Prescription and weight loss injections are all over the news right now.
People want them, people can't get them, everyone is talking about them.
They seem to work by removing hunger, but what does that really mean?
This episode of Gastropod, we talk to people who've taken these drugs and felt their hunger
suddenly disappear.
We also talk to the researchers who are figuring out the science of hunger and fullness, how
it works and how it shapes our lives, plus why each of us experiences it so differently.
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Listen to Gastropod, wherever you get your podcasts.
A live action remake of The Little Mermaid hits theaters this week with the Black Princess
Ariel, which good, right?
It is very much giving the skin of diversity, but not the root of it.
It doesn't feel fully integrated into the movie.
Disney and Black Princesses and the racial politics of fairy tales.
This week on Intuit, Vulture's Pop Culture Podcast.
If you can believe it, next weekend is Memorial Day, the unofficial start of summer.
And this has the potential to be a hot girl summer like no other.
It'll be time to grill, hang out by the pool, see some live music, maybe do some gardening.
But the warm weather and Beyonce concerts aren't the only things to look towards.
For those of us that closely watch the news, we know it's about to be Supreme Court decision
season.
Scotis will be releasing decisions from their stacked term.
Those apple impact things like gerrymandering, LGBTQ rights, and college admissions.
I'm John Glenn Hill, and this week on the weeds, Affirmative Action.
The organization's students for fair admissions, backed by the legal strategist Edward Bloom,
has not one, but two cases at the Supreme Court this term.
And both will likely change the role affirmative action can play in college admissions and hiring.
The stakes are high, and this decision won't likely have implications far beyond who gets
into what college.
It could also reshape our workplaces and even what the US military looks like.
So I sat down with what I consider to be an epic reporting duo for this conversation.
My name is Fabio Lassenius.
I cover race and policy at Fox.
And I'm Ian Millheiser.
I cover the Supreme Court.
Okay.
This feels very much like, I don't know.
I feel like we're the power Rangers assembling or something.
Like I'm very excited for this episode because you all are two very smart people, very well
versed in this.
So Fabiola, I'm going to have you start us off before we really take a deep dive.
I feel like we talk about affirmative action all of the time, but what is it actually?
What are we actually talking about?
So affirmative action is a set of policies and practices that institutions implement to
basically increase representation of marginalized people in various areas.
And so when we talk about affirmative action, I think we mostly think of it in the educational
context, but there's also affirmative action in the employment context.
So when it comes to education, we think about admissions and with employment, it's mostly
in terms of who you're hiring.
So an example of that is government contracts or just even the corporate space when people
are trying to make decisions about who to bring on for a role.
And Ian, how does it work in practice?
What are some examples?
So like the specific details, especially in universities is going to depend on the particular
school, but at any school, it's basically going to follow a particular pattern.
There's three types of applicants.
There's applicants who are just so stellar that you're going to admit them no matter
what and no matter what factors other than grades and test scores you're looking at.
There's some applicants that just don't meet the bar where you're going to consider them
at all.
And then there is this middle group of applicants, all of whom are exceptional applicants, all
of whom are people who could thrive at the school that they've applied to, but the school
doesn't have enough beds for all of them.
And so they have to make some sort of choices about from this group of all very qualified
applicants who are the people that we're going to choose.
And sometimes they might make that decision because like, let's say that the orchestra's
tuba player is graduating.
So you need to admit a tuba player.
Sometimes the football team needs a wide receiver.
And so you admit a wide receiver, it doesn't mean that if someone plays, say, defensive
line man, that they're a bad person or they're being discriminated against, it's just that
fits the school's need.
And similarly, sometimes a school might say, well, look, this class doesn't have enough
black people in it.
This class doesn't have enough Latinos.
This doesn't have whatever.
And so they might choose again from a pool of applicants who are already all well qualified
that they want to make sure that they have a degree of racial diversity in their student
body.
And so when you think about affirmative action in the early days, it was a policy to basically
remedy historical exclusionary practices.
So saying it's up to the government to actually bring people of color in and put them at a
starting line that is similar to that of their white counterparts.
But then over time, it kind of has turned into a measure to bolster diversity on college
campuses.
And also think about affirmative action in two different buckets.
There's soft affirmative action and hard affirmative action.
So soft is a school saying, oh, we're going to go out and recruit in different locations,
whereas a hard version of affirmative action is what Ian has described with tipping people
into certain categories based on various characteristics.
Can y'all talk about how and when we got this policy in the first place?
What was the moment where it was like, okay, we do affirmative action now?
I think it developed gradually.
You know, President Lyndon Johnson gave a very important speech at Howard University
where he essentially argued that you do not wipe away the scars of centuries by saying
now you are free to go where you want, do as you desire, and choose the leaders you
please.
You do not take a person who for years has been hobbled by chains and liberating, bringing
up to the starting line of a race and then say, you are free to compete with all the
others and still justly believe that you have been completely fair.
And so he argued that there needs to be some sort of corrective measure.
