Explainer Episode 43 – An Agenda for Congress

In this episode, Hon. Gail Heriot, discusses her recent article for the New Criterion, An Agenda for Congress, in which she provides recommendations for Congress to adjust existing incentives that provide structural support for race-preferential admissions. Professor Heriot shares her projections for the outcome of Students for Fair Admissions against Harvard and the University of North Carolina, and what the implications of these cases will be for colleges and universities.


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

[Music and Narration]


Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.


Chayila Kleist:  Hello, and welcome to the Regulatory Transparency Project’s podcast. My name is Chayila Kleist, and I’m Assistant Director of the Regulatory Transparency Project here at the Federalist Society. Today, we’re delighted to host the Honorable Gail Heriot for discussion on a recent article in The New Criterion’s Affirmative Action and the Law Symposium, titled “An Agenda for Congress.” As always, please note that all expressions of opinion are those of the expert on today’s program as The Federalist Society takes no position on any particular legal or public policy issues. Professor Heriot, thank you so much for being with us today. We appreciate you taking the time.


Hon. Gail L. Heriot:  Well, I’m delighted to be here.


Chayila Kleist:  For our audience, Professor Gail Heriot is a professor of law at the University of San Diego. Among her areas of expertise are civil rights, employment law, product liability remedies, and torts. Her work has appeared in legal journals, like the Michigan Law Review, the Virginia Law Review, and the Harvard Journal on Legislation. She also frequently writes for popular newspapers and magazines, including the Wall Street Journal, the National Review, and the Los Angeles Times/San Diego Union-Tribune. She’s written fairly extensively on issues pertaining to racial preferences in college admissions. Professor Heriot’s also a current commissioner with the US Commission on Civil Rights and is a former civil rights counsel at the US Senate Committee on the Judiciary. 


Now, while there’s more to say, in the interest of time, I’ll cut my introduction there. But if you’d like to know more about Professor Heriot, please feel free to visit RegProject.org and read her impressive full bio. With that, however, we’ll turn to our discussion. Let’s start at the beginning. What prompted you to write this article, and what’s this agenda you’re laying out for Congress?


Hon. Gail L. Heriot:  Well, a lot of people have been very interested in the Supreme Court case dealing with race preferential admissions policies against Harvard University and against the University of North Carolina. On Halloween, they had their oral argument. And I, for one, have been interested in this issue for a long, long time. And I think there’s a good chance now that the Supreme Court with what appears to be a conservative majority on this issue, I think there’s a good chance that the Supreme Court will say that race preferential admissions are, in fact, illegal and/or unconstitutional. There are two issues here. There’s the Title VI issue — Title VI and the Civil Rights Act in 1964, which just simply says federal funding recipients can’t discriminate on the basis of race. And then, there’s, of course, the Fourteenth Amendment, which applies to the University of North Carolina but not to Harvard itself. 


And I think there’s a good chance that the Court is going to say that these universities are violating the law by engaging in race preferences. There may be some nuance there. And now, we will have to wait and see. I predicted back in 2003 that the Supreme Court was going to hold that race preferential admissions are illegal. But they didn’t do that, so I could turn out to be wrong here. But let’s assume they’re going to do that, for at least for the moment. 


What’s going to happen? And I don’t think I’m alone in believing that colleges and universities are not going to fall into line immediately. That’s just not going to happen. There are a lot of people on campuses today who believe that they have some sort of special mission to engage in admissions policies that favor one race over another. And I think that’s a bad idea, but I have to acknowledge those people exist. But I don’t think that we should be too pessimistic about what’s going to happen here. 


On college campuses, there are people who want to do the right thing. They want to obey the law. There are people who just want to get home in time for dinner and don’t want to get in trouble — and  that, over time, we’ll start to see colleges and universities fall into line on this. But what the article is about is about the structural supports for race preferential admissions. There are reasons that colleges and universities engage in race preferential admissions that have very little to do with their own ideological stand; they have to do with where the incentives are. And Congress, through decades of work, has helped create some of the incentives towards discrimination on the basis of race. And in particular, there are two of them that I discuss in the article. 


