at George Mason University School of Law. She joined the USD School of Law faculty in 1989. She’s also the Chair Emeritus at The Federalist Society’s Civil Rights Practice Group Executive Committee.


Professor Maimon Schwarzschild is also a professor of law at the University of San Diego law school. Professor Maimon Schwarzschild served in the U.S. Department of Justice in Washington, D.C. during the Carter administration. He has practiced law as a barrister in London and with the Chadbourne Law Firm in New York. And he was an accredited journalist at the United Nations for five years and had White House press credentials during the Nixon administration. He joined the USD School of Law faculty in 1982 and has been a visiting professor at the Hebrew University in Jerusalem, the Sorbonne in Paris, and the University of California, San Diego. And we’re very pleased and very honored to welcome both of these distinguished professors to our virtual event this afternoon.


For our audience, if you would like to ask a question during the event, please enter that question in the Q and A feature at the bottom of your screen. You can enter questions at any time and we will answer questions, hopefully, towards the end of the program, but please do feel free to enter those questions in the Q and A feature at the bottom of your screen. And with that, we’ll now get started with our event. And I’d like to ask — just to kick off the discussion­— why did you write the book? And either one of you please go ahead.


Prof. Gail L. Heriot:  Oh boy. Maimon and I thought that you hardly ever hear the arguments against race-preferential admissions on campuses today, and yet I know that there are many academics who oppose race preferences. But the atmosphere on campuses today, and increasingly across the country, makes it difficult to talk about any issue that deals with race in an honest and open way – and, actually, to talk about the real arguments that can be made.


So we got together a group of authors, some of whom are academics, and we put together eight essays. We are some of the authors ourselves, but we also have John Ellis, who is a professor at University of California at Santa Cruz; Peter Wood, who is a professor of anthropology, was and now is the president of the National Association of Scholars; also, some non-academics like Heather MacDonald. And we thought it would be a good idea to present the argument so that people understand there are good arguments against race-preferential admissions and these are things that have to be paid attention to. And we hope that readers will take a look and will see that these arguments are, in fact, pretty measured and based on real evidence, and I think the book was worth doing. It will show people that these arguments do exist.


Prof. Maimon Schwarzschild:  I think that the book on the topic is especially timely because the ideology and the practice of racial preferences in the universities has come to just predominate to an extraordinary extent. Everything that goes on on campus — and the tendency of it is towards separatism on campus, which is both educationally very dangerous and socially very dangerous — and whereas for a while it was possible to think or to hope that the phenomenon would be restricted to the campus, increasingly and especially with extraordinary speed — and in the last couple of years, this has proliferated into the, — sort of this escape the bottle has proliferated into the society as a whole, which everybody has seen over the course of the last year or two. And so, all the more important to set out what cancel culture deters people from stepping out, mainly the very good reasons why the path that universities have taken and colleges have taken towards racialism and racial preferences is a bad idea and ought to be rethought.


Evelyn Hildebrand:  Great. Thank you. I wanted to ask, in looking up the book before getting in touch with you and organizing this event, I was interested in the title because it was not immediately apparent to me the connection between the title — obviously, A Dubious Expediency — and then the subtitle. And, at least from my research, it looks like it’s drawn from an opinion from, I think, the 1960s — obviously, correct me if I’m wrong — but maybe you could explain the story of the title and if there were other titles proposed, where all of that came from.


Prof. Gail L. Heriot:  Sure. I can tell you where the title came from. It’s not from the 1960s. It’s actually from the 1970san opinion of Justice Stanley Mosk of the California Supreme Court in the grand old case of Bakke v. Regents of The University of California, which then went on to the Supreme Court. And Stanley Mosk is an interesting guy. He was a liberal’s liberal. And back in the 1940s, he was way ahead of the Supreme Court when it came to civil rights issues. He was a Superior Court Judge at the time, then he went on to become the California Attorney General. And as attorney general, he created a civil rights division there at the Attorney General’s office. He banned the Professional Golfers’ Association from using state golf courses on the ground that they discriminated on the basis of race.


And then he gets to the California Supreme Court, and along comes Allan Bakke. And Allen Bakke was a Vietnam vet. He was white. He had good grades, good MCAT scores, the sort of thing you need to get into medical school, and he didn’t get in. And he didn’t get in because the University of California at Davis Medical School had an affirmative action program where they set aside seats based on race. And so Bakke sued saying he was being discriminated against on the basis of race. And bless his heart, Stanley Mosk is outraged, and he’s basically saying, “Look, I’ve been working all my life for racial equality, and now you’re telling me that we’re just going to turn the tables and we’re just going to discriminate against a different group?”