A lot of early affirmative action programs were implemented under Richard Dixon.
And then I think the turning point, Fabiola referred to how like there's sort of a restorative
argument for affirmative action that we need to repair the harm that our society has done
because of the legacy of discrimination.
That was raised in a case called Bockey in 1978, I believe, which is the first affirmative
action case to reach the Supreme Court and the court rejected that theory.
They said like you can't do affirmative action to lift people up who belong to historically
marginalized groups.
Essentially what the court said in Bockey is we will tolerate affirmative action to the
extent that it benefits white people.
So the argument that the courts have used to justify affirmative action is that if I
as a white person go to college and I'm surrounded only by white people, I am not going to get
a very good education because I am not learning about all of the diversity of cultures that
exist in the United States and all of the diversities of culture that I am going to
want to sell my product to if I go into business.
And that is the rationale that the court has bought.
You can't do this because you're looking to help racial minorities, but you can do it
because of the benefits that everyone will get from being in a more diverse environment.
Affirmative action very clearly comes out of the civil rights movement.
I feel like today a lot of people try to make it seem like this wasn't something that was
a part of the civil rights movement, but it very clearly was.
We have MLK basically saying in his 1964 book, why we can't wait, that he really thinks that
black people deserve to have measures that are dedicated toward them, dedicated toward
helping them out in the workplace, helping them out at school.
During that same time in the mid 60s, we have college professors at like liberal institutions
also saying, you know, they're looking around and they're like, dang, this is like very
white.
We need to kind of, we need to move people in here.
We need to get people of color onto our campuses.
So it starts with a lot of these university professors saying what can we do to bring
a greater diversity to our campuses?
Like they were actually being swayed by the civil rights movement.
But then about 10 years later, the mid 70s, the late 70s, we've been talking a lot about
like African American studies lately or black studies.
And so that's the time where more people are arriving on campus and by people, I mean
black people are arriving on campus.
They're protesting, they're saying, you know, the curriculum here does not reflect our experiences.
We don't have any professors here who care about our experiences and so a lot of campus
protests push for affirmative action as well before back E2.
I also think, you know, when we hear people talk about affirmative action, they make it
seem like everyone is doing affirmative action.
And I just, I want to talk about the institutions we're talking about when we talk about affirmative
action, especially in the context of the upcoming Supreme Court cases.
It's centered around colleges, but it's not just college, this is going to have an impact
beyond colleges, right?
Most likely, yeah.
I mean, what is really going on in these two cases?
There's one for the Supreme Court about Harvard and its affirmative action program and other
about the University of North Carolina and its affirmative action program.
But like the big stakes here is that the conservative position on race, at least amongst people
who are on outright white supremacists, like the conservative position on race has historically
been the colorblind position, you know, like the one that Stephen Colbert famously, you
know, February is Black History Month, which is a lot easier to celebrate because I treat
it exactly the same way I treat every month.
You see, I don't see color.
You tell me I'm white and I believe them because police call me sir.
This, they are likely to apply this theory that we have to all live in forced willful ignorance
of the fact that race is a thing that actually exists and actually can affect not just like
people's lives and the opportunities that they have, but again, I mean, what the court
has said in the past is that we all benefit from being in more diverse environments.
And I will note that like if you look at the briefs that are filed in the Supreme Court
cases, the military, you know, there's a bunch of generals and admirals who filed a brief.
And basically what they said is like in Vietnam, one thing that was a real disaster was that
there was a predominantly white officer corps and a very diverse enlisted corps.
And first of all, that's not a safe environment for the officers because the officers, you
know, don't earn the trust of their men.
They just said like, well, the lesson we learned from this, we can never do that again.
We have to make sure that our officer corps resembles our enlisted personnel businesses,
a brief file by all these big businesses saying like, essentially, look, we want to be able
to sell our products to everyone.
And like, if we're going to try to come up with a strategy to sell our product to the
black community, it helps to have black people working for us who, you know, can tell us
what to do.
You know, law firms filed a brief.
So you know, make you a similar argument.
And so you have all of these institutions saying like, hey, this really matters.
You know, and the question is whether the court is going to, you know, listen to these
institutions that probably know more about these subject matters than nine lawyers in
black robes do.
And there's a name that frequently pops up in these affirmative action cases.
It's in this one.
It was also in the 2016 case.
And that's Edward Bloom.
Oh, man.
Who, who is this man?
Who is that masked man?
Yeah.
No, I mean, I've struggled with how to describe this man concisely.
Like I've used the words white rights activist in the past.
Oh, dear.
Edward Bloom is a guy like he's not a lawyer.
I think he was a stockbroker and he was apparently a very successful stockbroker.
I believe he got very wealthy.
And then he decided, I guess that he had enough money and he wanted to become a political activist.
And the particular activism that he has done is that he finds plaintiffs and often connects
them with lawyers who want to challenge policies that benefit people of color.
