This podcast is brought to you by the Albany public library main branch and the generosity of listeners like you. God daddy these people talk as much as you do! Razib Khan’s Unsupervised Learning
Hey everybody, this is Razib. And welcome to the Unsupervised Learning podcast and I am here with Renu Mukherjee, who is a policy and policy analyst at the Manhattan Institute, and a PhD candidate in American politics at Boston College. And her dissertation is focusing on affirmative action, which is, you know, its word, I think, almost everybody in the audience, who is American knows, and I think abroad, sometimes called positive discrimination. There's other words for it. But in any case, I just want to start from the beginning. Tell us what affirmative action is for someone who's actually doing their dissertation on this topic.
Sure, so thanks for having me Razib. Affirmative action in it. How it's used today is a system of preferential treatment on the basis of race for certain racial groups in the United States, that often leads to adverse outcomes for racial groups that don't, in fact, receive that preferential treatment. So how it works today is that groups, particularly black and Hispanic Americans, that are perceived as quote, underrepresented in higher education, and in some sectors of employment receive this preferential treatment, while different Asian origin groups and white Americans don't receive that same sort of admissions, or employment hiring tip.
Well, I mean, so you named Asian groups, Asian origin groups, then obviously, white Americans. But I mean, can I mean, so? You know, the I know, the federal government does minority contracts like is that? And asians are included? That is not not affirmative action.
That is, in fact, affirmative action. What's interesting is that affirmative action when it was the term was first used by President John F. Kennedy, back in the early 1960s. And when he implemented affirmative action, and it was later exacerbated by President Lyndon Baines Johnson, they understood affirmative action in the context of government hiring and federal contractors. So that's actually how affirmative action was originally construed. And that its application in higher education came about later.
Yeah, and I do want to say, I'm gonna be, we're gonna be focusing on America, because it's a big topic. Just to be clear, these sorts of policies are actually pretty widespread across the world, there's gonna be a lot of listeners in various countries who have experienced this sort of thing. India has, for example, massive policies about this. But there's also policies in relation to higher education in Malaysia. Anyone who really wants to read about this from a conservative perspective, you can read a lot of Thomas Sowell work from the 1990s. On his race culture, I think it's a trilogy. There's affirmative action all over the place in, you know, many, many contexts. I mean, in Sri Lanka, they have affirmative action for Sinhalese, as opposed to Tamils. So, you know, this is a general policy pattern. And okay, I'll give you I'll give you guys the weirdest one. In Song Dynasty, China, they actually had to have a regional cap on candidates for the bureaucracy from Fuijan, because otherwise, they would overload the bureaucracy, and they weren't going to be enough north Chinese, you know, in the bureaucracy, so you know, they really cared about representation 1000 years ago, but the emperor was from northern China. So I think you he had some opinions about that. But so, you know, when talking about affirmative action in the American context, a lot of it goes back to the Bakke case. And I feel like we should just like hit that case. Because you know, it's 1978. And it's where a lot of the explicit discussion starts. And like, it is actually still, the reply to the Bakke case is actually what's going on now, in a lot of ways. So can you talk about that?
Sure. So Bakke was a 1978 case involving the University of California at Davis Medical School. And the plaintiff in that case was a white male named Alan Bakke. At the time, UC Davis Medical School had two separate admissions tracks. One was for racial minorities that were perceived as underrepresented. This included blacks, Hispanics, Native Americans, and interestingly, Asian Americans were in that underrepresented group, but it sort of acknowledged within the facts of the case that they were in fact over represented relative to their share of the California population at the time, and then the other admissions track We're for white applicants. So Bakke basically applied to UC Davis Medical School twice and was rejected both times despite having higher test scores and GPAs than some of the underrepresented minority applicants that were admitted. Their case was fracture, the decision of the case was fractured, meaning there's multiple opinions. The one that gets cited the most in affirmative action debates today is not a majority opinion or a dissent, but a plurality opinion, written by Justice Powell, in which he established the diversity rationale. In doing so he went through multiple different explanations that the UC Davis Medical School put forth on why they should be allowed to discriminate on the basis of race. One of those was remedying past societal discrimination against black Americans, for example, another one was wanting to increase the number of minority physicians in impoverished communities. And the one that he said was, in fact, constitutional was guaranteeing the benefits of a quote “diverse” student body in higher education. And so the suit - so five justices in that case, said the UC Davis Medical School Program was unconstitutional, because since there were two separate admissions tracks, it constituted a racial quota. It was easier to get in if you were a racial minority, as opposed to if you were a white American, then then there were four justices that said we should allow discrimination of that sort because of the remedying societal discrimination argument. Bakke had his own opinion, no other justice signed on to it. And this opinion was the diversity rationale that was at the time near judicial dicta because it didn't have a majority behind it. But it was adopted by five justices in 2003’s Grutter versus Bollinger.
Yeah, the 2003 case I remember because I was reading the New York Times in 2003. I guess that's the way it was. So yeah, people were talking about it. I think it was, it was a Sandra Day O'Connor. Who wrote the did she write the write the opinion?
Yeah, she wrote the opinion
See, I remember. But so, you know, the diversity. And so just to make it clear for the listeners and viewers, affirmative action in the United States is it's not quotas, quotas are illegal. They're unconstitutional, correct?
Yes, they are.
And because that's what you had. In UC Davis, you had explicit quotas, they were just straight up about it. I think there's a few other places that were doing that, too. And so quotas are you have a certain percentage and your target that these are well known in the United States from the Jewish quotas of the first half of the 20th century, usually capped at around 10%. Otherwise, you know, they were going up to like, 20 25%, Jewish, right? So that's illegal, but affirmative action, um, you know, race can be one of the many qualities or whatever, I don't know what you want to say characteristics, right. That's the term you want to use, that you use to evaluate someone. And so from what I know, it's supposed to be kind of a tiebreaker as well.
