The Supreme Court is hearing arguments in the case of Bollinger v. Bollinger, a case that challenges the use of racial preferences in college admissions. Will the court uphold a landmark precedent allowing colleges to use race as a factor in admissions decisions?
00:02:27.740I even think the minor factor question is almost kind of a euphemism.
00:02:33.840Like you don't really like it, but might it be a tipping point between two candidates?
00:02:42.000So among white people, opposition to affirmative action is even higher.
00:02:46.420But opposition to affirmative action is actually pretty high among even African-Americans.
00:02:51.700And it's certainly high among Asians as well, although less than whites, interestingly.
00:02:56.620So but overall, this just seems pretty radically unpopular, actually.
00:03:03.460And I think it might even be one of those issues that does create not just polarization,
00:03:12.580but that notion that there's something rotten in Denmark.
00:03:17.820You know, it's like the elite class are just not listening to the public.
00:03:23.340They might even be evil, maybe even Satan worshipers.
00:03:27.100I'm kind of exaggerating there, but you get my point.
00:03:29.660It's just this like extreme disconnect between the public and elite institutions.
00:03:36.580The other interesting thing about this case is that the Supreme Court really set up a overturning of its decision.
00:03:51.040So in 2003, there was a case against Michigan Law School that was a Title VI claim.
00:04:01.100So it's basically an identical claim to what is happening now.
00:04:06.080And it was called Grutter versus Bollinger.
00:04:08.840And the decision was written by Sandra Day O'Connor.
00:04:14.020And just these last words of the decision, the court takes the law school at its word that it would like nothing better than to find a race neutral admissions formula
00:04:27.440and will terminate its use of racial preferences as soon as practicable.
00:04:33.020The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved of today.
00:04:45.860This was by no means a definitive decision.
00:04:48.680And even that decision was also a bit wishy-washy.
00:04:54.360This is one of the, I guess, two major ones, Baki, which involved the University of California Law School,
00:05:01.660and then Grutter, which involved Michigan Law School.
00:05:04.920These were basically kind of pushing these schools against outright quotas and towards using race as a kind of one among many criteria for allowing a student to gain admission.
00:05:26.400There was a good book written about 15 or 20 years ago called The Affirmative Action Hoax by, I believe his name is Joseph Farrow, but it's still around.
00:05:40.380He actually made one pretty compelling argument that outright quotas are actually just better because the process is so mysterious.
00:05:52.700And it, in some ways, this, like the Supreme Court urging institutions to engage in this, you know, touchy-feely, wishy-washy version of affirmative action is actually kind of worse.
00:06:09.180And that you should just have an outright quota.
00:07:04.480And, you know, what is the meaning of the, say, 1,500 youngsters who matriculate to Harvard every year?
00:07:17.600So, in the oral arguments, Clarence Thomas said, you know, I've heard the word diversity, and I have no idea what you're talking about.
00:07:27.920Well, we kind of do know what the university is talking about.
00:07:32.860They are trying to achieve racial and, to a lesser degree, but to a significant degree, religious diversity.
00:07:43.780And they also, I mean, with North Carolina, it was interesting because they actually said some things remarkable, which was that, I believe it was a high number.
00:07:52.440It's like four in 10 students are actually from rural North Carolina, and they actually are trying to achieve rural urban diversity as well, and so on.
00:08:03.000So, I think they are trying to do that.
00:08:07.260But it's really, you know, where the rubber hits the road and what really gets people up in arms is this notion that there are two candidates that are more or less identical.
00:08:19.000And the African-American just gets the brass ring.
00:08:26.600There's also some things I remember this past summer.
00:08:29.560There was a case of this young girl who is African-American.
00:08:35.320And, you know, I'm sure she's smart and so on, but she was literally accepted to every big name school you can imagine.
00:08:45.640She got into Harvard, Princeton, Yale, Cornell, Stanford, Duke, wherever she applied, she was allowed in.
00:08:56.640And I think this also gets to a kind of bigger problem, which is that there are, you know, intelligent, attractive, well-rounded African-American students.
00:09:11.820And these big colleges are just kind of getting the first bite out of the apple.
00:09:18.120And you're bringing these students that aren't really more excellent than others, and they get into all of the schools while these other students are really struggling just to get into one because things have become so hyper-competitive.
00:09:34.580But you're basically just rewarding, say, a wealthy African-American family that already has, you know, a good culture and something.
00:09:47.540You're not really helping out African-Americans.
00:09:50.840There are plenty of Black people in poverty, et cetera, who aren't benefiting from the fact that this one girl went to Yale and will now, you know, one day serve on the board of GE and the Metropolitan Museum of Art or something.
00:10:10.040This is not really helping African-Americans at all.
00:10:14.240And I was kind of thinking about this a little bit.
00:10:21.200So what is the university and what is a compelling interest?