So he was behind the Shelby County lawsuit, which struck down much of the Voting Rights
Act.
This is actually his second attack at affirmative action university admissions.
He was behind the Fisher case, which challenged the University of Texas's system.
Often these he goes after really obscure things.
Like, you know, there's one case involving how districts are drawn in Texas.
And he basically wanted to come up with the way that would lead to white people being
able to elect more congressmen and fewer Latino people being able to elect members of congress
in Texas.
So like his work has been making these lawsuits happen that challenge civil rights policies
or in other ways try to make the law better for white people and worse for everyone else.
And he's very aggressive in this.
And you know, once he wins one victory, he accepts that victory and he looks for the
next thing that he can do to, I guess, file lawsuits to help the poor oppressed white
people that he cares so much about.
It seems like this has been something very long in the making.
I mean, I think back to 2016 and now do we know how long sort of these cases or this
fight against affirmative action has been in the making?
I'd argue that this has been in the making since affirmative action became a thing.
Like, I was looking through the archives of the New York Times and there was an article
from the 70s that was saying like white in the headline was like white men are mounting
challenges to affirmative action.
And so it feels like Edward Bloom has just kind of picked up the baton and is just continuing
this fight that's been going on since the 70s for sure.
I want to agree with that because like, you know, I've covered, you know, I remember
the Gruder in Grat's cases, which were important affirmative action cases in 2003.
Those were decided right before I started at the Wall School.
I covered the Fisher cases.
I've now covered this case.
And the arguments never change.
Like the arguments raised against affirmative action are the same arguments that were raised
in 1978 and in Baki and most of the arguments defending affirmative action are the same
ones that were raised in Baki.
The only thing that's changed is the Supreme Court's personnel.
They just keep filing the same lawsuit over and over again every dozen years or so.
And the thing that changes is that the court keeps getting more conservative and now they
probably have the votes to get the thing they've been trying to get since the 1970s.
I want to get into the timeline of these cases.
So Ian, you've mentioned Baki.
You mentioned Gruder.
You've mentioned Fisher.
Tell us about these cases.
Like how have they changed, kind of changed and shaped or not changed and shaped affirmative
action?
So I think the first thing to understand is like in each of these cases, the court had
a Republican majority.
And I think the thing that was different in all three of the previous cases is that you
actually had a moderate Republican on the court.
And so Justice Powell was the key vote.
Lewis Powell was the key vote in the Baki case.
And Powell, before he became a Supreme Court Justice, he was the preeminent lawyer in Richmond,
Virginia, the former capital of the Confederacy.
He had been on the Richmond School Board.
And from what I'm able to gather, he was considered a moderate when he was on the Richmond School
Board and was considered someone that both the segregationists felt like they could work
with him and the Black Civil Rights activists felt like they could work with him as well.
But again, if I'm describing someone as a moderate on race in the South in 1960, I'm
not describing somebody who has views on race that would resemble anything that would be
tolerable in 2023.
And so this case came to Powell.
And he was the one who rejected the idea that the reparative notion, the notion that we
can have affirmative action to correct or past injustices.
And then this conservative guy thought about it.
And the most interesting part of that opinion is he says, you know, Harvard, these universities,
they know a lot about how to prepare people for the future, how to train young people
for business, how to train young people to succeed.
And I'm just not confident that I know more that Harvard University does about how to assemble
the right kind of student body.
So there should be a degree of deference to universities when they say, like, look,
this is what we need to do in order to have a cohort of students who are prepared for
their future and for the country's future.
And that ethic pervades the gruder decision where Sandra Day O'Connor was the key to
the key vote when the Fisher cases came up.
Everyone thought because, you know, then the key vote was just as Anthony Kennedy, he had
descended in gruder.
And so everyone thought affirmative action was going to die that time.
And what I think happened in Fisher is, you know, as I've said, every time these cases
are fired, there's a military brief saying it's bad for national security.
If you get rid of this, there's a corporate brief saying it's bad for business.
And I think that Kennedy, you know, being a traditional conservative who understands
the importance of institutions was also reluctant to say, I know more than Harvard University
and the United States military and all of corporate America, you know, what should be
done about race.
The thing that has changed is that, you know, I mean, we still use the word conservative
to describe the court, but there isn't really anyone on this court right now that is,
is a traditional institutionalist conservative, you know, who believe that, you know, we just
have these important institutions in our society and they know a lot of things and we should
be reluctant to second guess them.
You know, we have a lot of people who are very driven by ideology.
You know, I mean, basically what the question has come down to in every one of the past
cases is whether there is, you know, enough justices on the court who are Republicans,
who are just basically willing to have a little humility and say like, maybe I don't know
for sure how to solve the question of race in the United States of America.
That is maybe a harder question than what I learned than anything I was taught in law
school.
All right, we need to take a quick break.
Up next, a deep dive into the two affirmative action cases at the Supreme Court, this term,
stick with us.
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Welcome back.
It's the weeds.
I'm John Klinehill.
