WEBVTT - Affirmative Action Isn't Enough 0:00:15.356 --> 0:00:23.116 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:23.196 --> 0:00:26.156 where we explored the stories behind the stories in the news. 0:00:26.596 --> 0:00:30.476 I'm Noah Feldman. Well it's happening again. We are going 0:00:30.556 --> 0:00:34.636 back to school and this week's episode is all about education. 0:00:35.316 --> 0:00:37.396 At Stuyvesant High School this year, one of the most 0:00:37.396 --> 0:00:39.756 competitive exam schools in all of New York City and 0:00:39.836 --> 0:00:43.436 indeed in the country, eight hundred and ninety five slots 0:00:43.436 --> 0:00:47.036 were offered to freshmen and only seven of those slots 0:00:47.316 --> 0:00:50.916 were offered to African American students. At Bronx High School 0:00:50.956 --> 0:00:53.996 of Science, out of eight hundred and three accepted students, 0:00:54.556 --> 0:00:59.596 only twelve were African American. These outcomes were treated as 0:00:59.596 --> 0:01:02.076 a crisis throughout New York City. They cast light on 0:01:02.156 --> 0:01:06.196 a deep question about the nature and need for affirmative action. 0:01:07.076 --> 0:01:09.636 Mayor Bill de Blasio, on the side running for president, 0:01:09.636 --> 0:01:12.196 waited in earlier the summer with an op ed arguing 0:01:12.196 --> 0:01:15.036 that the city's exam schools should essentially be abolished in 0:01:15.076 --> 0:01:17.436 the form of which they exist. They should be changed. 0:01:17.476 --> 0:01:19.996 He said, to schools that admit the top percentage of 0:01:20.036 --> 0:01:22.996 students from all of the middle schools around the city 0:01:23.236 --> 0:01:27.436 instead of relying on an exam, a fundamental shift in 0:01:27.476 --> 0:01:30.676 a mechanism of choice that has existed for decades is 0:01:30.796 --> 0:01:35.076 inherently fascinating, and it raises the fascinating question about whether 0:01:35.076 --> 0:01:39.316 a debate around testing and affirmative action should be the 0:01:39.356 --> 0:01:41.996 debate that we're having right now. I was lucky enough 0:01:42.036 --> 0:01:44.596 to discuss it with a colleague and friend of mine, 0:01:44.756 --> 0:01:48.716 pressor Randy Kennedy of Harvard Law School. Randy's the author of, 0:01:48.836 --> 0:01:53.316 among many other books, a terrific book called four Discrimination, Race, 0:01:53.436 --> 0:01:55.836 Affirmative Action, and the Law, which you wrote about five 0:01:55.916 --> 0:01:59.196 years ago, and the title of that book says it all. 0:01:59.356 --> 0:02:02.996 Randy has always been a very strong supporter of affirmative action. 0:02:03.516 --> 0:02:06.316 So I began my conversation with him by asking what 0:02:06.396 --> 0:02:11.236 were his initial thoughts watching this drama in New City unfold? First, 0:02:12.076 --> 0:02:15.996 why is it that we are spending so much time 0:02:16.076 --> 0:02:21.956 and effort on these schools, wonderful schools where they educate 0:02:21.996 --> 0:02:27.396 relatively few people. All of a sudden there is a crisis. Well, 0:02:27.756 --> 0:02:29.716 the way in which we even talk about this, we 0:02:29.796 --> 0:02:32.796 talk about these schools are so important. It's so important 0:02:32.796 --> 0:02:35.556 to get in these schools because these are the schools 0:02:35.676 --> 0:02:39.676 from you know that provide a ticket out of well, 0:02:39.756 --> 0:02:42.196 what do they provide a ticket out of? They provide 0:02:42.196 --> 0:02:47.036 a ticket out of substandard schooling. One of the reasons 0:02:47.076 --> 0:02:50.516 why everybody is going nuts about this, why people try 0:02:50.716 --> 0:02:53.636 so hard to get in these schools, is because they 0:02:53.716 --> 