The first is the accreditation system. We have a federal government that subsidizes higher education in lots of different ways. And whenever you have federal subsidies of this sort, including, for example, student loans. There has to be some way in which the government decides this entity over here is a university, and they’re entitled to get this money. And this thing over here is not a university. It’s a dog named Fred. 


And so, what we have is an accreditation system where the ability to make that judgment is farmed out to various accrediting agencies. In the case of law schools, the ABA has an arm. It is not the ABA itself. It has some level of independence from the ABA, but it is still part of the ABA. And they are the accreditor for law schools. And like many of these accrediting agencies — whether you’re talking about accreditors for medical schools, business schools, engineering schools, liberal arts schools, nursing schools — they often demand what they refer to as racial diversity, but they do so knowing very well that this requires race preferential admissions policies, that it requires giving actually preferences to African Americans, American Indians, to a lesser extent, Hispanics. And you can’t preference somebody in without preferencing somebody out, so Asian Americans, in particular, have to achieve much higher academic standards to get into a school like Harvard or UNC or, for that matter, most of the very selective schools in the country. 


And so, these accrediting agencies, they act as kind of a cartel enforcer. If there’s a school out there that doesn’t want to engage in race preferential admissions, that wants to do it another way, they get hammered. And in the article, what I suggest is that Congress pass legislation that would prohibit accreditors from acting as that cartel enforcer, that we allow schools to make their own judgments about admissions policies with regard to the race of students, acting within the law, whatever that law turns out to be once the Supreme Court has issued its decision. And if you can see where I’m going, it really doesn’t matter what the Supreme Court decides, assuming that that decision comes out in June. What matters is we take accreditors out of the issue, that whatever the law is as declared by the Supreme Court, we allow individual schools to do that. 


There are a couple of egregious examples out there where schools have been pressured into race preferential admissions in a way that would just make your hair fall out. And the best example is the George Mason University School of Law, as it was then called. It’s now called the Scalia School of Law. It’s still part of George Mason University. But their faculty is more conservative on these issues than most. They weren’t willing to rule out race preferential admissions to achieve a level of diversity, but they were strongly of the opinion that too much of a preference ends up harming students that get that preference. And that’s not just based on race.


But, no matter what the preference, whether you’re getting a preference based on your athletic ability, based on your race, based on who your rich daddy is, whatever it is, it’s not a good thing to go to a school where almost all the other students have academic credentials that are higher than yours. You don’t learn as much. The odds of passing the bar are not as high. You’d been better off going to a school that’s maybe a little lower in the pecking order. At any rate, the George Mason faculty was not a strong believer in racial preferences, but the ABA’s Committee hammered them on this. Told them that they would not be — not have their accreditation renewed if they did not get more minority students. 


And the only way to do that was to lower their academic standards, bring in students who were not as prepared to compete against the rest of their students. But they had to do it because if you don’t get accredited, you’re not a law school. You cannot — your students cannot sit for the bar. So they had to do it. And so, they did it a little bit. And the ABA said, “Not good enough. Not good enough.” They did it a little more. “Not good enough. Not good enough.” Until, finally, they had utterly capitulated to the ABA, and they got their reaccreditation. 


And what happened to the students that got these heavy preferences? Well, what do you think? They weren’t prepared to compete with the rest of the students there at George Mason, and they ended up with GPAs that were unacceptably low. Students, basically, got to the point where they were having failing GPAs, all because the ABA was forcing this on George Mason. So my idea for legislation is let’s get these accreditors out of this business. Let’s tell them that they can look at other aspects of the school, but the question of what the racial composition of the students will be or the racial composition of the faculty, for that matter, that should be up to the school, acting within the law as found by the United States Supreme Court. So that’s one suggestion. 