Joined today in studio by my colleagues, Ian Millheiser and Fabio Licinius.
We've been talking about the history of affirmative action in the United States.
And now I want to pivot to the current cases.
And there are two affirmative action cases before the Supreme Court this term.
Can you walk us through each and sort of what the issue at the heart of each is?
You can look at these cases through a narrow lens.
You can look at them through a broad lens.
So the narrow lens like Harvard in particular is being attacked because Asian American applicants
are less likely to be admitted to Harvard than applicants of other racial backgrounds.
And if you look at the statistics, there's just no question that if you're an Asian American
you apply it to Harvard statistically you're much less likely to get in.
And Harvard's argument is again we want to have a diverse class.
And like if that means that we have to give an advantage to some groups so we have diversity,
like that is the goal here.
One way that the court could resolve that case is they could just say, well, Harvard,
you have done too much and make this about how Harvard has been terrible to Asian American
applicants.
And I think that's certainly the PR campaign that Ed Blum's folks have been putting out.
You're trying to present this as an issue that's specifically about how Harvard treats Asian
Americans.
The broader lens is that the court isn't likely to rule affirmative action can still exist,
but Harvard just did it wrong.
What Supreme Court is likely to say is no one can have affirmative action.
It doesn't matter what it doesn't matter.
It doesn't matter what you do.
And so like to a certain extent, I mean, again, maybe we'll be surprised.
Like I mean, I've been surprised twice in my career when I thought the Supreme Court was
going to nix affirmative action.
Ooh, what were the what were those two times that you were like, ooh, both of the
fails to please both of the Fisher case.
Okay.
Yeah.
Fisher v. Texas went up to the Supreme Court twice at both times.
Like, I mean, I remember I'm so I'm a little embarrassed by this.
I was an editor at the time.
I had just hired a reporter who was working on it.
And I, you know, I don't know if I should confess this, but I said to this report, you
know, like, I don't know if we should put too much work into the Fisher case because,
you know, Kennedy descended in Gruder.
I think that there's no way that affirmative action survives.
And so like there's just less that we can accomplish here through it.
And I, that was the wrong call.
That was bad of me to say that because again, twice the court surprised us and they said
in Fisher that affirmative, they made it very, very hard to have affirmative action, but
they said it could still exist.
And so that could happen here.
I think that's unlikely.
But like, if you care about affirmative action, like there's a meaningful difference between
the court saying, Harvard just did this wrong.
And the court saying no one can ever do this ever.
What's interesting to me about these cases is that it's both private and public colleges.
And I'm wondering, is there significance there and will that possibly play a role in how
these two cases are decided?
Possibly.
So there's two different legal provisions in play here.
So one is the 14th amendment, which just says no one shall be denied equal protection
of the law.
If you are an originalist, which, you know, most of the Republicans on the Supreme Court
claim they are, you know, someone who believes the Constitution should be read as it was
originally understood, there is no argument that affirmative action violates the Constitution.
You know, like the same Congress that wrote the 14th amendment came up with the Freedmen's
Bureau.
They created all kinds of programs that were essentially affirmative action programs.
And so it's very hard to argue when the people who wrote the 14th amendment came up with affirmative
action programs that they oppose affirmative action.
The statutory argument, I think, is stronger if you oppose affirmative action.
There's a law called Title VI, and it just uses different language.
It says that if you are an institution funded by the federal government, you may not make
decisions on the basis of race.
And so there's a stronger statutory argument against affirmative action.
In the Bocke case, the court said that Title VI should be read the exact same way that
the 14th amendment is read.
And so under precedent, there is no difference.
But you know, this Court overrules precedence fairly frequently.
And you know, just speaking as a lawyer, like, you know, I'm not going to do this, but if
someone hired me to challenge an affirmative action program, like my brief would focus
more on the Title VI argument because like, if you look at the text of Title VI and you
look at the history, it's just a stronger argument in part because the 14th amendment
is so weak.
Fabula, I remember the Fisher case very distinctly, and it was a white woman who was at the center
of it.
And that's not the case this time around.
Can you tell us how the face of these cases have changed throughout the years?
Yeah, I think we all remember Abigail Fisher like standing on the steps of the Supreme
Court, red hair, pale skin.
Becky with the bad grades.
Exactly.
Yes.
Oh my God.
That very, I think it was very smart brothers or the root, but y'all, they were dragging
her.
I was like, Oh my gosh.
Yeah, exactly.
So you're right.
Going back to 1978 Bocke, we have a white man, grads 2003, Jennifer grads, Gruder 2003,
our recruiter, so two white women, Abigail Fisher, another white woman.
But I do want to say make no mistake.
Students for fair action, right?
It's like, I went to their website today and they have what looks like a stock photo
and it's of an Asian kid sitting on a couch.
And so I think the public perception is like, Oh, Asian students are behind this, but like
Bloom is on the record saying he needed Asian plaintiffs to win the case.
So I needed plaintiffs.
I needed Asian plaintiffs.