Yes, it's supposed to. And what's interesting is since in recent years, the notes of justice Powell’s law clerk have been released. And you can see in the scribbles of those notes and the back and forth between the clerk and Justice Powell that they acknowledged his diversity diversity rationale was a compromise between the four justices that said, considering race in any way in admissions decisions was unconstitutional and violation of the Equal Protection Clause, and the four justices that in fact, wanted over quota racial discrimination to remedy societal discrimination. So even in his correspondence with his law clerk when they were writing this opinion, they made very clear that the diversity rationale of using race is just one factor among many and evaluating candidates was sort of a happy medium.
Yeah, so you mentioned the Equal Protection Clause. And, you know, that has to do with a constitutional amendment in the 19th century. And, you know, again, I have to say, I think for non Americans, this focus on like, the, you know, history of the genealogy of the laws and the cases and the decisions, probably is like, Okay, what's going on here, but this is how we do things the United States. Can you talk really quickly about this, you know, in the 19th century, equal protection, you know, how it's kind of a shadow over all these other things?
Sure, so the equal protection clause of the 14th Amendment essentially guarantees equal protection and non discrimination on the basis of race, class, national origin, etc. For all groups in the United States. These are called in legal terms protected characteristics. The reason it's interesting in the context of affirmative action is that affirmative action does in fact confer the benefits on the basis of race, ethnicity, national origin, seemingly in violation of this constitutional provision. And that's why it's confusing. And most of the cases you'll see from Bakke, through Bakke, Grutter, Fisher one and two, and where we are today with the students for fair admissions cases, is that what the justices have done over time in the lower courts as well is try to sort of tease and sort of play around with the diversity rationale, so as to not violate this constitutional provision. And also Title VI of the Civil Rights Act, which I'll add that the Equal Protection Clause prohibits racial discrimination in the context of higher education from public universities. Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, ethnicity, national origin from private universities that are receiving federal funding. So yeah, those are two different situations.
So so legally, at least like currently now, affirmative action is not discrimination. Is that what you're saying?
Yes, in the eyes of current - who knows what the justices will do? But currently based on past legal decisions, affirmative action, justified through the diversity rationale, the courts have said does not violate the equal protection clause of the 14th amendment. And it also does not violate Title VI of the Civil Rights Act.
Yeah. So I, you know, you mentioned the Harvard case, and Students for Fair Admission, we are recording in March of 2023. Some of you are going to be listening and watching after the case is determined. And, you know, the expectation is that affirmative action will be no more, you know, and so, just just for you guys out there. We will talk later on about what the consequences are. And we're just gonna assume it's a fait accompli at this point, because, you know, something could happen, but, you know, I'll just, I'll just remove this podcast. Like, obviously, the simulation broke, we're in an alternate universe and Alito got woke. I don't know. I mean, I'm just saying like, if that does happen, there's something you know, Biden decided to pack the court with 20 justices, I don't know. I mean, there are things that could happen. But right now, the probability is it's gonna get overturned. And so I'm trying to give you guys a sense of the historical context of where we are right now. And like how we got here. Because you know, a lot of people, honestly, a lot of people, I think, do think quotas are legal. And that's how affirmative action works. And there was this whole diversity rationale, which I kind of find a little bit tortured. I think a lot of people find a little bit tortured and confused, because what is diversity? You know, you can use Shannon's information index and stuff like that, right? There's all sorts of ways you can measure diversity and statistics, but it seems like you know, from a legal perspective, it's just some sort of like, weird, verbal, assertion, and then you know it when you see it. Can you talk about the Students for Fair Admission case at Harvard? I mean, this is something that I think most of the listeners will have, like tangentially heard about here or heard about. But let's, let's dig into the details of what's going on here.
Sure, so students for fair admissions filed the lawsuit against Harvard all the way back in November of 2014. The claim the primary claim that they've made in that lawsuit, and what's received the most widespread media attention is that Harvard's use of the diversity rationale to justify affirmative action, in effect penalizes Asian American applicants in a way that it does not white Hispanic, does not penalize whites, Hispanics, or black applicants. But there are other claims that students for fair admissions have made in that case, as well. One has to do with the current with this legal principle called strict scrutiny. It's a standard of review. So in the US, when the courts evaluate different cases, they use either rational basis, which is the lowest level of judicial review, meaning that it's quite easy for a law to pass that and to be deemed constitutional, then you have intermediate scrutiny. Most cases that are evaluated under intermediate scrutiny are cases of gender discrimination. For example, gender isn't a protected protected class, but it kind of comes close. And then you have strict scrutiny, which is reserved for infringements largely on due to race, ethnicity, national origin, etc. It's extremely hard for a law that discriminates on the basis of race to pass strict scrutiny. To do so you need a compelling governmental interest. And you need to ensure that the means are narrowly tailored, meaning they're specific to achieving that interest. This other major claim students for fair admissions makes is that Harvard's racial preference policy does not satisfy the standard of review. So you have discrimination against Asians, you have strict scrutiny fails. And then another large claim that they've made is that Harvard has been racially balancing, its entering classes for quite some time. And they through their expert witness, the Duke economist, Peter Arcidiacono has put forth quite compelling evidence showing that the percentage of Asians, blacks, Hispanics, and whites in each anchoring class over the last 20 years or so, has remained quite stable. And in fact, when you look at those numbers, the years in which Asian Americans have alleged discrimination against Harvard, you see a surge in the percentage of Asians that are admitted. So overall, with Students for Fair Admissions, they're arguing there's discrimination against Asians, Harvard is balancing racially it's entering classes in violation, again, of the Equal Protection Clause, and then also, their use of affirmative action fails strict scrutiny.
Alright, so what does Harvard say aside from the fact that Asian people do not have good personalities?
Yeah, so they think through their personal rating that even though alumni college counselors, all out of the four racial groups that they consider give Asians the highest ratings that according to their admissions officers, they're just unlikable, I guess. But in addition to that, Harvard, -
Have you met Koreans? Very smart. But that's, that's all I'm saying. I’m just joking out there don't cancel me.