00:10:28.840Now, obviously, academia has its origins in the monasteries and the church.
00:10:36.580You can even see this in the architecture of many of these institutions, Harvard in particular.
00:10:46.820Thomas Jefferson's University of Virginia is a little bit remarkable in that it was a colonial architecture kind of looking towards Plato's Lyceum and the Greeks, the Romans, more than it was looking towards the medieval monastery.
00:11:07.900There is a very medieval chapel on campus just right outside the lawn.
00:11:16.060It's kind of the exception that proves the rule in this case.
00:11:21.380It looks very much out of place with the larger architecture.
00:11:30.060You know, I think to a large degree, they have become adult daycare centers or country clubs.
00:11:37.800And even for me, I'm not terribly old, but the degree to which these universities have become, you know, luxury gymnasiums is pretty remarkable.
00:11:56.620I mean, even in my case, your living environment dorm was fairly spartan.
00:12:04.020There wasn't a climbing wall in every student center.
00:12:11.360I remember the meals at the University of Virginia were cafeteria style, pretty basic.
00:12:21.640But, you know, it's obviously clear that a lot of the, you know, say top 100 schools and even on down from there, they have become club med.
00:12:35.920It's especially ridiculous when you kind of compare it to what was going on before.
00:12:40.360So I think there is this kind of weird compelling, you know, when you say, is it legal for us to do this in behalf of a compelling interest?
00:12:49.520You're begging the question of what that compelling interest really is and what you're trying to achieve.
00:12:56.880And again, before I talk about class, let me just go in a little digression on sports.
00:13:03.640The first Heisman Trophy winner actually attended the University of Chicago.
00:13:29.460The University of Chicago does not have any football program, anything like, you know, the University of Alabama or Notre Dame or something.
00:13:59.100They see football as a kind of add-on to the school or maybe even an experience that you might have.
00:14:06.240But, you know, when I was in high school and I played football, no one, oh, actually one or, I think one might have actually played college football at a somewhat high level.
00:14:20.300I remember my father who attended Lawrenceville in New Jersey, he said that they had a, and I don't know if they still have this tradition, but there's a house football program where everyone plays.
00:14:33.980And so the quality of the football on the field is extremely low.
00:14:39.500You have, you know, 90-pound weaklings playing right tackle or whatever.
00:14:47.120So in that case, they were trying to use sports and athletics as they should be as a way of building character and building community and bonding among the students.
00:15:01.020They never imagined, and the University of Chicago consciously did this, they never imagined that the school had a compelling interest to effectively have a professional football team on the field.
00:15:14.980I wouldn't be surprised if the University of Alabama could defeat an NFL team.
00:15:21.920Maybe that's reaching a bit, but it's not reaching too much.
00:15:24.760It is effectively a professional program.
00:16:31.640Is it, I mean, I think you could probably fairly argue that the University of California, the University of Texas, the University of North Carolina, which has evolved in this suit, that they have a kind of democratic or egalitarian motive, you could say.
00:16:49.800That, yes, it's secondary education, it's not for everyone, but it's a government program, and it is there to help out the people.
00:17:06.080They can go learn a practical trade, like agriculture, a business.
00:17:11.120They can, at the very least, kind of expand themselves in a way that they otherwise couldn't.
00:17:17.760This should be subsidized through the taxpayers, et cetera, in order to have this institution that, again, has democratic and egalitarian motives.
00:17:31.760There's also, and you could, in the oral arguments, you could hear them hint at another motive for the universities.
00:17:44.520And they said things like, well, the university, and I think they use this exact word, or exact term, it's the training ground for leadership in our society.
00:17:56.000So they didn't use the word elite, they used leadership.
00:17:58.200So basically, if you're going to become a Supreme Court justice, if you're going to become a corporate CEO, if you're going to become a journalist, if you're going to, you know, so on and so forth, you went to college, at the very least.
00:18:16.440And so they kind of got at this fact that the university system is about constructing elites.
00:18:23.620And they even got at this with one of the arguments that was made by the plaintiffs, and that was echoed by Gorsuch and Thomas, among others, which is that, you know, Harvard has this history of racial exclusion in admissions.
00:18:48.640And that isn't this new diversity regime, isn't this, despite its intentions, reproducing this racial antagonism that we saw throughout its history.
00:19:04.780And it is very clear that admissions at Harvard were discriminating against Jewish students.
00:19:16.080And there was actually a funny moment when Amy Covey Barrett said, and I don't want to speak any longer on Harvard's history of anti-Semitism.
00:19:25.460It was just kind of funny to hear out loud when we think about these places today, which, of course, the bastion of political correctness.
00:19:39.100They weren't discriminated against in the way that African-Americans were.
00:19:43.220They were discriminated against due to the fact that they would be overrepresented by a large margin if you simply took, say, basic test taking or your high school record into account.