To me, it's very clear and a lot of people have argued that this organization strategy
is almost to weaponize high achievement Asian Americans to basically say, Hey, look, they're
so good.
They're the model minority.
Like they're being victimized.
When we look at polls and when we look at what Asian Americans think about affirmative
action, polls say different things.
There's one specifically that I was looking at from AAPI data and it found that about
70% of Asian Americans support affirmative action.
Something else I think about is the fact that like there is no Asian face.
Like can you name it like clearly Abigail Fisher, white woman who's standing up like
who was the Asian Abigail Fisher behind this case?
I cannot think.
Yeah, I can't think of a person.
I don't know if it was to keep someone from getting dragged again.
I don't know if it's because I think from that a lot of people exist.
Yeah, I think the answer is that what they've done is constructed this very powerful strategy
of saying Asian Americans are hardworking, Asian Americans are the model minority.
You pit them against black Americans who are not hardworking, who are undeserving.
And so that creates competition between Asian people and black people in the affirmative
action space.
And so it's really unfortunate because it ignores how diverse the Asian community is.
It ignores the needs of different Asian communities within this broader block of being Asian in
America.
And I think it also just goes back to just selective immigration policies of the 1960s
that started in the 1960s that let certain kinds of Asian people in.
You had to be high achieving.
You had to have the right kind of credentials to get into America.
And so this is just perpetuating itself in the affirmative action debate.
And the thing that I find so interesting is that, you know, like Harvard has terrible
numbers when it comes to Asian students.
And the first thing I thought when you said that Ian was, couldn't we fix that with affirmative
action?
I mean, I do question if it will do what it is claiming it intends to do, which is get
more Asian students into universities or, you know, will the numbers look the same if
slash when this is no longer?
I guess a somewhat tepid critique of affirmative action, which is that I think by the time
affirmative action kicks in, you already have massive social problems that just aren't going
to be solved by tweaking the admissions process at a handful of elite universities.
I mean, like it is a systemic problem that like black children tend to go to public schools
that are not the same quality as, you know, the average public public school in the country.
It is a systemic problem that if you are black, you are more likely to grow up in poverty
than if then if you are white or I believe if you're Asian American.
If we are committed to solving these problems, the way you do it is not by saying, well,
there are these 36 black kids and we're going to let them go to Harvard and everyone else
just like figure it out.
Like if you're going to solve these problems, you need to solve the problem.
I mean, really, even before kindergarten, like, you need to address the reason why Harvard
isn't getting as many exceptionally qualified black applicants as you would expect given,
you know, the number of black people who live in the United States.
I mean, this is an extraordinary week intervention that we are talking about in order to solve
a, you know, a tremendous problem of inequality.
I will add to that too, that affirmative action, biggest supporters, like, I think everyone
is known from the beginning that affirmative action was only, it was just a stopgap measure.
It was never something that was going to undo discrimination, undo all of these ills in
our society, but it is one thing, right?
It is one thing that has made a difference.
Fabula, a lot of the conversation about affirmative action on the flip side, it talks about race
neutral policies.
What are race neutral policies?
So race neutral policies would be the alternatives that schools would implement instead if the
court does rule and says that race cannot be used in admissions.
And so it would, in a sense, create this kind of colorblind, or people would at least try
to create this kind of colorblind society, or this vision of colorblindness that conservatives
love to talk about.
I think what's interesting about these policies, those that we have years of data that show
that a lot of these policies don't actually work, right?
California and eight other states have already gotten rid of affirmative action in their public
university systems.
And so some examples of the race neutral policies are focusing on socioeconomics.
So saying if a family earns less than like $75,000 a year, they're going to get financial aid
or doing recruiting at certain neighborhoods in black and brown neighborhoods, or even
doing away with standardized testing, because standardized tests can be correlated to how
much income someone has.
Other examples that have been used in like California and Texas is just like taking the
top high school students and giving them guaranteed admission to certain schools.
And so there are a lot of examples of these policies, but overwhelmingly the research shows
that they are just not as effective at creating diverse campuses and opening up opportunities
for black and brown students as race conscious policies are.
It just also seems a little bit impossible to me to not take in race as a factor at all
the same way you can't help but take so many things as a factor.
I mean, if I hand someone my resume at the top, it's going to say, graduated from Howard
University at the bottom, it's going to say member of the National Association of Black
Journalists, there are conclusions you can draw from that.
If you have someone write their essay about being like a first generation going to college
chicana, I know that is a Latino woman.
I don't know how you divorce those things from one another.
And this came up at the oral argument, it was Amy Coney Barrett actually who brought this
up.
What if an applicant wrote an essay about how integral their racial identity was to them
as a source of pride and the cultural attributes of the racial heritage were very important?
Would that be okay?
Even if it were all intimately tied up, say with the traditions of a Mexican family.
And the university says we want to admit this student on the strength of this gorgeous essay
that the student was able to produce.