I mean, I'm Indian and some Indians, ehh… I’m kidding too. Um, so Harvard, of course, says, their defense against the racial balancing is that we're not in fact, racially balancing because like, some years, you know, Asian American enrollment and admittance will fluctuate between like 17 and 20%. And that to them, those that difference of three percentage points is large enough to prove that they're not racially balancing, but their primary defense has to do with the strict scrutiny analysis. And this is important, because if the court the Supreme Court in the past from Baki, onward had actually stuck to strict scrutiny, affirmative action would be no more in the United States. And if you ask if you look at the dissents from people like Alito, Clarence Thomas, they have said time and time again in Grutter and Fisher one and two, that the court has misapplied strict scrutiny. So Harvard basically says, One, we have a compelling and crest, which is the first prong of strict scrutiny in diversity. And we have shown which they actually haven't. And I can talk about that if you in greater depth, if you want. They don't actually that they do have an interest in diversity, and they've proven they have this interest. And to end to that the only way in which they can achieve diversity is by discriminating on the basis of race. So that's their defense. If you actually look at the facts, it's it's not a very strong defense.
Well, I mean, I guess the issue here is, I mean, all right. So let's assume so there's a law here, I basically what you're saying is, you know, Justice are gonna find that this is unconstitutional, because it doesn't, you know, pass strict scrutiny, they've kind of been letting it slide for a couple of generations for various reasons. You know, in America, we are governed by the Constitution and the laws. And even if they're not popular, you know, sometimes stuff happens. So in the 1960s, the Warren Court changed, you know, rules, really to censorships obscenity, and banned prayer in schools. So whatever they just said that this is not constitutional. And even though people were opposed to it, they kind of went along with it, because the Constitution is what it is. From Harvard's perspective, and a lot of the American elites perspective, Harvard educates the American ruling class. Like, I mean, it's just gonna be like, ludicrous for the American ruling class to be 15% Korean, right? I mean, that's, I mean, I'm just saying, like, you know, what are the percentages here? I mean, let's just set aside the fact that, you know, maybe the percentage of African Americans and, you know, Hispanic Americans, I'm not gonna say Latinx, because when I say that, I get some really angry messages from people with Spanish surnames, so I'm just gonna say Hispanic Americans. But in any case, okay, let's just set that aside. Let's do the thought experiment. What if Harvard is for The percentage What if Harvard? Has Caltech civil demographics? Is this going to be the American ruling class? I mean, next thing, you know, we can have like multiple Indian American candidates of the Republican - Wait, nevermind. But you understand the question that I'm asking in terms of like Harvard is not Caltech. It's not just producing professors, it's producing politicians is producing the thought leaders and the public intellectuals. And people are gonna have a freak out. If it doesn't look like America, right? I mean, this is, this is like a serious concern. And if you follow the law in the way that you are presenting it right now, and I think that's fine, because this is what the courts going to do. Let's be entirely candid. You know, okay, like, how are they going to deal with this? How are they gonna get around it? Because I mean, that's fundamentally what I'm getting at here. How's it gonna get around it? What have you heard? Because we know what's going to happen legally. But what people do, you know, Chief Justice, the Chief Justice can, you know, render the Chief Justice’s decisions, but let him enforce it? Right. You know, that's, I mean, we'll see.
Exactly. So to two points in your question. The first what is this mean for sort of the elite of American society, people have been thinking about this, actually, my colleague, Eric Kaufman had a piece in tablet magazine over the weekend, where he tracked the decline in Jewish Americans in elite institutions and sort of the rise of Asian Americans and kind of his central argument was that people often equate Jewish Americans and Asian Americans as one in the same in the context of higher education because of the discriminatory quotas. But in fact, there are vast differences between these two groups of people in the United States, and you're seeing the decline of one in sort of the elite circles like Harvard and these elite institutions, and then you're seeing the rise of others. So that that kind of is a thought, you know, about like, what is this going to mean? Is it like you said, is America going to look like Caltech? I mean, Peter Arcidiacono has found that if you remove the Asian American penalty at Harvard, with respect to being discriminated against solely because you're Asian, the admin rate would increase by 19%. That's significant. So that question of what does this mean for
You mean it’ll double? I sounds like it would almost double. Is a two fold increase? Is that way you’re saying?
Okay, so it would go from like, 20ish to 40. ish, something like that.
Yeah. In terms of like, percentage points. Yeah. And so if you remove the Asian penalty, in his paper, where he sort of compares Asian applicants relative to white applicants, that that will that is what would happen. The second point about what what's going to happen, like how our schools just get like Harvard is going to accept this when their mantra is, we want our class to resemble real America, they're not going to take it sitting down. Two ways that have been one more so in the news lately, one that I think is going to come in the news. The first is the elimination of standardized tests, which have been an argument from people who are pro affirmative action, in many cases find themselves on the political left is that these tests discriminate against black and Hispanic applicants, or individuals who are taking the test. When you look at the outcomes of how the racial groups perform Asian Americans perform the best, then you have whites, followed by Hispanics and blacks. So a few days ago, Columbia officially announced that they were eliminating the SATs and ACT standardized test requirements. It's sort of there's murmurs Harvard did due to COVID that they're gonna stick with that Harvard is no longer requiring the LSAT or the MCAT, Stanford Princeton have followed suit. So one way in which schools are going to get around a potential strike down of affirmative action is eliminating SATs and ACT's because then you can kind of focus on the softer, more holistic qualities of essays and whatnot. Another aspect that I think we're going to see more of is in supplemental essays, potential victimhood essays now, they're not going to openly say, Have you ever in your life and discriminate on the basis of race, but they could phrase a question like, Have you ever encountered adversity? And then if a student writes an essay, explaining that because of his or her race, she or he has endured adversity, then that's a potential way to screen applicants.
Yeah, so here's a question. I was asking a friend of mine. So, you know, these admissions committees at some of these universities, they're very, very, they're aligned, in their vision, in their values in their politics. Can we can they just figure out a way to use code words and I mean, you know, basically, some of them are very Stupid and they will actually email each other. I mean, I'm not saying in a pejorative way, I think they're literally stupid. Because you have to be stupid to actually explicitly email on, you know, foible servers like this has happened. Texas A&M did it, like they said, you know, low, I mean, honestly, I'm just gonna say low IQ administrators, I have to be, like, low IQ, because they literally were like, We're gonna hire, you know, people of this race, this sex. And this, what we're gonna do, you can't just do that you have to wink and nod. And you know, what you normally do is you have a search, and then you just shut it down when you don't find the right people get, let's be honest, is what they do. But that's not you can't get them on that. If you just send an email, you can so they're not going to do that. Okay. But if everyone just agrees, you know, we're looking for, you know, men of good character, you know what that means? You know? I mean, you can't read their heart, can you? I mean, I'm just wondering, they can just do that?