And so he called the Affirmative Action program at the University of California at Davis. He called the whole thing a “dubious expediency.” Unfortunately, although the California Supreme Court wrote a very strong opinion authored by Justice Mosk condemning that program, when the case got to the Supreme Court of the United States, it was — well, four justices said, “This is illegal under Title 6.” Four justices said, “Well, basically, if you’re doing it to benefit a racial minority, basically, as far as we’re concerned, anything goes.”


And onethe guy in the middle, Lewis Powell, whose civil rights record was not so great — he’d been on the Richmond School Board, and during the period of Brown v. The Board of Education, he had dragged his feet on integrating the schools there — but he wrote a wishy-washy opinion that basically said, “I’m going to rule in favor of Allan Bakke; he was badly treated, but diversity is a good thing and a little bit of thumb on the scale for diversity is okay with us.” And, boom, once that door was opened, it ended up being opened very wide. The kind of preferential treatment we see today is not a tiny thumb on the scale in order to increase diversity. It’s a very strong preference. It’s a very strong preference.


Evelyn Hildebrand:  Maybe you could talk a little bit more about the results of that preference since we’re now — that opinion was from the ’70s, as you said, and we’re 50 years past that timeframe. Has that backfired, would you say?


Prof. Gail L. Heriot:  Yeah, I would say that it’s backfired very badly. And first and foremost is the issue — and it is generally called, mismatch. And by that, what is meant is, essentially, we are not doing students any favors, regardless of their race, by giving them preferential treatment to get into schools that have very high academic credential requirements. And the reason we’re not doing them any favors is that, for example, with African Americans, we would have more African American doctors, more African American engineers, more African American scientists, more African American college professors, generally, and probably more African American lawyers, as well, if colleges and universities engaged in race-neutral admissions policies.


And the reason for that is that while some students going to outperform their entering academic credentials when they get to college or law school or medical school, and some students will underperform theirs, most students will perform in the general range that their academic credentials show. And that means that while students are getting a preference, whether it’s based on race or on legacy — if your mother or father went to that school and you got in because your parents went to that school — those students will tend to perform in a way that puts them towards the bottom of the class, and especially for science and engineering because there are a number of studies on this already.


Students who are at the bottom of the class are very unlikely to follow through with an intention to major in science or engineering. Sometimes they flunk out. Sometimes they just simply change majors to a soft major that is less demanding but ultimately does not lead to the same kind of job. But we would have more students successful if they went to a school where their entering academic credentials put them in the ballpark with other students. And that’s a devastating accusation here to say that here we have a policy — and the originators meant well. They wanted to help integrate African American and other minority students into the mainstream. But it turns out it does the opposite. It turns out it encourages students not to go on to graduate school, not to get into law school, not to go on to medical school. And that’s a real tragedy.


Interestingly, here in California, we passed Proposition 209. We can talk a little bit more about that later, but Proposition 209 got passed back in 1996, and it amended the California Constitution to forbid preferential treatment based on race or sex, for that matter, in college admissions among other things — that is, state college admissions. And after it passed and went into effect, guess what? An economist by the name of Peter Arcidiacono did a study of the effect of Proposition 209 at the University of California, and what he found was that African American students were more likely to major in science and engineering once Proposition 209 had gone into effect. Their grade point averages at the University of California went way up.


Suddenly we started getting lots of honor students who were African American when we hadn’t had so many. We had very, very, very few back before Proposition 209. Graduation rates for African American students went up, as well. Now, some people have said, “Well, graduation rates were going up anyway.” And that’s true. But Arcidiacono went to the trouble of trying to figure out, well, how much were graduation rates going up generally, and how much of this is caused by Proposition 209? And he found that a good chunk of it was caused by the passage of Proposition 209. So it was a triple crown. If only we did this across the country, we’d have more African-American professionals.


Prof. Maimon Schwarzschild:  A kind of related irony, really, of racial preferences in higher education has been, as Gail just said, the intent behind this for most of the promoters of this several years ago and more were great. And the idea was that a mild preference would be integrative, would promote racial integration and racial assimilation. The truth is that the effects of this have been exactly the reverse, that the emphasis on race and the divergence in qualifications by race has led toward a growing segregation, first and foremost on campus.


And what you see in recent years, growing in recent decades, are racially separate dorms, racially separate graduation ceremonies, racially separate social life, racially separate courses, academic courses, and even whole departments. And once again, where racial segregation preferences have led to on-campus and, increasingly, spreading into the society as a whole in a really — in a corrosive way. So, the ironies of academic racial preferencesboth mismatch and sheer racial segregation from race consciousness, race obsessionhas exactly counteracted the hopes and the ambitions of the people who have been fairly quick promoting this, beginning 50 years ago and more.