The other suggestion for legislation is to deal with the unconstitutional Minority-Serving Institutions Programs. A lot of people don’t know about this, that the federal government shovels millions and millions of dollars to colleges and universities that can achieve the status of a Minority-Serving Institution. And the largest program is the Hispanic-Serving Institutions Program. And I want to, right up front here, distinguish this from the HBCU Program, the Historically Black Colleges and Universities Program, because I don’t think that one is unconstitutional. I think there’s a different constitutional footing for that. But the Minority-Serving Institutions Program basically says, for the HSI — Hispanic-Serving Institutions Program, first, because that’s the one that has all the funding — if a college or university is 25 percent Hispanic, then they are eligible for all this money that they wouldn’t be eligible for otherwise. 


So any school — particularly in the Southwest or in Florida, where they have a pretty high number of Hispanic students but not 25 percent — they are falling all over themselves to be able to achieve this level of 25 percent because then they will be eligible for these federal subsidies. And okay, how do you justify that under strict scrutiny? This is a pretty clear case of Congress legislating on the basis of race. There is an advantage to an institution, based on the race of their students, and I don’t see how that is going to survive strict scrutiny. When you think about the kinds of reasons that the courts have in the past at least tipped their hat to, they don’t apply here. 


This is not a situation where you can say that it’s based on diversity because a college or university could be 100 percent Hispanic, and they would still qualify for the money. It’s not a situation where you can say that there’s been discrimination by this institution in the past because the institutions can be founded last Tuesday, and they’re still eligible. There doesn’t have to be any history of discrimination. It’s not a situation where you can say that they need extra money because they’ve got English learners. That’s a different program. There’s no requirement that students who are classified as Hispanic be anything other than native English speakers, so that excuse is not there. 


And this, basically, is begging schools to discriminate on the basis of race. There’s so much money on the table that schools that are anywhere close to 25 percent would be foolish not to try. My own institution, the University of San Diego, is trying to qualify for this status, and they’re making a lot of decisions that are based on the notion that they want to be able to qualify for this very large pot of federal funding. And so, that’s something that Congress can terminate. And they’re not the only institution that can stop this. One can hope the courts will also do this, but it’s hard to find an institution with standing that is willing to engage in litigation over this. 


As you might know, public interest litigation is not as easy as it looks. You’ve got to find an individual or an entity that has the standing to say, hey, we’re being harmed by this program; we’re being especially harmed, and we want the courts to look at this closely and tell us whether it’s constitutional. I’m pretty sure that it’s unconstitutional. And Congress has a responsibility to adhere to the Constitution as well. And they should simply terminate the program. 


So those are the two ideas that I have. Basically, I’m looking at structural supports for race preferential admissions because it’s going to take more than a Supreme Court decision to get colleges and universities to move away from this and towards programs, admissions programs that meet with the law. So that’s the idea.


Chayila Kleist:  Got it. Well, thank you. And thank you for breaking it out. It certainly is a clear communication of the theses  you put forward and  the two points that you’re touching. 


I have a couple questions, just going into some of the details. As part of your article, you lay out part of the history of how accreditors came to be, playing such a role in the distribution of federal funding, and you note this — part of this impetus was that education was generally conceived at the time, and here I quote the article, “as a state, local, and private concern, decentralization seen as a virtue.” Would you say the same is still true today? And does the popular conception of the role the federal government should play in education affect this conversation at all/what Congress can or maybe should do? 


Hon. Gail L. Heriot:  That is an excellent question because I know a lot of people who are wary of the accreditor situation. It sounds kind of weird to people to say that federal funding is controlled not by the federal government itself but by all these different accrediting agencies that the federal government has no control over. And back when they set this system up, they thought they were doing something good by not having the federal government be so closely involved in who gets the money and who doesn’t. 


They were thinking, as the federal government, we’re not used to dealing with education issues. The Constitution does not delegate education to Congress. And if we’re going to start programs where we’re subsidizing higher education, we have to acknowledge the fact that we don’t know that much about it, and we don’t want to grow the federal government so that it becomes this huge education bureaucracy. Perish the thought that we should do that. By the way, it’s already happened. 


But — so they thought the idea of having these accrediting agencies be the one that designates which schools are — should be receiving federal funding and which ones are frauds and which ones are just crazy things. And there were accrediting agencies across the country that, at the time, were not really powerful organizations. They were just a way that a school could signal to its potential customers that they’re a good school. And so, it was considered a nice thing if you could say, if you were a university, that you’re accredited by one of these organizations that goes around and accredits educational institutions. But what’s happened is that they have become powerful, really powerful. 