Yeah, they definitely can. And there's, I mean, with respect to Harvard's personal reading, they seem to already be doing that a little bit. The personal reading includes qualities such as compassion, kindness, whether one is courageous or not. And when you and
Oh okay, I'm starting to see why Asians in particular are getting really low scores.
I'm sorry that I'm making jokes about this. But when I actually read, when I think about the implications, I just, I can't stop. I make jokes. Sorry, you know?
Yeah, no, that's the only way to get through it. It's it's to make jokes but basically what Peter Arcidiacono in his research has already found is that with respect to other metrics that Harvard admissions officials consider, such as academics, high school teacher and guidance, counselor recommendations, extracurricular activities, those would correlate to a high personal rating, and it does for other racial groups. And it does most of all, for African Americans. It does the least it actually does the least with respect to Asian Americans that even if Asian Americans score in the top academic decile they receive on the other ratings, I believe it's out of a score of five or four, they receive the highest mark there, they're going to be perceived as having low likability, not being courageous, not being compassionate, or kind. So these are code words that they're going to use more of after a potential strike down, but they're already doing it today.
Okay, yeah. I mean, that that was my question. I mean, so we were talking mostly about universities. Affirmative action, obviously also applies in the private sector. And can you just talk about the legal framework there? Because, you know, obviously, you know, unless you're a federal contractor, there's not gonna be federal money going into it. So I mean, I this was mostly about the Equal Protection Clause, I think I'm assuming then. Like, can you talk about that outside of the educational context?
Sure. So I mean, affirmative action hiring is going on, is going on everywhere too, in the private sector as well, that's largely with respect to a lot of what's happening with the diversity, equity and inclusion work. I'm not aware of if there are, there's any sort of legal framework in the same sense that, you know, like, I mean, the diversity rationale thing is a lot of what what is applied in the context of higher education and federal contracting, is, in fact applied in the private sector, as well as the diversity rationale, its documents are much more hidden. I wish there would have been stories of this sort. And I mean, this wouldn't surprise me at all actually think it's quite obvious this is happening. These various large companies and organizations have a set number of various minority groups in mind that they want to hit in order to facilitate diversity. But I do think a lot of the same legal framework that is applied in the context of higher education applies within the context of the private sector and businesses as well, but it would perhaps be under Title VII of the Civil Rights Act.
Okay, so if what you know if the Students for Fair Admission if they win, that's not going to affect that.
That's an interesting question. It depends on how broadly the justice is write the majority opinion. So this came up in oral arguments for the cases because the Solicitor General Elizabeth pre Logar, she, she wasn't an advocate for either side, but she kind of spoke and represented the view of the United States through the Biden administration. And she made her entire argument on the basis of you need affirmative action to have diversity in the military, and the pushback that she got from a lot of the Conservatives justices was Whoa, whoa, this is specifically about private and public higher education do you are you asking us to and they kind of come back or if we strike down affirmative action, then since you're asking us to apply now to military hiring and the military, should we strike down affirmative action, that context? And she got super nervous and said, No, no, no. But the question of is this going to be limited to education is a really good one. Because it all depends on how tightly or broadly the court writes the opinion.
Okay, so that's not as of this recording, that is not certain. It could be a narrow ruling, it could be a broader ruling. And just to be clear, for those who are not aware, I mean, some of these “conservative justices” quote unquote, what's called conservative justices they’re - they have a long history of not being very friendly to affirmative action. I know John Roberts, the Chief Justice is seen as a bit of evolving to the left by some people, but when it comes to affirmative action, he's been he has a long track record of having strong opinions on this, right?
Yes, he does. And actually, in an affirmative actionesque diversity case, I think it was 2007 called Parents Involved in which the evaluated a sort of racial quota type preference plan in K through 12. school context, he not they ultimately ruled that diversity rationale only applies with respect to education in higher education, not with respect to K through 12 education in the US. But the famous line he said was the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
Yeah, so I mean, if we have a study, let's limit it to the very like, high likelihood case here again of… Okay, affirmative action is, is no longer licit in education. You have this massive boom with over the last really the last three years, but even earlier, diversity, equity and inclusion. And you know, what that really means is, you know, certain types of diversity, racial diversity, sexual diversity, gender diversity, I guess, you know, whatever you define that. And I think that's about it, like some people talking about class, but then never really do anything about that from what I can see. Okay, so what happens to that? Yeah, I don't. That's those people are still gonna be around, right? There's not gonna be mass layoffs, I mean, how are they going to pivot? Like, have you thought about this? I got people talked about it.
Yeah. So it's funny you bring that up? Because I recently watched and all hands on deck. What are we going to do if the court like writes a very tight opinion saying no race considerations at all. And the individual that was running this meeting, brought up the notion of Reliance interests, which who would typically when a court strike when the Court strikes down or precedent, one of the prongs that has to consider is the Reliance interests like how are the people that have a stake in this situation in this law, this environment going to be adversely affected? I thought it was hysterical that he brought that up, because I mean, the DEI bureaucracy in the United States has become 10s 20 millions of dollars, we're, you know, massive industry. And so affirm a tightly written opinion that strikes down the consideration of race, not just in higher education, admissions, but in hiring etc, in public and private universities is going to adversely affect DEI. I don't see. I mean, there perhaps could be layoffs. But I think that what's going to happen is that these individuals, officials, administrators, are going to find ways to like we spoke about a moment ago, just get our get around that decision. I don't see that this I don't see this one court decision completely dismantling the DEI bureaucracy, even though I would like that to happen.