Evelyn Hildebrand:  That’s a fascinating discussion. I’m reminded — I think it was a few months ago where I saw — and I don’t remember the school, but there was a campus student center that was restricted to people of minority descent, and students who were white and who tried to go in were asked to leave. And there were many political commentators who were commenting just on the irony of the situation it’s createda reverse racismthat people seem to not be aware of or not pick up on, but just a fascinating, fascinating discussion.


Let’s turn to another area. And this, I think, will lead towards a Supreme Court discussion, actually. The State’s Asian Americans are said to be the primary group that’s disadvantaged by race-preferential admissions, and I think that leads in, probably, to a discussion of the Harvard case that’s pending before the Supreme Court. A century ago, the disadvantaged group was Jewish Americans. Do you see any parallels between the treatment of the two classes? Any comments there?


Prof. Maimon Schwarzschild:  Yeah. The parallels are troubling and a little chilling, really. The situation at the turn of the twentieth century was that private universities and public universities, especially medical schools, but not just that — felt that they were overwhelmed. Applications from the children of recent Jewish immigrants who had entered — come into the country as immigrants in large numbers at the end of the nineteenth century, and the academic quality of those applicants coming from very poor familiespeople from eastern Europe, essentially, who had arrived — their parents not long before, with absolutely nothingbut these were ambitious kids, and they were academically talented kids.


And they began applying for colleges, including the Ivy League colleges who didn’t want them. And they didn’t want them for social reasons. They didn’t want them because it looked as though it was going to be too competitive with the prep school kids that had been their traditional constituency. And through a variety of, more or less, overt discriminatory tactics, the ivy league schoolsand not just the ivy league schoolsdid everything they could to exclude as many of these Jewish applicants as they possibly could, to the point that Jewish kids who wanted to become doctors were, essentially, absolutely shut out of the medical schools. Eventually, the Maimonides Medical School in New York was founded as an alternative because the established medical schools were simply closing the door. You see the same thing happening for Asian American kids in the twenty-first century. You now have to be, as an Asian American applicant, to go to college, you have to be much better than everyone elsenot just much better than other minorities, but much better than white applicants. And this is true to get into all of the competitive colleges.


The Supreme Court is going to be confronted with this if it accepts the case. There has been a challenge to Harvard’s highly discriminatory exclusion of Asian American applicants in a case called Students for Fair Admissions that went before a federal district judge in Boston who was highly favorable to Harvard and to its discriminatory [inaudible 20:33]. And that was upheld by the First Circuit for an application for certiorari pending before the Supreme Court, which, a little weirdly, rather than deciding whether to grant certiorari or not, has sort of kicked the case — is doing what it can to delay the case and has said it wants to hear from the Biden Administration on its views about affirmative action and preferences, as though anyone’s in any great mystery or doubt about what the view of the Biden Administration would be.


Prof. Gail L. Heriot:  Weirdly, that made me kind of optimistic that they’re stalling. They could have rejected the petition, but people had already been talking about how the Court had taken on quite a few controversial cases for next year, and this just seems to me their way to say, “Can we push this off to another year?” Because — Maimon is rightobviously, the Court knows what the Biden Administration’s view is going to be on this, but they can probably push this out to 2023 if they play their cards right on this.


And what’s interesting is some of the listeners may remember that in the case of Grutter v. Bollinger, which was very accommodating to racial preferences — that was a 2003 case – it was decided 5-4, I believe, with Justice Sandra Day O’Connor writing for the majority. And she says in that opinion that she believes that in 25 years this will not be necessary and that we may not approve it at that point. And guess what? If the Court puts off a decision until 2023, it won’t yet be 25 years, but it will be 20. And it will be way past time to start putting pressure on these practices and to start reminding people about — race discrimination is a bad thing in all its forms. And with all the data coming in about mismatch, it may be that we finally have a case where the Court will start the processand I suspect it’s going to be a long processof weening the country from these racial preferences. So we’ll see.


Prof. Maimon Schwarzschild:  In the meantime, the degree of discrimination against the children of Asian immigrants and Asian American kids is not a small — it’s not a small discrimination. It’s quite extraordinarily deep and broad. In our book, a chapter on this by Lance Izumi and Rowena Itchon, is chapter and verse of an extraordinary array of unfairness [inaudible 23:35] that are wreaked on hard-working, on academically talented Asian American kids who are denied the opportunities that they earn simply because of their race and out of a perverse kind of racial engineering that the preference and suasion embodies. It’s a dispiriting in its austerity situation, and the more you know about the actual facts, the less defensible any of this is.