Back before World War II, before the federal government got involved in all this, these accrediting agencies were just little things. And they were just kind of academics getting together and certifying that the other schools are worthy of being considered as a place to send your children. Nobody sent them on to college. But because the federal government subsidies are so massive, they have become really powerful. And this idea of we don’t want the federal government to be the one to decide which schools should exist and which ones should not because that’s really what we’re talking about. Right? If you don’t get federal funding, if you can’t get student loans, you’re not going to be successful as a school. 


There’s room for one or two such universities. There — Hillsdale College does not take any sort of federal subsidy, and as a result, they don’t have to deal with the bureaucracy. And that’s a wonderful thing. But they have to get a lot in the way of gifts from private individuals in order to make that work. You can only go so far with that. 


So we’ve reached this point where these accreditors are massively powerful, and yet, there’s no sort of oversight. They can go off on whatever political tangent they want to. And let me tell you. They do go off on these political tangents. They are highly politicized, and yet, there’s no way to rein them in. 


So we’re in a very difficult situation. The world I would like to see is a world where there isn’t so much in the way of federal subsidies and — so that we don’t have to worry about this. But that ship may have sailed along. So that’s the position we’re in right now, out-of-control accreditors. And they need to be reined in. 


Chayila Kleist:  Thank you. Transition to a question on your second recommendation on the categorization of Minority-Serving Institutions, particularly Hispanic-Serving Institutions, just a little more into what those are and how they operate. What are the benefits that — I realize that you’re recommending against a HSI classification or the defunding of that program — but what benefits might that have for institutions and for the students that come? You mentioned how students may be affected by the — pushing schools towards racial preferences in their admissions. But if an institution is getting classified as an HSI, how might that affect students?


Hon. Gail L. Heriot:  There are these little pots of money everywhere that are reserved for HSIs. For example, I was speaking to a scientist recently who sits on a board that supervises the National Science Foundation, and for many of the grants the National Science Foundation gives, they have to be given to an HSI or to a — sometimes, to a group of schools being led by an HSI. So the individual professor of physics, for example, who is doing work that requires funding, if that individual professor is working at — for an HSI, it’s easier for him to get that funding. And there’s a lot of money that is being given out in ways that HSIs are preferred. Now, I probably can’t tell you every single program because the programs are numerous, but it adds up to hundreds of millions of dollars. And the schools that are attempting to achieve HSI status, they’re not shy about saying why. 


There was a local news, television news, interview that I saw recently with an official from a Florida university. And he said, “We need to do this because there’s all sorts of funding out there.” So this is not something they haven’t noticed. As I said, they’re falling all over themselves to get this status. Schools have to raise money, and when the lure is, hey, you’re an HSI, you’re going to be eligible for a lot more funding than you otherwise would. Schools are going to sit up and take notice.


Chayila Kleist:  Got it. Moving slightly, you mentioned the American Bar Association’s connection to accreditation, and particularly, let’s branch this connection to how schools choose to shape their admissions. You talked about this some. But can you sort of distill out what the impact of the ABA’s choices has on how law schools have chosen to adopt racial preferences, or not, in their missions?


Hon. Gail L. Heriot:  The ABA requires that schools be racially diverse. And one interesting side of this, I’m in California here, and California, back in 1996, adopted a proposition that amended the state constitution. It was called Proposition 209. And as you indicated, I’ve been with this issue a long time. I actually co-chaired that campaign. That was a big year in my life, where we worked very hard to get the state constitution amended. 


And it currently reads the state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, color, ethnicity, or sex in the operation of public education, public employment, and public contracting. I think I got it pretty close to what the language is there, but you can see where it’s going. It was designed to prevent colleges and universities, including the University of California and the Cal State system and our community colleges system as well — designed to prevent them from engaging in race preferential admissions. And what happened was immediately the ABA stepped in and said — they amended their guidelines to say regardless of what state law requires, regardless, you absolutely must be racially diverse. So what they’re saying is by hook or by crook, you’ve got to do this. And their public position was we’re not saying they have to disobey the law; we’re just saying that somehow they’ve got to be racially diverse. 