0:03:00.276 want to escape regular school. So number one, why aren't 0:03:00.276 --> 0:03:05.876 we thinking more about the character of regular school? Why 0:03:05.956 --> 0:03:11.636 are we so willing to countenance a system in which 0:03:11.676 --> 0:03:15.876 we sort of accept that the regular schools, the schools 0:03:15.916 --> 0:03:20.236 that the great majority of people go to, are substandard, 0:03:20.676 --> 0:03:24.676 And what we're focusing on are the conditions under which 0:03:24.716 --> 0:03:27.996 people can escape those schools. So number one, we need 0:03:28.036 --> 0:03:32.116 to focus more on let's make regular school a lot 0:03:32.156 --> 0:03:36.396 better so that there's not this obsession with escaping them. 0:03:36.516 --> 0:03:39.316 So I agree with you, of course that we need 0:03:39.356 --> 0:03:42.996 to focus more on making every school in New York 0:03:43.036 --> 0:03:45.476 City a good school, a functional school, a better than 0:03:45.636 --> 0:03:48.716 average school. But at the same time, I want to 0:03:48.716 --> 0:03:50.996 push back about why we're obsessing over this. I don't 0:03:50.996 --> 0:03:54.236 think it's just that other schools are perceived as substandard, 0:03:54.236 --> 0:03:57.076 although that's part of it. I think that elite schools 0:03:57.156 --> 0:04:01.916 like Stuyvesant, like Bronx Science, like Hunter are the public 0:04:01.956 --> 0:04:06.396 equivalent of elite private schools, which are very important to 0:04:06.396 --> 0:04:09.716 the cultural life of elites. And that's because they proportionately 0:04:09.796 --> 0:04:13.316 send so many kids to fancy colleges, which are themselves 0:04:14.116 --> 0:04:18.716 the focus of elite accomplishment. And so nationally people are 0:04:18.716 --> 0:04:22.316 obsessing because they think that access to that elite determines 0:04:22.476 --> 0:04:25.796 who are our national leaders. They do, and I will 0:04:25.876 --> 0:04:32.796 still say we are overinvesting in this part of the debate. 0:04:32.836 --> 0:04:37.156 And I think that I have two and interestingly enough, 0:04:37.956 --> 0:04:41.756 people on the right I'm thinking of Clarence Thomas, and 0:04:42.076 --> 0:04:46.316 people on the left, I'm thinking of polemicists that we're 0:04:46.316 --> 0:04:49.996 writing in the late nineteen sixties agree on this. There's 0:04:49.996 --> 0:04:55.396 a way in which we're so focused on the rules 0:04:55.436 --> 0:05:01.276 and regulations and you know, the selection devices for these 0:05:01.396 --> 0:05:07.316 elite institutions, that we're not paying enough attention to the 0:05:07.436 --> 0:05:13.436 institutions that are going to educate the great mass of people. Secondly, 0:05:13.756 --> 0:05:18.396 second point, I think that we are suffering from a 0:05:18.516 --> 0:05:22.116 type of scarcity that need not be you know, we 0:05:22.236 --> 0:05:28.196 keep talking about the few schools that are the select 0:05:28.316 --> 0:05:30.396 elite schools. Well, to the credit of New York City, 0:05:30.436 --> 0:05:32.116 I think they have tried to expand the number of 0:05:32.156 --> 0:05:34.396 them over time. But wouldn't you agree that at some 0:05:34.476 --> 0:05:38.156 point the expansion ceases to be mean, yes, it does. 0:05:38.276 --> 0:05:40.796 And then okay, so that's right at some point and 0:05:40.796 --> 0:05:42.636 if we're talking not at six, but it's some larger 0:05:42.716 --> 0:05:46.596 not fine, and at some point we're still I'm not 0:05:46.796 --> 0:05:49.436 I'm not trying to get through the dilemma. At some point, 0:05:50.436 --> 0:05:52.916 you're going to have scarcity. You can't have a million 0:05:53.236 --> 0:05:57.156 seats for elite schools. If you're going to have an 0:05:57.156 --> 0:06:00.596 elite school, there's necessarily going to be cut off points. 