Evelyn Hildebrand:  Maybe if we could turn to the question of mismatch, we do have an interesting question from the audience that I’d like to read at this point so you both can weigh in. Mark Madle (sp) asks, “ While minority applicants who get bumped up to more competitive schools by racial preferences would presumably be better able to thrive at less competitive schools that they would have qualified for without racial preferences, wouldn’t the lesser resourcesso a smaller endowment of, –perhaps, the lower-ranked schoolslead them to provide less in financial aid and support systems and diminish the chance for those minority students accepted to the lower tier schools to thrive?” What are your thoughts there?


Prof. Gail L. Heriot:  Well, first, we’re not necessarily talking about lower-tier schools here. We’re talking about, sometimes [inaudible 25:00] runs down. They’re still talking about an elite school and, for example, there is evidence that a student who goes to Princeton but ends up at the bottom of the class — which is going to be the case for most students who get a strong preference — more likely to go on to medical school if they’d gone to Penn State. Penn State’s a good school, and that means they actually come out a doctor.


And so what we know is what’s based on the actual empirical studies. If it’s true — and it seems to be from the empirical studies ­— that, particularly, in the area of science and engineering, they are more likely to get that degree, then it suggests that whatever the competing factors are, they’re weighing out in favor of going the school where your academic credentials put you in the ballpark with other students.


I don’t think we’re necessarily talking about schools that don’t have that same level of resources, but if we are, then it’s still clear from the empirical data that it weighs out in favor of going to the school that’s a little bit less in the pecking order and hence, one’s academic credentials puts you in the ballpark with other students.


Prof. Maimon Schwarzschild:  It’s really true for anyone. If you or your kid is offered any kind of preference, whether it’s a racial preference, an athletic preference, or a legacy preference, and you take that — and so, that it’s very often, quite typically, a poisoned chalice. It’s a gift that you would be much better off not accepting because if you go to a school where you are — where your qualifications are significantly less than the median, the average, the chances that you’re going to do badly, and the chances that you’re going to be discouraged, and the chances that you’ll lose out on opportunities that would be there for you at a school where you are qualified to be at, are just enormous.


So, the bad effect of this on the people that it’s supposed to, and is intended to, benefit are very concrete. And it would be true in a non-racial context, but it’s very true in the racial context, in part, because the preferences are so enormous. You’re not talking about a light thumb on the scale. At many schoolselite and not so eliteyou’re talking about differences of hundreds of college board exam points. And with that kind of preference, the supposed beneficiaries are at a huge disadvantage from the very first day they arrive on campus. The poisoned chalice metaphor is all too appropriate.


Prof. Gail L. Heriot:  It’s interesting to me because, like, to some people, the mismatch data is counterintuitive, but it’s always kind of intuitive to me in the sense that when I was in high school — I’m good at math. I mean, let me say that. I’m good at math, but MIT, Cal Tech, those are — the high school students going into those schools have been living and breathing math and science since they were babies. I have a dear friend who is an astrophysicist, and he did go to Cal Tech for graduate school. And I figure I’m good at math. I’m good science. And he was telling me about the stuff he was doing in high school; I’d have washed out of math and science at Cal Tech or MIT.


I actually have a different friend who has a very talented daughter who did, like, the college tour a few years ago, and she’s a math and science type. She went to a very elite math and science school. But as they were touring these schools, the tour guides were almost always a minority student, and they were trying to communicate, this is a place that minority students should come to, but the thing that happened — it was weird — was that in each case the tour guide would say, “Well, I came here to major in chemistry or physics or whatever, but actually I’ve switched majors to…” and it would always be something that wasn’t math and science. And these were schools that were especially designed for math and science geniuses. And these studentsthese minority studentsthey were great students.


They didn’t — even with a preference, they were very talented, and they would have succeeded in their math and science desire at any other college or university on the planet. But they went to the one or two schools that the competition was too rough for them and they ended up majoring in communications. These students were really top-of-the-line students but not quite up there with MIT or Cal Tech. And that’s a waste of talent.


We can’t rely on MIT and Cal Tech to turn out all of our scientists and engineers. That is not going to happen. We need a lot more scientists and engineers than that and yet, send our minority students there. Not all of them need a preference. Some of them are going to get in anyway, but those that need that preference will end up, all too often, majoring in communications or something that may be a wonderful thing but isn’t really what they wanted to do with their lives and does not lead to as prestigious a career as math or science majors would have.


Evelyn Hildebrand:  That’s a great discussion. I think it kind of lends itself to the next question I wanted to ask, which is public opinion. And I think it’s great that this book has been released at this point because, as you said, it’s been so many years since Grutter and the timeframe is, perhaps, right for revisiting this, but the Court would have a lot of work to do. And I think that public opinion also needs to be influenced or addressed in some way. Like, generally, are people aware of this evidence? What’s the general feeling? And are they open to being convinced, I guess?