But in their friend-of-the-court briefs, in their amicus briefs to the Supreme Court, they admitted in their arguments that colleges and universities will not be racially diverse unless they can engage in race preferential admissions. So they’re talking out of two sides of their mouth there. On the one hand, they’re saying we’re going to require you to do this regardless of what state law says, and they’re saying we’re not saying you have to break the law, just you have to do this. And then, out of the other side of their mouth, they’re saying there’s no way you can do this unless you’re engaging in race preferential admissions. And so, they’ve been very tough on schools, not just on student admissions but also faculty hiring. 


Right now, again, my own institution, the University of San Diego, we are under pressure to hire by race from the ABA’s accrediting arm. And many of our faculty members are saying regardless of what the faculty wants to do, we must comply with what the ABA tells us we must do and that is hire more faculty members based on race. So these institutions, they’re powerful. 


And it’s not just the ABA. I did a FOIA request to medical schools a few years ago, just to see what was happening with their accrediting. And their accrediting arm, it’s — I can’t remember exactly what it’s called. The acronym is LCME, the Liaison Committee for Medical Education, I think, is what it’s called. They were exerting the same kind of pressure on medical schools. We won’t accredit you unless you have students who are as racially diverse as we think you should be. So this has long since been taken out of the hands of actual schools and the judgment of their faculty and is rather the judgment of the accrediting arms, which tends, these days, to attract politically motivated people. 


Chayila Kleist:  Well, thank you. Appreciate the great clarity and some of the details. Last question and we can wrap after this. Recognizing your article’s primarily addressing possible Congressional action/recommending possible Congressional action, you do know — and here, again, I’ll quote the article — that “there are other ways…these proposals” might be given “legal effect.” What might some of those be?


Hon. Gail L. Heriot:  Well, that’s interesting. There’s been a lot of executive action during both the Obama administration and the Biden administration that I thought went beyond what executive power should allow them to do. But this issue, it’s possible — and I think we’ll have to wait for the Supreme Court decision to have a really firm idea on this — but my read of the Supreme Court’s decision in Grutter v. Bollinger, which was the 2003 decision that allowed colleges and universities more leeway than I think the law actually does, but I’m not the Supreme Court so — but my read of it was that it was talking about the academic freedom of the individual institutions and that, even based on that decision, I would have said these accrediting agencies don’t have jurisdiction over this issue. This has to be something that goes to the individual institution, again, acting within the law as that is found to be by the Supreme Court. 


And so, in that respect, the Department of Education could issue a guidance that simply tells colleges and universities that this is not an accrediting issue, and the Department of Education does not have to allow accreditors to be recognized if they insist on guiding — guiding is actually kind of a nice word for it — on forcing colleges and universities to get in line on this issue. So I think that even if the Supreme Court throws up its hands and says we’re not going to decide the Harvard case; we’re not going to decide the UNC case. Even going back to the Grutter case, I think it’s really not supposed to be what the accreditors seem to think it is. They’re not supposed to be the ones that enforce this. They’re supposed to be the ones that stand back and let schools exercise their own academic judgment. With regard to the HSIs, this is clearly an issue that could be decided by courts and probably should be. If a case can be mounted with appropriate standing and ripeness of the claim, I think I’m pretty confident that a court looking at this would say, no, you just can’t justify the Hispanic-Serving Institutions Program. And it does, in fact, have a tendency to create incentives to engage in race discrimination.


Chayila Kleist:  Got it. Well, we’ll wrap it there. Professor Heriot, thank you so much for being with us today. Appreciate your expertise and insight. For our listeners, thank you for tuning in, and if you’d like to find more content like this, feel free to check out RegProject.org. Again, thank you so much. You have a great day.





Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.




This has been a FedSoc audio production.

Gail Heriot

Professor of Law

University of San Diego School of Law

Race & Sex

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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