0:06:00.756 --> 0:06:02.956 There's necessarily going to be dilemma. So let me go 0:06:03.036 --> 0:06:07.276 to that, you know, to put it bluntly, I am 0:06:07.436 --> 0:06:14.196 not with Mayor Deblasio and what he's talking about. The 0:06:14.236 --> 0:06:18.556 Mayor has said pretty expressly he thinks the problem is 0:06:18.716 --> 0:06:21.436 the test. It could be. I don't think that anything 0:06:21.476 --> 0:06:23.476 should be off the table. I think that people, you know, 0:06:24.156 --> 0:06:27.876 is this test testing for what we're looking for? Fine, 0:06:27.916 --> 0:06:30.156 you know, I'm not saying that the test should be 0:06:30.156 --> 0:06:35.556 beyond question. I do think, however, in these discussions, it 0:06:35.636 --> 0:06:40.676 is often the case that people stone the messenger. In 0:06:40.796 --> 0:06:45.636 my view, in this debate, the messenger is the test. 0:06:46.636 --> 0:06:49.876 It's the test is a Seis McGraph. The test is 0:06:49.916 --> 0:06:54.476 telling us things that are happening in society. What this 0:06:54.516 --> 0:06:59.716 test is telling us is that in terms of mastering 0:06:59.836 --> 0:07:05.396 all sorts of subjects, some kids are doing a lot 0:07:05.436 --> 0:07:10.436 better than other kids. And it seems to me a question, well, 0:07:10.436 --> 0:07:14.036 why is that? How can we help the kids that 0:07:14.076 --> 0:07:18.316 are not doing so well do better? But can I 0:07:18.356 --> 0:07:22.756 try to answer Randy Kennedy with Randy Kennedy. So you've argued, 0:07:22.796 --> 0:07:25.556 and you argue this very explicitly in your book for Discrimination, 0:07:25.876 --> 0:07:30.036 that there's a shorthand answer for why we're getting this message, 0:07:30.036 --> 0:07:34.276 and that is the systematic history of race based discrimination 0:07:34.636 --> 0:07:39.516 that extended from slavery through segregation until very very recently. 0:07:40.076 --> 0:07:42.236 And I think you were born in nineteen fifty four, 0:07:42.236 --> 0:07:44.356 if I'm not mistaken, So that means that you were 0:07:44.356 --> 0:07:46.516 born in the year when segregation was made illegal. But 0:07:46.556 --> 0:07:49.436 it didn't end for decades efforts, and in some places 0:07:49.476 --> 0:07:52.676 in the United States schools are still de facto segregated, 0:07:52.716 --> 0:07:55.676 even if it's not according to law. And you also 0:07:55.796 --> 0:08:01.236 argued that given this systematic, ongoing structure of oppression, that 0:08:01.316 --> 0:08:07.676 we need to diversify elite institutions in response to this historical, 0:08:07.956 --> 0:08:12.796 demonstrable phenomenon that's ongoing. So why isn't that the answer 0:08:12.836 --> 0:08:16.836 the test. We're not stoning the test. We're acknowledging that 0:08:17.236 --> 0:08:21.436 the test is representing some systematic injustice, and we're saying, 0:08:21.756 --> 0:08:25.316 let's find some alternative mechanism. Call it discriminatory if you will, 0:08:25.356 --> 0:08:27.356 you call the discrimination, you didn't mind calling it that, 0:08:27.716 --> 0:08:32.396 in order to remedy those structures. It's not a remedy 0:08:32.516 --> 0:08:35.756 for those structures. It's a mistake to think that the 0:08:35.796 --> 0:08:41.436 affirmative action regime is the panacea for the problems that 0:08:41.476 --> 0:08:46.836 we're talking about. The affirmative action regime makes a small cut. 0:08:47.436 --> 0:08:50.956 It gives some benefit to those who are at the 0:08:51.076 --> 0:08:56.036 upper levels of the marginalized and the oppressed, but it 0:08:56.076 --> 0:08:59.196 doesn't do a whole lot more than that. And I've 0:08:59.196 --> 0:09:02.076 seen it. That's right. I mean, I am an affirmative 0:09:02.076 --> 0:09:08.276 action baby. It is too easy to have the affirmative 0:09:08.316 --> 0:09:13.116 action regime in place, get year after year after year 0:09:13.276 --> 0:09:19.276 you're ten percent, and then forget about it. I don't 0:09:19.316 --> 0:09:23.076 want that to happen. In fact, the problem with affirmative action, 0:09:23.076 --> 0:09:28.876 as far as i'm concerned it's far too conservative and intervention. 