Prof. Gail L. Heriot:  What’s interesting is that public opinion has always been against race-preferential admissions going back all the way in time. Most of what I’ve read starts in, like, the late 70s and 1980s. But public opinion has always been against race preferences. And the more clear you make the polling question, the stronger the opposition is and fair, as well. I mean, anybody can write a polling question that’s loaded, but a fair question that makes it clear what’s at stake, makes it clear that without race preferences at the most elite schools you would have fewer minority students than what we might otherwise prefer, but nevertheless, the answer is always, “We’re against it. We’re against it.” Usually, by about 2-1.


And they don’t know, often, all the arguments. And that’s why we thought it was important to write the book. But it’s not just polling questions either. It’s also when it comes to a vote. In 1996, I co-chaired the campaign for Proposition 209 — and I noticed in the question-and-answer bar that somebody wanted me to mention Proposition 209. Let me go into it a little bit more now. What it did is it amended the State Constitution with words — essentially this, “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, sex, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” I think I got it right there. If I didn’t, I’m, like, within a word or two.


And, as I said, immediately the University of California, as soon as they implemented that — and it took some litigation to get it to the point where they were ready to implement it. There was a mess right after that election, but it passed by a strong majority. And it had a good effect. African American graduation rates went up. Percentage of STUB majors for African Americans went up. Grade point averages went up. But I don’t think the public ever learned about that. They instinctively opposed race discrimination, and that’s a good instinct on the part of the American people. Would that it be true that the colleges and universities themselves and the elites that make policy had that same instinctive aversion for race preferential treatment, but voters instinctively are against it.


But what’s important is that they understand all the argumentsthat they see the data. And that’s why we wrote the book. It just so happens that last year, here in California, the California legislature — and you can bet that is a deep blue legislature. This is California, and legislature is well to the left of the average voter here. So that’s saying something. They tried to repeal Proposition 209take it out of the Constitution. But to do that, they had to put it to a vote of the people again. The California legislature does not have the power to just remove something from the Constitution that was put there by a popular initiative.


And everybody thought, well, this is going to be a piece of cake. This is California. It leans heavily to the left. And I will have to admit, in the first couple of weeks, I was worried they were going to win, too. And I knew that polls had always gone the other way, but money was streaming into this initiative. They had 16 times more money than the “no.” And I co-chaired the “no” campaign, as well. It was like the old gang got back together and we didn’t have any money. But we had the arguments that voters appreciated. We didn’t need tons and tons of money. We had two things. We had the ability to write a cogent argument in the voter pamphlet, and most voters read those arguments. That’s one of the good things about California voters, they learn that they’ve got a responsibility to do the best they can on these initiatives. And I can tell you, it can be somewhat daunting. There are sometimes very technical initiatives in there, and I’m thinking, “Oh my gosh. I’m a lawyer and I’m having trouble with this stuff.”


But we also had the volunteers and Asian American volunteers, parents who would walk through fire to stop the attempt to repeal Proposition 209 because they knew that their children, Asian Americans, were going to be the ones that would bear the brunt of the discrimination. And what’s funny is, here in California, it is perfectly legal to give a little extra bump to students who are from poor backgrounds, parents didn’t go to college, low income, and the like.


And repealing Proposition 209, its effect would simply be to allow racial preferences to upper-middle-class minority students. And that makes no sense to me. But some people think, “Well, a little bit of race discrimination is okay because African Americans are sometimes poor.” But that’s not how the system works. How the system works is that these are often well-off minority students who’ve had as many benefits as students of other races, often versus Asian American students who are immigrants or the children of immigrants, who really haven’t had time to establish themselves in this country; do not have a lot of money.


But at any rate, we ended up winning overwhelmingly. Proposition 209 is still part of the California Constitution. The same thing happened the previous year in Washington State. They had imitated Proposition 209 in 1998, two years after Proposition 209 went into effect, and the Washington legislature tried to repeal that. And again, they had to put it to a vote, and the people are in favor of race-neutral admissions policies. And I think that’s an important story that Americans — and it’s not just Asian Americans. It’s not just whites. We did well in just about every county in California in opposing the repeal effort, including counties that are overwhelmingly Hispanic. And it’s really only in the Bay Area, and I think Los Angeles, where we didn’t do quite so well.


In general, Californians oppose race preferences. The hard part is to convince the courts. If the American people do not find this a compelling purposethey don’t even find it a good purposehow can it be compelling under a strict scrutiny analysis?