00:19:59.460And that Harvard didn't quite want this.
00:20:02.460It didn't want a class that would have been, say, 20 percent Jewish.
00:20:06.840And thus, it created some admission standards that, very much like today, used euphemistic categories in order to prevent Jews from getting into Harvard, at least in disproportionate numbers.
00:20:23.440So it would actually give favor regionally.
00:20:26.380So if you were very smart from Montana, you had a little bit of a leg up against the very smart kid from Exeter Academy, which is a famous Harvard theater.
00:20:38.980They kind of wanted to broaden themselves.
00:20:41.100And you can kind of see the fact that that would be exclusionary to Jews if you're going out to the broader country.
00:20:49.640As just an anecdote, it's interesting that Richard Nixon, who had a Quaker background from Whittier, or he went to Whittier College.
00:20:59.080He actually was accepted at Harvard and couldn't afford the train travel across the country that that would entail.
00:21:29.700Previously, in the history of academics, these monasteries were, you know, purely religious, and they might have been, to some degree, a way of keeping these people outside of the community in the monastery, so they wouldn't do too much harm due to their kind of fanaticism and asceticism, etc.
00:21:53.740But in that case with Jews, and in the case today, it is about selecting a new elite, or maintaining an elite, and maybe evolving an elite.
00:22:10.680And that is what every Harvard class is about.
00:22:15.620So I hope affirmative action is overturned.
00:22:36.540So I have a dog in this fight as well.
00:22:39.880But I think just thinking of it purely in terms of unfairness is kind of missing the point, at the very least, when it involves Harvard, and I think to a very large degree, when it involves a good public school like the University of North Carolina.
00:23:00.500So there are 1,500 to 2,000 slots at Harvard College every year.
00:23:10.400Now, they actually put out a tweet today, and this didn't surprise me at all.
00:23:16.620This was, I have heard all of this, even when I was applying to colleges in the 90s.
00:23:54.920Now, we're kind of back to the old scores.
00:23:56.960If you get above a 700 on reading or mathematics, that means you're exceptionally bright.
00:24:02.380Now, obviously, people get higher than that, but that's a baseline of you can basically do anything you want.
00:24:10.200So they're using this as an argument of we actually want a different student body, and we want one that might be kind of well-rounded, however you want to describe that.
00:24:21.480But let's kind of take this even further.
00:24:24.420I mean, there are 1,500 to 2,000 slots at all of these big-time universities, Harvard, Yale, Cornell, Duke, Stanford, et cetera.
00:24:39.540Now, do you get the kind of arbitrary quality to all of these classes?
00:24:47.320They could almost allow people in at random and probably have an equally strong class as the one they arrive at by actually reading their 1,000-word essays.
00:25:01.460You know, if you're applying to Harvard, you already kind of think highly of yourself, so it probably means that there's something going on there.
00:25:13.140And you can kind of take this further.
00:25:15.520Like, let's say, like, let's say the University of North Carolina or even a kind of, you know, a bit lesser university like the University of Montana.
00:25:28.560Could you find 2,000 Harvard-worthy students from UNC or University of Montana?
00:25:39.660I bet you actually could, and I bet the classes would be pretty similar.
00:25:49.140Now, maybe it would be taking from the top 20% or something, but you get my point.
00:25:57.240There is just a kind of randomness and arbitrary quality to the selection of these classes.
00:26:07.540And so maybe it's not exactly the case at UNC or the University of Montana where they have a different compelling interest.
00:26:17.380But certainly at Harvard, their compelling interest is to construct an elite.
00:26:25.780Two things I think are important here.
00:26:28.940First off, this elite has, in a way, already been constructed.
00:26:37.400So if you look at, say, the Princeton, the 2022 Princeton class, a strong majority, and I think it's actually about 60%, are people of color.
00:26:50.840That is, they are Asian, African-American, Hispanic, or multiracial.
00:26:58.440So at Princeton, for these young people who, through great grades, some special talent, or just downright luck, they got into this class.
00:27:12.080And again, I would stress that luck plays a huge factor here.
00:27:17.040They are already, like we already have an elite group of people who are going to matriculate to other institutions after this,
00:27:28.280who are already kind of well beyond like 2050 America or something.
00:27:35.400In fact, whites are a large but clear minority in these classes.
00:27:45.560And you can see this in your local news.
00:27:50.820You can see this in your national news.
00:27:54.680You can see this less so on the boards of corporations, but you can certainly see this in hiring practices at top levels of boards, not boards, but leadership, et cetera.
00:28:09.800You obviously see it in Hollywood in terms of casting to a large degree.
00:28:16.020So the real compelling interest of these top schools is generating, maintaining, and evolving an elite group.
00:28:29.060And they are largely successful at that.
00:28:32.000And the other thing that I would say is that this kind of new post-white American elite class has already been constructed.