So, you know, here's a question. So, you know, I'm hearing you know, rumors, I mean, I haven't followed up on it my myself of, you know, just like a lot of volatility and racial identification, self ID. So we have these diversity metrics. And I mean, can people just I mean, there are a few cases where I think people have been caught like obviously lying like they said they were Native American but it was just like a straight out lie. And
Like Elizabeth Warren
Yeah, I mean, she has a you know, there's actually other professors. There's another professor, who was also like much she was actually a Native American scholar, but she turned out she was a liar. Like, literally, she was lying about it. And her sister also lied about it. There's a whole article, I think it's in New Yorker about it, but she still has tenure. So she still has her job. I mean, consequences are social. Really? Right. So I guess my question is, you know, we have more and more people with mixed backgrounds and all these other things going on. And, yeah, I'm just gonna say, I don't think I can say, I'm gonna be like, a little generic here, just so that, you know, I can protect the innocent, but, you know, there are cases, I've been told that there are some elite. I'm gonna say it's law schools, where they actually do investigate backgrounds. They don't just take your word for it, because, you know, they started seeing way too many Native Americans applying. So in any case, so that does happen. But I guess my question here is, okay, we have a situation where affirmative action is self ID, and like, you know, what have you seen in terms of the distortions? And, you know, I mean, I think the most famous case, the most obvious cases that I always hear about are, okay, so you need an X amount of black people, right? And, you know, for the, for the DEI like, you know, or for for the administrators, black is black. And it turns out, they're mostly, you know, in certain, you know, areas, they're mostly African, the children of African immigrants, African American immigrants, or the children of West Indian immigrants, West Indian immigrants, there's not that many American descendants of slaves, like say, like, you know, 25%, or something like that sometimes. And so then obviously, that causes like a massive, you know, German drawing, you know, these sorts of things are just there's a lot of cases of this. Can you talk a little bit about what you've seen in your studies of these sorts of, let's call it identity arbitrage?
Sure. So the New York Times had an essay they wrote in 2004. And I'm surprised it's still up looking into this exact question. It's titled something like, who actually like black students at Harvard, but who actually are they and what the this piece from oh four found was that two thirds of the black students at Harvard are either the children of - are the children of African or West Indian immigrants, or they themselves are immigrants, and only 1/3 had all four grandparents born in the in the United States, which is correlated to highly with being the descendant of a slave. And so you have two thirds of students that are black students at Harvard, that are immigrants or the children of immigrants, and then you only have 1/3, that is African American in the sense of a descendant of a slave. And so in that sense, if the original purpose, which was the original purpose of affirmative action was not to achieve greater student diversity, but it was to remedy societal discrimination, first against African Americans due to slavery and Jim Crow, and then expanded to other racial minority groups. So if the original purpose and many advocates of affirmative action like Nicole Hannah Jones tweeted this, the day after the Supreme Court decided they were going to hear the students for fair admissions case, which is, if the court overturns the diversity rationale, we need to go back to affirmative action as it was originally intended. Well, even affirmative action as originally intended, has led to middle class and upper income blacks in the United States, the children of immigrants or immigrants receiving the preferential treatment as opposed to low income, African Americans or the descendants of slaves. So there is distortion definitely in that way.
Yeah. I'm gonna tell the story because, well, if you're super obsessive, you could identify this person, I'm sure but I have a, an acquaintance in graduate school. His, all of his grandparents were German. And but his parents were born and raised in the Dominican Republic. And he grew up in a Spanish language household. So he has a fellowship for people of Latin American background, and there was a lot of people of Latin American background who were not happy he had that fellowship just because he was 100% German, and he looked at so I'm laughing. It's kind of a laugh, but it's also absurd, right? So I guess, you know, part of the issue that I'm probing here is there was a lot of, you know, absurdity, absurdities, distortions, and just unintended consequences of our current regime due to the diversity rationale that you were just talking about with just as you said, kind of an ad hoc compromise, right?
Yes. And you actually see this like the being most abused on the side of admissions officials doing the abusing with respect to applicant Those that are categorized as, quote, Asian American, which I mean, the racial category is in many ways. I don't necessarily want to say meaningless, but it's quite superficial. And so for example, when you disaggregate the larger Asian American category, students that are penalized the most in elite college admissions are tend to be Chinese American and Indian American applicants. And then if you are from a perceived underrepresented Asian origin group says, As Vietnamese Americans, you do, in fact, receive an admissions tip in a manner not exactly like but similar to a black or Hispanic applicant. The issue with this, and I mean, of course, scholars on the right have done a lot of work on this, but a lot of scholars on the left back in the 1980s, like William Julius Wilson brought this out, which is that affirmative action programs that are based solely around race as opposed to say, class, are not actually helping those who are most marginalized in society. And in one of the amicus briefs that was filed in support of students for fair admissions suing Harvard, it was from two groups of Asian American organizations. And they made the point that low income Chinese American students are often negatively impacted by affirmative action, because they're perceived as being over represented and an elite Asian origin group in the United States, when that's not necessarily true.
Yeah, that's fair, I will say, Let's just be entirely candid about some of what's going on here, though, is, you know, I know this, this is true in the case of Koreans, you know, English language education is not as advanced as Korea, in South Korea, as you might think. And there are a lot of people with high educational qualifications that came to the United States, and, you know, they run small businesses, you know, and they're working class, and, you know, their kids are raised that way. And then they go to MIT, and it's like, oh, well, you know, great success. But I mean, honestly, if you look at their lineage, you will see that, you know, these are people with, let's say, high human capital, they have a history of multigenerational achievement. So I just want to be candid about that. Like, I think that is true about a lot of Asian Americans, but Asian Americans, a lot of them do have a, you know, life history coming to the United States, you know, getting some education or, you know, in the process of getting an education. And so, maybe they are raised in lower income household, but they do have, you know, often considerably, you know, high human capital. And that's not always true, if you look at the family history, but it's quite often true. And let's just be, you know, honest about that, in my opinion, I think that has to be something that needs to be brought up.
Yeah, definitely. I completely agree with that. I think what the issue and, and different organizations like one organization that is quite anti affirmative action, and, and has been very vocal in filing amicus briefs, and sort of being working along with students for fair admissions is the Asian American Coalition for education, and they're a coalition of 368, Asian American, small businesses, parents, just student groups, etc. And they've made the they've made that point that while there is, you know, to your point about Asian Americans, regardless of sort of class status, having had this sort of higher human capital, a lot of that, you know, the sort of the selective immigration thesis and that whole notion, it being true, a lot of these admissions officials in documents that have been disclosed during the trial, and whatever, sort of assume that all that all, that all members of various ethnic groups and Asian Americans writ large have this certain level of maybe economic advantage. I would say that that's not that's not necessarily materially true. But yeah, definitely, there's like, sort of those selection effects. And obviously, culture plays a role in all of that.