Prof. Maimon Schwarzschild:  That, of course, is theoretically the legal standard which the Supreme Court, even in decision, is upholding. And invariably, when they uphold racial preferences, they do it by a very split Court, in 5-4 decisions, running back to Bakke, and 50 years ago — 40 years ago — and as recently as Fisher and Grutter. It’s always been 5-4 or, if you don’t have a full Court, 4-3 decision. Even when they uphold it, they consistently say that racial discrimination, including allegedly, punitively, denying positive discrimination, is suspect and requires a compelling statement just to justify and to [inaudible 40:18] form the basis for it.


And yet, the notion that this is a compelling state interest is extremely weak, and one way that it’s clear that it’s weak is the degree in which very substantial numberseven numbers of minority groups when black Americans, Hispanic Americans are told about this, there’s by no means overwhelming support for racial preferences by [inaudible 40:54]. So, the idea that something that people of all racial groups realize is wrong and realize is corrosive to the country — there’s a compelling state interest in that because the elites and the bureaucracies in the universities, and increasingly in the corporate bureaucracies, think that they want to do this. But the idea that this was a compelling state interest is very dubious.


Prof. Gail L. Heriot: Yeah, you know what got me, especially, about the Grutter case from 2003, 5-4 decision with the opinion by Sandra Day O’Connor upholding the University of Michigan Law School’s preferential treatment for African Americans — what got me is that she says in the opinion, “Yes, strict scrutiny applies.” But then a few sentences later she says, “But we should defer to the University of Michigan in its academic judgment, that this is something that is necessary.” I mean, the whole point of strict scrutiny is that you don’t defer. It is the opposite of strict scrutiny to say, “We will defer to the defendant.”


I mean for God’s sake, in Brown v. The Board of Education, what would have happened if the Supreme Court had said, “Well, you know, we’re not teachers. We’re not the Board of Education. We’re not experts in education. We should defer to the Board of Education of Topeka, Kansas, as to whether or not segregation is a compelling purpose.” I mean, that would have been just crazy. And yet, that’s exactly what happened in Grutter v. Bollinger. She didn’t say that she, as a justice of the Supreme Court, finds the purpose compelling. She says, “I’m not going to look that deeply into it. I’m going to defer to the judgment of the university.


But, like, the whole purpose of strict scrutiny is you’re supposed to take a microscope to the justification that is being offered, and you’re supposed to say, “Look, I’m not going to be a sucker for this. I’m not going to just agree for the sake of agreement.” And yet, that’s what she did. She says, “University of Michigan says it’s necessary, so I guess it is. Who am I to argue with the State of Michigan on this?” But what people need to do is jump up and down and say, “Wait, if that’s what strict scrutiny means today, then strict scrutiny is dead.” And that’s a very scary thought.


Prof. Maimon Schwarzschild:  One aspect of this is that the justification, thin as it is — going back to Bakke — is that there’s a compelling educational need in the judgment of the people qualified to make educational judgments, namely the faculty of the university. There’s an educational need for diversity and, therefore, for racial preferences in order to ensure that diversity. Increasingly, it’s very clear that these judgments are not being made by academics. They’re not being made by faculties. They’re being pushed on the colleges and universities by politicized accrediting boards, by state legislatures, by pressure groups of various kinds. And so the illusion that these are academic judgments to which the Court ought to defer — not that the Kansas School Board and Mississippi school boards in 1954 didn’t also claim that they had compelling reasonsgood reasonsfor segregation. But the illusion that this is the justification, that this is an academic judgment, is wearing thinner and thinner as you look at the way this is actually done. And I think there’s some prospect in that.


But if and when the Court revisits this, it will be certainly brought to their attention to the extent that its academic judgments that might be of compelling state interest. But that’s not what you’re dealing with here and all the more so, there’s a reason to be skeptical and take a really strict scrutiny of what’s going on, which are not academic judgments but they are highly politicized.


Evelyn Hildebrand:  Maybe we could turn to — and this is not directly included in your book, but we had an audience member who asks about the rise of race preferences in admissions at selective public high schools. So, on the question of strict scrutiny, would it be the same — would you have the same criticisms for the type of “strict scrutiny” that’s applied if there were a high school case or — I don’t know if this is a middle school issue yet, but at least for selected public high schools — same kind of criticism, same policies, same legal arguments?




Prof. Gail L. Heriot:  I think –.


Prof. Maimon Schwarzschild:  It would almost –.


Prof. Gail L. Heriot:  Go on, Maimon.


Prof. Maimon Schwarzschild:  In a way, almost stronger. Colleges and universities, many of them are public, but many of them are private. And so the question of private schools discriminating on the basis of race and ethnicity — at least it’s not directly a Constitutional question. That’s a statutory question. Public schools are public schools since they’re government entities and, what’s more, they’re compulsory. If you go to college, that’s a choice. Going to K–12 school is mandatory, and it’s an offense, and, obviously, it’s truancy if a kid doesn’t go.