Well, you got Ed Bloom out there looking for opportunities to sue universities.
How is the university supposed to prove that it accepted the student because of the like
aesthetical wonder of the essay and not because the essay revealed that the student is a Latino?
I mean, that's just a very difficult task.
The line between so-called race conscious policies and race neutral policies is very
porous.
Fabiola mentioned what is often described as the top 10% policies.
This is something that comes from Governor George W. Bush.
Yeah, when he was governor of Texas, he campaigned for president on this.
His alternative to affirmative action was at the time it was if you graduated from a Texas
public school, if you were in the top 10% of your class, you automatically got into the
University of Texas.
And basically what he was doing is leveraging segregation.
He was like, there were some schools in Texas that were still segregated.
Sip codes.
Yeah.
And if 100% of the kids are black in that school, then the top 10% are all going to be
black kids.
And now they're going to get into the University of Texas.
But like, even setting aside the fact that he was leveraging systemic injustice in order
to diversify the University of Texas, I mean, we called it a race neutral policy because
like, if you look at the language top 10%, like, doesn't mention race anywhere in there,
but like, why did that policy exist?
It existed because George W. Bush, the governor, the government, wanted more black people to
be admitted to the University of Texas.
That was the purpose of the policy.
This was as much an affirmative action policy as anything else.
And there are already lawsuits.
There's an elite charter school in Northern Virginia that recently changed its policy
so that it takes the top percentage of students from every of the middle schools that feed
into this school.
And right away it was sued.
And it went up to the Supreme Court, the Supreme Court sent it back down to lower courts.
And I honestly don't know what the court's going to do with this case.
But the problem is like, if the rule that we get is that you're not allowed to consider
race when you set policy period, then like so-called race neutral policies aren't really
on the table either, because what these policies are is we're going to try to achieve the
race conscious objective that we have anyway.
We're just not going to use the word black when we do it.
We're just not going to use the language of race when we do it.
We know that income is often a proxy for race to an extent.
And so while a lot of the race neutral policies might not create as quickly the kind of campuses
that these schools want, maybe eventually they will down the line.
But right now things are moving very slowly.
Fabula, the reason this has been held up for so long, like Ian mentioned, is not because
it's repertory, but because you know, people say diversity benefits students.
And do we know like in what ways diversity benefits students?
Like where is that argument coming from?
It's coming from the many, many studies that we have about the benefits of diversity.
So like the Century Foundation, one report that they did found that diversity helps students
feel more confident.
Diversity helps reduce racial bias.
It helps strengthen students' leadership skills.
And it also gets students ready for the workforce.
So when you're working in just anywhere around the world, it's just beneficial for you to
learn to work and communicate with people who might not have the same experience.
This is you.
It leads to more team creativity.
And then over time that translates to economic benefits for students.
I'm curious about this part about it reflecting the real world because I think one of the
issues that could arise is that, okay, if this stops and we see fewer students from diverse
backgrounds enter, you know, college, will it reflect the workforce?
Will it reflect the real world?
I mean, college can be important, but it does not have to be the end all be all for whether
or not you live a successful, happy life.
But I would be lying if I didn't say, you know, some of the connections, some of the
setup for internships I had back in school didn't sit me in this host chair right now.
And you know, depending on where you go, affirmative action was a factor.
Like, does this have the potential to fundamentally change kind of what our workplaces look like?
Yeah, even in the case of universities, when it comes to diversity among academia and just
the professors who teach at certain places, just even a place at Howard Wright, think
back to your professors and where they got their degrees from.
If, you know, if black and Latino professors are not going to Harvard and getting degrees,
like, who knows, maybe just fewer professors of color will be entering the workforce.
And so I think they're definitely going to be repercussions that extend far beyond just
a higher education in the classroom.
All right, y'all, after the break, we'll try to read some tea leaves and discuss what
happened during oral arguments in these cases and what it could mean for the future of affirmative
action.
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It's the weeds.
I'm Jaclyn Hill, here with my Vox colleagues Fabiola Cinnius and Ian Millheiser.
So the Supreme Court heard oral arguments in these cases back in October 2022 and we're
awaiting the ruling which is likely to come down next month.
What were y'all's takeaways from the oral arguments?
I mean, nothing in it surprised me.
I mean, I came into it thinking that affirmative action is probably doomed and I left it thinking
that affirmative action is probably doomed.
Now, that said, I think the headline on the piece I wrote after the oral argument is the
Supreme Court discovers that ending affirmative action is really hard.
When the Solicitor General, the Biden administration lawyer who argues on behalf of the United
States, leaned really hard into the military argument.
Again, this argument that we learned in Vietnam, you cannot have an officer corps that doesn't
resemble the A list in personnel.
And on said specifically, you have to let the service academies.
You have to let West Point, the Naval Academy, those institutions be cognitive race when they're
admitting future officers.
And Chief Justice Roberts actually seemed like he might be persuaded by that argument.
At one point he asked, can we create a carve out for West Point and just eliminate affirmative
action everywhere else?