Yeah, I mean, you know, you were talking earlier, which is a well known thing you were talking earlier about, you know, the over representation of African immigrants, children of African immigrants, West Indians, etc. I mean, you know, with Asian Americans, you, of course, like the most famous group is the Hmong which Asian woman left wing Asian American activist loved the Hmong because they were poor. And you know, there was issues with violence and assimilation, just for the context for the, you know, people that didn't you know, guys that went to Vietnam know this, and people from Southeast Asia know this, the Hmong are very different than the lowland Lao. And they're actually not integrated into the Buddhist civilization of the lowland Lao. So they're, you know, I’m not goingto use the word backward, but they were slash and burn, you know, farmers in the uplands. And so when they came to the United States, there was I mean, these are people that come from a non state society, a tribal society. And you know, there were cases of like apartment complexes burning down in California, because they started a fire in the middle of their living room. Okay. So this is where they were in the 1970s and 1980s, with a lot of problems, very high fertility, etc, etc. But if you look at the statistics now they're actually doing okay, they're not, you know, super rich or anything like that, but they're converging to the American medium. So, you know, Asian American activists are really focusing on the Bhutanese right now. So, you know, thank God, they're here, because they have some statistics that are very useful. You know, my point is that, you know, I don't want to, you can slice and dice these things. And you know, what I would say, just like editorializing is, when you start to get into this game, it's like a never ending pit of complexity. You know, really, they're not going to they're not, it's a race, they can't really win. But you know, they're trying to do it. I guess, you know, the question that that I'm just wondering about, though, is the American elite, let's say in universities, they are uniformly against. So there are Asian American groups that are against students for fair admissions, most of the elite? I mean, you know, standard Asian American NGOs are against it. I think didn't do the anti Defamation League come in on the side of Harvard.
Yes. All these all these sort of, you know, yeah, all these larger organizations, and nonprofits are on the side of Harvard and UNC.
Yeah, so I mean, you know, the professional managerial class is against this, they have a system that they control, and then it works. Okay. Are they actually going to follow the law? I mean, I guess that's just straight up, I'm just asking, Is there gonna be massive resistance? I'm trying to get a sense of what people are anticipating what your intuition is, as someone that studies this topic?
Sure. I do think there's going to be massive resistance from corporations from the government from public and private universities. And that's why I think that the strike down of affirmative action in June will be a great first step. But I think it's going to take years and years and years of individual lawsuits for and like potential Department of Justice investigations, etc, for this policy to actually be dismantled. Like it's not going to, there are a lot of people that are and even after hearing the initial oral arguments back in October, I was excited because you know, they were five hours long and the Harvard and UNC attorneys were for once forced to go on the defensive with questions from like Clarence, Thomas, and Alito. And so there was that initial moment of, oh, this is great affirmative action is going to be no more. But when you see all of the top schools in the United States, at the same time, getting rid of the LSAT, the MCAT, the AC LSAT, the AC t, when you see these educational consulting companies running seminars for admissions officials at the top schools saying create sort of a screening victimhood assay, eliminate standardized testing, tell high schools to no longer report AP enrollment and AP scores. These are all covert ways that the elites in public and private universities are going to come together to resist the decision.
Yeah, so you know, I use the term massive resistance, I just realize, you know, there’s going to be not Americans that are just gonna think that's a generic term. That's not a generic term. I'm looking here to Brown v. Board of Education, and the reaction in the south when it came to desegregation. So that was I think Brown v. Board of Education was ‘54?
Yes, there was 1955 Brown v. Board of Education (II). So 54 was when the initial sort of strike down of segregation, the overturning of separate equal and then 55, was sort of the decision where the court provided a bit more guidance on how these various districts could proceed. And who was in charge of that state and local judges. And also, the second part contained the infamous phrase with all deliberate speed, which basically allowed a lot of these southern school districts etc, to drag their feet for years and years. And I think your point, equating the two, this is exactly what's going to happen. Unless the Court writes the tightest opinion it could which frankly, I don't necessarily see happening, mostly because I mean, they they can't anticipate all the potential ways that admissions officials and schools are going to try to get around the law the so I do think it's going to be the same sort of all deliberate speed situation, and it's going to take years and years of lawsuits to actually chip away at affirmative action.
Yeah, so from what I remember, the de jure like legal, I mean, I mean, basically, segregation persisted in much of the South, not all of us have some of it actually they switched really quickly. Into the late 60s. And then some sorts of de facto segregation persisted deep into the 70s. And then there was an interlude where there was relatively less segregation. And now there's actually been re segregation, statistically. And that's for, you know, sociological reasons and outside the purview of, of this discussion. So that's the historical arc of that particular legal regime. Honestly, there were a lot of people in the southern elite that were not totally happy with segregation, there are business reasons, you know, like duplication of services and all this stuff. Some of the some of you guys who have, like, you know, more libertarian economic backgrounds are well aware that a lot of public accommodations, you know, trolley services and whatnot, were actually quite resistant, because it made business a little harder, you know, it cost them some money. So, I think, if I had to guess this is actually going to be harder, because more unanimity across the whole elite class than there was in the south, to be honest.
Yeah, I completely agree. And I mean, earlier, when I mentioned Reliance interests, you have millions and millions of dollars invested in the system of not, they wouldn't necessarily say affirmative action, though it is that policy, but the notion, but the diversity rationale that has then spurred off into the Diversity Equity inclusion DEI system, so sort of all the elite have understood this. And they view actually, I, in another sort of training seminar that I watched, the education consultant equated the complete strike down of any consideration of race in any way, even up even holistically if the Court were to do that to Armageddon. So that's how they're, that's how they're viewing these strikes. And like they all sort of agree that if the Court said you can't even include race as a factor of a factor of a factor in some way, it's going to be like Armageddon, basically.