So, these are compulsory things. And the idea that a compulsory state institution, and an enormously important one — in most states, if not all of them, the public schools are the single highest, most expensive — the thing to which the most public resources are devoted. So, these are absolutely central to state government operation. And the idea that, in the context like that, you are then to discriminate on the basis of race, if anything, even more corrosive and less justifiable than it is in the college conflict.


Prof. Gail L. Heriot:  It’s also the problem of, like — once you allow racial preferences at colleges and universities, and once you wink and say, “We’re willing to tolerate this,” it’s going to spread. And it has spread. And there were those who thought, “Well, we should be willing to allow a little bit of a thumb on the scale for minority students at colleges and universities, but we will hold the line when it comes to things like what the curriculum will be, who gets honors, who makes law review at a law school.” And it turns out that’s not what happens. When you relax standards at a college or university in order to have a racially diverse class — and let me footnote there’d be a racially diverse class no matter what — but once you do that, then there’s pressure in other areas.


Then it’s a question of, “Well, if we want to have preferences at the law school admissions level, then why not have preferences for who makes law review or who graduates with honors? And if we’re going to do that, well, why shouldn’t we be doing that in hiring at law firms? And if you’re going to do that, why shouldn’t we be doing that in high schools? Why shouldn’t we be doing that in every walk of life?” And I think in the last few years, people who’ve been watching closely have realized, basically, it’s everywhere now. And it’s everywhere for a reason. It’s everywhere because it was tolerated in the Bakke case and it’s grown from there.


Prof. Maimon Schwarzschild:  In a high school context, the overt targets of this are Asian American kids. In the college context, you can sort of say, “Well, where better-qualified kids are not being admitted in order to give preferences to less qualified kids, the better-qualified kids might be able to go someplace else. They might be able to –.” And it’s not fair. In our view, it’s not legal and it’s not constitutional. But at the high school level, you are really closing the door, in particular, to Asian kids, many of whom are themselves immigrants from China and from other East Asian and South Asian countries or from the children — first-generation immigrant families. But realistically, if on the merits, those kids are closed out of selective schools, or the selectivity of the schools is effectively abolished in order to keep them out, they’re not going to have another opportunity, and they will lose out from that in ways that can’t be completely compensated for. And the society, America, loses out from it, as well.


These are talented kids. They’ve earned their [inaudible 51:06], and they’re being shut out for these quite perverse motives of racial engineering. And the cost to them is irrevocable, irredeemable, in a great many places, and a cost to the country, as well. In a sense, doing this at the high school level is even more fraught and even less justifiable and even more damaging than doing it at the college level, which is damaging enough.


Prof. Gail L. Heriot:  Interesting. I mean, who would’ve thought, 40 years, ago that we would be where we are today with people who purport to be math educators saying we need to make math class less ‘mathy’. We shouldn’t concentrate so much on right answers. To me, that’s astonishing, and I think all of this stuff is related. At one point, where you relax standards to admit people who wouldn’t otherwise be admitted to a college or university, those people get in, and they don’t do well. They have doubts about the standards. They think, “Well, those standards really — they’re inappropriate.” And after 40 years of this50 years of thisit has a real effect on the culture. And I think that’s a serious problem.


And there’s an illusion that African American students don’t do well in college. In fact, there are many, many, many extremely talented African American students who, maybe, wouldn’t have gotten into Cal Tech without a preference, but had they gone to Northwestern, where I went to school, they’d have done really well. And we’ve created this illusion that African American students can’t do well in college. And that’s just false. There aren’t quite as many at the very, very top as we would like, but guess what, if you break down the country into a full range of races and ethnicities, you’ll find that among whites, some ethnicities don’t do nearly as well as others.


Maimon was speaking about Jewish students a little while ago. Jewish students are over-represented at Ivy League colleges because their academic credentials are, on average, higher than say, students of many other white ethnicities. Jewish students do better than say, Presbyterians — and I am a Presbyterian. And as a result, you’ll find a higher percentage of Jewish students in the Ivy League than you will Presbyterians. And you’ll find more Presbyterians than say, Jehovah’s Witnesses. That’s not a bad reflection on Jehovah’s Witnesses. Jehovah’s Witnesses, as a religion, I admire a lot because they try to evangelize groups that have had a tough time, like prisoners and alcoholics and groups that you don’t expect to really necessarily do that well on academics.


And the world is complicated and no two ethnicities performs exactly the same. Unitarians, they do great. Baptists, not so much. But that doesn’t mean there aren’t extremely talented Baptist students at Ivy League schools. It means that, in terms of the numbers, it’s not quite the same as it would be for Unitarians, for example. We live in a much more complicated world than the black and white world that race-preferential admissions imagines.