So in that situation, I suppose it depends how significant you think those distinctions
are.
It might make sense for us not to decide the service academy issue in this case.
You know, I mentioned that Barrett was concerned about this question of like, well, how can
you really tell that this student was admitted because of their essay and not because they
are Latino?
Kavanaugh raised the question of like the George W. Bush's top 10% plan.
Like what do you do there?
So one of the things I'm worried about setting aside the racial justice component of this
is universities need to be able to function without constantly being bombarded with lawsuits.
You know, they have to have an admissions policy and like there has to be some ability
for them to just go about and do their jobs.
And if we do get some moderation from the Supreme Court, I think it will come because
of that recognition that that look like no matter what, like the way statistics work is
like, you know, if 17% of your applicants are Asian American and you have a genuinely
race neutral policy, you're not going to have 17% of the class be Asian American every single
year.
Like even if race isn't a factor, like there's going to be a year when it's 23%, there might
be a year when it's 12%.
And like that's just how that works, like, you know, there's a reversion to mean over
time, but things fluctuate.
So like do you want us to be in a situation where every time the Asian American admitted
student body is closer to 12% than it is to 23% that Ed Bloom files a lawsuit and the
university has to spend jobs of either spend gods of money defending it or worse says,
well, like obviously every time we admit too many black and Latino students, we wind up
getting sued.
So we better not admit too many black and Latino students.
Again, I think that if we get any kind of moderation from the Supreme Court, it'll come
not from sympathy to affirmative action, but sympathy to the fact that, you know, you
can't run any operation if you're constantly worried about one of the most litigious people
in America breathing down your neck.
It just seemed like the justices or the conservative majority specifically did not care at all
about the value of diversity.
And so it's a little sad because I feel like in America, we got somewhere where the word
diversity has meant something or the pursuit of diversity has meant something, but there
was a moment in the UNC case where Thomas outright is asking like, please tell me like,
how do students benefit from diversity on campus and just didn't really seem swayed
by the response from UNC?
Mr. Park, I've heard the word diversity quite a few times and I don't have a clue what it
means.
It seems to mean everything for everyone.
And I'd like you first, you did give some examples in your opening remarks, but I'd like
you to give us a specific definition of diversity in the context of the University of North
Carolina.
And I'd also like you to give us a clear idea of exactly what the educational benefits
of diversity at the University of North Carolina would be.
I think on that front it just seems like it's a done deal in that sense.
So, working under that assumption that affirmative action goes by the wayside, I mean, what's
next?
Are we just going to see a bunch of universities say like, okay, the top X percent of students
are automatically accepted?
Are we going to have them say, all right, maybe, okay, black people are 13 percent of
the population, that's like the max we do with admissions, like, or I mean, that's probably
considered affirmative action in that sense too.
Like, what's next?
I can only speculate, but like, my hunch is that this is going to impact the universities
that are maybe one step down from Harvard in prestige more than it affects the Harvard's.
And like, the reason for that is Harvard has so much damn money.
I mean, the old joke is that Harvard is a hedge fund that has a small education nonprofit
attached to it.
The Harvard admissions office just has so many people working for it.
They spent so and like, they really do read every essay and like have multiple people
in like, they really do put a lot of thought into how do we build this class that brings
in people from all kinds of perspectives.
If you are from Idaho and like, they haven't admitted someone from Idaho, like they would
love to have someone from Idaho in there.
You know, if you grew up on a farm, they would love because like that is an underrepresented
group at Harvard.
So like, they want to bring as many underrepresented groups in as possible.
If Harvard wants to give an individual read to like every and like, come up with an airtight
race neutral rationale for why every single person they admitted was admitted to the school
and then just fight that in court, Harvard can do it.
I think the schools that don't have Harvard level money, which is every other school,
but like, you know, schools that aren't, you know, that most elite tier, those are the
schools that I think that are most likely say, look, like the game is not worth the candle
here.
We can spend millions and millions and millions of dollars on litigators or we can, you know,
build a new science building.
And so I suspect that where this is going to be felt the most is that these institutions
that are still very elite institutions and that are still the sorts of institutions where,
you know, the fact that you do or do not get admitted could change your life.
But you know, but not like, you know, the most elite schools, I think, if they are truly
committed to this, they will find a way to, you know, to continue to have a diverse student
body.
But in the meantime, we're going to see black and Latino students admission rate.
I think the admissions rate is going to go down.
They're just not going to be admitted at the rates that they're being admitted now at schools
like Harvard and other places, while schools try to figure out what they're going to do
next.
That's interesting that you say that because my first thought when I heard that affirmative
action was going back to the Supreme Court again was, okay, we have a conservative court,
it's going to be gone.
So the number one thought I had was, okay, time to really fundraise for those HBCUs.
They're those historically black colleges and universities, time to do a renewed interest,
time to help, you know, some kids with their applications.
I'm curious, do we know what this means for HBCUs?