Alright, so, you know, there's gotta be resistance, there's gonna be dodging. But, you know, you have an op ed, in the New York Times. Last fall. You said those betters ways to make campuses diverse. So, you know, yeah. Show us the way like, you know, let's hear your vision.
Sure. So I the main point I made in that op ed is that for the first part is that when Justice Powell established the diversity rationale, he said in his plurality opinion in Bakke explicitly, I don't mean just race, he described diversity writ large. And when he explained it, he talked about, you know, the student from Idaho, the student of from a single parent, household, a pianist, a football player, etc. That's obviously not how diversity is construed today. And as a result, by only focusing on diversity in terms of race and ethnicity, there are many other forms of diversity that are missing in higher education, particularly at the elite schools. One is socio economic diversity, diversity of class, which is something which is a solution that I kind of proposed in that op ed, which is if you're if you want to maintain the diversity rationale, and provide some sort of admissions tip, the way to do that is through a race neutral alternative in the form of, for example, a socio economic tip. And this is actually what students for fair admissions put forth in their legal argument. They didn't say, you know, only merit based admissions, they said, if Harvard tried to increase socio economic diversity, that, in turn, they found would lead to an increase in combined Black and Hispanic enrollment at Harvard, it would lead to an increase in Asian American enrollment to Harvard, it would lead to a decrease in white enrollment. And so class diversity at Harvard would skyrocket currently, currently about the the median household income of a student at Harvard is about $169,000. So there's not a lot of socio economic diversity going there. So that's one way to do it. And Justice Alito actually said this in his dissent in the Fisher case, which is that the University of Texas at Austin had more socio economic diversity and racial diversity when they did not have affirmative action, as opposed to when they did so using a race neutral alternative in the form of an admissions tip based on class as opposed to race could actually lead to greater diversity in the terms of not just racial and ethnic but also class, which is severely lacking at these top schools.
Yeah, I think New York Times had a, you know, survey, where they had an analysis so like, you know, Colgate was actually really bad. You know, they're, they're, let's call them like, you know, somewhat obscure rich kids schools, Hamilton, Colgate Colorado College, no offense to my friend who might be listening who went to Colorado College. But you know, they're these, they're these private school, they’re great schools, but they don't have the names of Harvard or Yale. But basically, you know, that's where like, lower upper class, upper upper middle class kids, people go send their kids to have fun for four years, you know, major in business or whatever, before taking over this car dealership, or something. And so then you have Harvard, I have to say, I've written about this multiple times on my blog, maybe I'll post a link to it. You know, we've talked a lot about Harvard, because that's the case. And Harvard is important because Harvard is where the American elite, especially the liberal, and the Democratic Party elite, the McKinsey elite, Goldman Sachs elite, you guys know what I'm talking about, is formed, right? These are the people that will write for the New York Review books in the New Yorker. It's important, you can go to University of Michigan, get a degree in engineering and have a really great life, as, you know, Senior Manager eventually at Ford or wherever, but you're not going to be shaping the public discourse. Like if you want to shape the public discourse, if you want to be a leader, you'd go to Harvard, right? If you want to be the head of the NIH, maybe go to MIT. But I just want to be clear for non Americans what the stakes here are, and why people care. And I also want to be clear, let's just make it explicit, and transparent. What Harvard is about, it's not about academics, it's not about merit. The people who go to Harvard are all smart, they used to have really high test scores, maybe in the future, they won't, because we won't know. But the point is, yes, they are all scholarly, but they're not selected from the top scholars of the country, there is a minority of them that are selected, because like Jared Kushner, their parent is really rich, it's a very small minority. But everybody knows who these people are. And if you ever talked to people that went to Harvard, you know, exactly. Like what category they're in, because they do not sound like they should have gone to Harvard, you know, let's just be honest about that. Like, they're just dumb compared to the other Harvard students. Okay, so we got that category, we have a lot of legacies that are coming in through athletics, they tend to be white, they play lacrosse, or, you know, they do some swimming or whatever. Okay, so like, there are those people, then you have the Asians, and you know, the other minorities, they tend to have less legacy, although, you know, as the generations go on, they'll have more of that. So, you know, you have this hybrid student body, and what they're trying to do is they're trying to create the power elite, and that power elite will eventually give them money. And we'll give them prestige. And we'll give them power. And so they're not just trying to educate students, for the world, they're trying to maintain their institutional power in this country. So if Harvard is 40%, Asian, that is a problem. Because you know, government in the United States is democratic. And people do tend to vote for the people of their own ethnic, you know, background, that's just a fact. It is very unlikely the 40% of the people in the House of Representatives will be Asian anytime soon. So that's just going to be a problem in terms of their racial demographics. And I'm just, you know, Harvard says they're about, you know, like, I saw, like, Drew, is it Gilpin? Was that the former president's name before the, or the current one of Harvard? So what she said like 10 years ago, something like Harvard's about inclusion, this is just a flat out lie. Harvard is about exclusion. Like literally, okay? In the literal, like, if an alien came down, they'd be like, Wait, does that mean the opposite of what I think it means? So it's a flat out lie. Well, why did she get to live because like, you know, she's, you know, President of Harvard, she gets to lie. So they lie to your face. And they tell you a certain thing. And you're just supposed to, like smile and bear it because, you know, most powerful people, they went to Harvard, you know, you know, editor Atlantic went to Harvard, you know, New York Times, publisher went to Harvard, so they're not going to call the president of Harvard out. But that's a lie. It's not about inclusion, it's about exclusion. It's about creating power. It's about maintaining the power and maintaining and perpetuating that power. And it's about also like keeping the endowment large. And so if you see some internal statistics, not that, like people have told me these sorts of things, but maybe they have, that there are different patterns of different ethnic groups of who gives money back to Harvard, and these elite universities. So this is, like some of what cannot be spoken of like, let's just be entirely honest. You know, yeah, they do kind of care about diversity. But I mean, what they really care about is maintaining their status in American society. And if you make it based on say, a standardized test, they have no control. They want to keep control. Right. And so that's the fundamental problem that I think is facing them right now. They have everything under control. I mean, I know what type of like, you know, mathematical models they're using in terms of like tuning the parameters. I mean, it's like with modern computers is trivial. You can ethnically balance so easily. And like figure out like, what bundle of characteristics and stuff like that. And I know that some of these universities use like, you know, interviews and all this other stuff, but, and they must have like a certain quota for the super rich that like, you know, the dad will fund a building or something like that. So I mean, I think like that's that's not true, right? Apologize to the listeners and the viewers, but I did wait for a while before I went off. Sorry. Some of them complain if when I express my views too much, but I waited for a while. Okay, so you're doing your dissertation on affirmative action? We've been talking for a while, I think the listeners and viewers know what is going to happen. And they know the historical context. What are you going to be doing? You know, in policy, if affirmative action is officially a thing of the past, officially.