Within black students, Caribbean American students do better than traditional African American students do. Students from Africa do very well and the different groups — they’re different. They really are different. And to try to force the paradigm that everything’s black and white, and it’s just a question of somehow whites are privileged and African American studentsor black students, generallyare not privileged, it’s a lot more complicated than that.


Evelyn Hildebrand:  We are approaching towards the end of the hour, but I do want to give both of you the opportunity to comment on the essays that you, yourselves, wrote for this book so I — either way, Professor Schwarzschild or Professor Heriot, would you like to just give a quick recap or some words about each of the essays that you wrote?


Prof. Gail L. Heriot:  Well, I already talked about mismatch, so I think I can throw it to Maimon. His essay is the last one in the book and it’s a little different. Maimon?


Prof. Maimon Schwarzschild:  My piece is on class rather than race preferences and class affirmative action. And I think the two of us, actually, the editors, Gail and Iprobably disagree about this a little bit. Gail is somewhat more charitable, or less opposed, to class preferencessocial class preferencesthan I am. The points I try to make in the piece about social class affirmative action is that, maybe, in the present context in this country — a little less poisonous than racial preferences. But around the world, including communist countries, where you’ve had overt class preferences, it became a part of class warfare within a society, which is just as disastrous — a potential civil war — as racial conflict is. And so, I think the message of that chapter of mine is, beware of class preferences as well.


There’s another thing about class preferences. Race, at least, is fairly easy, at least in this society, at least so far, to define. That’s getting less and less true as there’s more and more intermarriage among racial groups. But by and large, who’s white, who’s black, who’s Hispanic, that’s a little harder. But at least who’s black and who’s white, there’s general agreement on.


Class definitions are much more elusive and therefore, if you’re going to give class preferences, somebody has to be the adjudicator of who falls in which class. And in the university context, that is going to be the faculty or, more realistically, the preference bureaucracy on campus. And given how hard it is to define, exactly, class, and it’s not just money, it provides — it opens up the door to gerrymandering, basically, for political purposes, for ideological purposes, for other ways of channeling the favoritism based on alleged social class. So my message at least — Gail takes a somewhat nicer and less nasty –.


Prof. Gail L. Heriot:  I disagree with you less than you think, but I disagree enough to where it’s probably worth talking about here. The whole purpose of public education is to make sure that education is available for everyone regardless of their financial circumstances. But I agree with everything you’ve said. I also agree that mismatch can be a problem with class affirmative action, as well. But I am willing to put a tiny thumb on the scale here in California. Given that race preferences are banned and given that the way the politics of it works they won’t give big preferences based on social class because it ends up benefitting Asian Americans more than it does other groups. And so, there’s a built-in break, at least right now, here in California. So, these things matter. But I agree with you in your essay where you say, “Look, the most important thing you can do for social class advancement is keep the cost of education low.”


Prof. Maimon Schwarzschild:  And it is true that a light thumb on the scale is what was promised for racial preferences 50 years ago. And that light thumb is turning into an awfully heavy brick with pretty bad consequences for all concerned.


Evelyn Hildebrand:  Well, regrettably, I have to cut this conversation short. I wish we had another hour but –.


Prof. Maimon Schwarzschild:  That may be just as well before the two editors start going at each other’s throats.  You know, you don’t want — quite want to do that.


Evelyn Hildebrand:  Perhaps this is the right time to ask if you have any closing comments or anything else you’d like to share with our audience before we conclude?


Prof. Gail L. Heriot:  Here’s my comment: here’s the book. It’s available on Amazon if you’d like to buy it. It’s also available on Barnes and Noble, I think.


Evelyn Hildebrand:  Excellent. All right.


Prof. Maimon Schwarzschild:  You had asked earlier in the program if we had thought about another title to the book. And I think both of us thought A Dubious Expediency is a great title, but the other proposal that I sort of favored was Buy This Book, Or Else.


Prof. Gail L. Heriot:  If you’d wanted to sell a lot of books, Maimon, I think you needed a different topic than this. Public conflict books are not like, million sellers but, whatever.


Evelyn Hildebrand:  Well, a good second title, and hopefully some of our audience members do go to Amazon to buy the book because based on this discussion, it sounds like a fascinating, fascinating book to read. So, please do check out Amazon, to our audience members. And thank you both for your time this afternoon.


On behalf of The Federalist Society, I want to thank you both for the benefit of your very valuable time and expertise. And I want to thank our audience for participating and sending in your questions. I apologize we were not able to get to all of them, but we did get to some of them. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.



Gail Heriot

Professor of Law

University of San Diego School of Law

Maimon Schwarzschild

Professor of Law

University of San Diego School of Law

Race & Sex

Federalist Society’s Civil Rights Practice Group

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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