Yeah, it means that, like you said, they're going to need more funding, but a lot of HBCU
leaders, they've been commenting on what they believe is going to happen in the case.
And they're just like, we don't want people to assume that we have the infrastructure
and that we have means to absorb students who would have otherwise gone to these other
schools.
So we just don't have the resources right now.
So that's a scary thought.
And then similarly with the faculty at HBCUs, it's, I think we're going to see some changes
and not immediately, but you know, maybe a decade from now, 15 years from now, it might
be harder to recruit faculty members who are well qualified to teach at HBCUs.
Another thing that I'm thinking of right now, I mean, the three of us are sitting here.
I would say we're pretty successful and accomplished and happy people.
None of us went to an Ivy League for undergrad.
Like that did not take place.
And I'm wondering, does it really matter that much?
And also do people care?
I mean, a very small percentage of the US population as a whole goes to college anyway.
So the journalist Chris Hayes wrote a book a while back where he used the term fractal
inequality.
You know, the idea is like, you know, in the same way that like, no matter how much you
zoom in on a fractal, it looks exactly the same.
Like his argument was no matter how rich, no matter how big of a deal you are, there's
always someone you can be jealous of and like someone who has had like, who has something
that is just so beyond your experience.
I mean, I did not go to an Ivy League, I did not go to any Ivy League schools.
I did go to Duke for law school, which, you know, if you care about the US news ratings
was just ranked number five in American law schools.
And I was shocked when I got there how many opportunities were available to me just because
a professor could make a phone call for me.
I have friends who went to Yale, which has historically been the number one ranked law
school.
And when I speak to them and like what I did when I tried to get a when I got a federal
judicial clerkship compared to their experience, like it is so much easier for them at Yale.
There are so many processes in place.
So like the difference is at Duke, I had a really easy time if I wanted to be a partner
at a big wall firm, making a lot of money, like it was very easy for me to get on that
track.
If I want to be a Supreme Court Justice or I want to be like, I don't know, Secretary
of Labor or something, like I would have had so many advantages if I had gone to Yale instead.
And so like if you're talking about like, will you be able to make it into the upper
middle class?
I think that there are many, many universities that do an outstanding job of preparing their
graduates to get into the upper middle class.
But if you're questionable, but like if we care about who are the people who are running
the country, you know, who are the people who are the CEOs, who are the people who are
the cabinet secretary, the Supreme Court justices, the presidents, like it really does matter
who is getting into Harvard in Yale, because I mean like we've had one, we've had one
black president, where did he go to school?
Yeah, yeah, yeah, yeah.
If we want to have a country where the people who are in those most influential positions
that have the most impact on the most people's lives, if we want those people to look like
the nation as a whole and not like white America, then I mean, I do think it really matters
that Harvard, Yale, Stanford, those sorts of schools are admitting a student body that
represents the country as a whole.
Fabula, what's your take?
It matters.
It matters a whole lot.
Earning a bachelor's degree, I feel like for men, I think the number is that in a lifetime,
you earn $900,000 more dollars.
And for women who get bachelor's degrees, the earnings that you get over a lifetime is
$630,000 and more dollars in someone who does not go to college.
So college is incredibly important.
But I think even broader than that, when we do away with affirmative action, I think
to an extent we let America off the hook.
When we think about that original meaning, the original purpose of affirmative action,
it's a way for America to look in the mirror and say, we messed up.
We did something really wrong and we see it as our responsibility to correct these wrongs.
And so when we say we need to be very neutral, that is completely ignoring all of the inequities,
all of the injustices that still plague various communities today.
And so yes, while a few people may be going to college out of what the total population
is, it matters a lot.
Another thing that I think about a lot is just thinking about who is worthy, who is
deserving again earlier we were talking about, Justice Clarence Thomas.
And in his memoir, My Grandfather's Son, a lot of it came down to stigma and people
believing that you are not supposed to be where you got a seat at.
So when he was at Yale Law School, just believing that he didn't deserve to be there because
of how he was treated by his white counterparts.
And so I don't know.
I think affirmative action matters because when we keep something like this in place, we're
saying, hey, you know what, it's okay that we're saying certain people need assistance
because of historical injustice.
And so when we do away with that, we're basically saying that that raises no longer a factor
when that is not the case.
All right, Fabiola, Ian, thank you so much for joining me.
Thank you.
Thank you.
That's all for us today.
Thank you to Ian Millheiser and Fabiola Cineas for joining me.
Our producer is Sophie Lalonde, Christian Ayala engineered this episode.
Anook Dusso and Caitlin Pinsi-Mug fact checked it.
Our editorial director is AM Hall.
And I'm your host, John Quillan Hill.
We're off next week, but after the holiday, we'll be back with new episodes, including
one about another court case coming up.
I want the government to know.
I want them to see us, the youth, the flesh and blood, Montana citizens, that their actions
are impacting.
A group of young people are suing the state of Montana over climate change.
That's next time on The Weeds.
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