A lot - So a lot of a lot of the work that I'm doing now to our earlier conversation has been kind of looking at anticipating the ways that the schools and different institutions are going to try to get around it. Other areas that I think that this is quite interesting to look at. And what I think is going to be the next fight of this because again, these cases are focusing on higher education, it's K through 12. So what I've been looking at as well is the move away from merit based admissions at a lot of the exam schools that were originally founded as magnet schools for examples at schools to help talented gifted, low income minorities in different urban centers throughout the United States. And so I've been following that. And that's kind of the next area I'm looking for. You see, the Fourth Circuit back in September, heard the case for Thomas Jefferson High School for mathematics and science, you know, the magnet school, they actually came out with a holistic review process, getting rid of merit based admissions, and it was quite clear from what was presented at trial at the district court, that they had implemented this plan to specifically cut down Asian American students, I think it was that Asian specifically Indians made like 70%, or something of the student body. And after this plan, it had gone down to 43 or something. And so this is happening. You know, Bill de Blasio tried to do this with Bronx Science and Stuyvesant in New York City. This happened with Boston, Latin, Lowell High School in San Francisco. So a lot of what I'm looking at now is kind of the next iteration of this, which is the merit based high schools in K through 12. stuff.
Yeah, let's let's be clear about what you're alluding to here. So there's some of these schools in United States, they're public schools, but they have a gated entrance exam. And that's basically all they use. And so when you use a dumb and blind, and I don't mean dumb, and like, you know, stupid, I'm just saying, like, you know, it's not very sophisticated, it's an exam. And, you know, you can study for the exam, and you do well or you don't do well, and you get in based on the exam. I know Stuyvesant you know, for a while, it was like 75, like high 70s, Asian. You know, I even had a friend who went to Stuy he's Jewish American, but all of his friends were Korean, because he hung out with the Koreans, like there's a whole, you know, subgroup in Stuyvesant of Korean. So it's, you know, it's a different type of diversity. I do think that this does point to like, you know, a lot of Asians, a lot of Asian parents, like, they actually are not going to be super happy if the school that their kids go to is mostly Asian, because so for example, let's let's talk about a Harvard, you know, I have friends that have gone there, and I'm sure you have too. And you know, I'm in the startup world. And one of the great things about Harvard is like really smart kids like Mark Zuckerberg, Zuckerberg, from the upper middle class, can meet the children of the captains of industry who aren't that smart, but have access to a lot of capital. So there's that sort of synergy. And I think a lot of Asian Americans, parents that are striving, you know, they want their son to be on the crew team, with the last WASP at Harvard, you know, so I think, let's be honest, like, there's other things going on like that, you know, overturning the current system, I suspect it's gonna, it's going to cause a little bit of chaos, and people are going to be retuning their expectations, right, and trying to figure out how to optimize their individual outcomes, depending on what they want to optimize.
Definitely. And what's interesting is when you read interviews from parents in places where these merit based public schools are trying to move away from merit based just kind of like holistic admissions lottery system, something like that, you talk to these Asian immigrant parents. They say in these interviews, the reason we want our kid to go to the school is precisely what you're saying, which is that it's a golden ticket to the upper echelon of American society. You know, you're going to meet certain types of people that are going to then help you then into a school like Harvard or Yale, you're going to be other types of people. And then you're going to get this amazing, you know, white collar job and they view the admission in ninth graders, eighth grade or whatever, to one of these selective exam schools as the first step on the road to success in the United States.
Yeah, I think, you know, just as we're concluding, you know, you know, my own personal perspective is, I think, you know, I like transparency. I like openness. I like truth. I like honesty. You know, I think we're gonna have more complicated discussion. You know, I am, you know, kind of like a soulless nerd. So, I would be okay with a test, you know, but I know most people, they like other things, they read fiction, you know, they're much more diverse. And I'm just, I'm just trying to be candid here in terms of like, you know, my preferences are not, you know, in the median. And so I understand that. But, uh, you know, it's good to have a discussion that's predicated on the truth and reality because, you know, we just, you know, earlier joked about Asians, Asian Americans having bad personalities, this is just, this is just farcical like everyone knows, you know, that Asian Americans have great personalities. I mean, like, they can all play the violin, you know. But, you know, I mean, it's just, we're not talking about reality. We're shadowboxing reality. And so I think, I think as we go forward, we should talk about what we want universities to be, what their roles are the different types of universities, all of this like, just like fakery, I would like it to be stripped away, partly because, you know, we as a country, you know, we're still the most powerful nation in the world, we probably will be for a while. But, you know, there's other countries out there, you know, some of them particularly in East Asia with 1.4 billion people that are making advances, and we do need a higher education and our universities to be great. And we don't have I think, as much slack as we did. Back when Bakke was decided to be honest. You know, we need the best of the brightest to be working hard so that we don't get enslaved by the People's Republic of China or the AI overlords. I don't know. This is gonna be it's gonna be interesting couple of decades. That's all I'm gonna say. So Renu thank you for coming on the podcast. And yeah, I'm sure we're going to be hearing a lot from you in the next couple of years or decades, depending on I don't know maybe you want to go to law school become a lawyer. I don't know. Everyone seems to want to go to law school today, but that's
After the PhD. I'm all set.
Okay, okay. Soon to be Dr. Mukherjee. All right. I will talk to you later.
Thank you for having me.
Is this podcast for kids? This is my favorite podcast.