0:09:29.036 --> 0:09:35.396 We need something considerably more radical to deal with this 0:09:35.916 --> 0:09:41.436 still massive problem that we have of you know, structures 0:09:41.436 --> 0:09:46.116 of racial inequality that are baked in to our society. 0:09:46.476 --> 0:09:48.796 What do you have in mind? What's the radical transformation 0:09:48.836 --> 0:09:50.476 that you would you would imagine because you're what you're 0:09:50.476 --> 0:09:54.636 talking about is abandoning w. Du Bois's talented ten rationale 0:09:55.196 --> 0:09:59.556 for creating an African American elite on the theory that 0:09:59.556 --> 0:10:01.716 that would in the long run, contribute to what he 0:10:01.836 --> 0:10:04.476 still called the uplifting of the race. First of all, 0:10:04.676 --> 0:10:08.356 you know, one thing I've seen in the commentary about 0:10:08.476 --> 0:10:14.436 the schools, there was a time in the recent past 0:10:15.076 --> 0:10:20.156 where there were more black kids at these schools. That 0:10:20.236 --> 0:10:22.876 has fallen down, and some people speculate that one of 0:10:22.916 --> 0:10:25.116 the reasons why it has fallen down, the numbers have 0:10:25.196 --> 0:10:33.436 fallen is because of the dismantling of various special pipeline 0:10:33.556 --> 0:10:39.356 programs to try to you know, nourish and push the talented, 0:10:39.516 --> 0:10:43.476 you know, the talented tenth Listen, I'm a talent tenth person, 0:10:43.756 --> 0:10:48.476 a talent tenth man, a Duboisian. But again, that is 0:10:49.436 --> 0:10:52.276 that that's that's something I don't want to. That's why 0:10:52.836 --> 0:10:56.156 I don't want to get rid of that. But that 0:10:56.396 --> 0:11:03.156 is not going to change enough to make me satisfied. 0:11:03.556 --> 0:11:05.436 You asked me, well, what do you want to do? 0:11:06.036 --> 0:11:09.676 I'm not sure. I'm not I'm not a professional educator 0:11:09.756 --> 0:11:13.796 of this sort. I think though, that one thing that 0:11:13.836 --> 0:11:17.996 we need to do is not be satisfied with what 0:11:18.076 --> 0:11:23.276 we have and what we have had, namely this affirmative 0:11:23.276 --> 0:11:26.436 action regime. You know, for the past couple of decades, 0:11:26.636 --> 0:11:29.116 we need to think a new about things. Let me 0:11:29.156 --> 0:11:32.116 tell you something that I'm thinking a new about diversity. 0:11:32.956 --> 0:11:38.156 It has now become totally conventional, this mirror notion. You know, 0:11:38.196 --> 0:11:43.716 the schools don't look like New York City, the mirror idea, 0:11:43.876 --> 0:11:48.636 they'll look like America. Idea is okay if you are 0:11:48.916 --> 0:11:54.116 part of a group that is large enough to be 0:11:54.196 --> 0:11:56.916 able to claim a fairly big part of that pie. 0:11:57.636 --> 0:12:01.796 If you come from a small group, however, that mirroring 0:12:01.996 --> 0:12:07.036 idea doesn't look so good. What about the quote problem 0:12:07.276 --> 0:12:11.196 of overrepresentation, or to put it differently, is it the 0:12:11.276 --> 0:12:16.436 case that there are too many Asian Americans in the schools? Right? 0:12:16.596 --> 0:12:17.876 I mean, if you're going to get No one wants 0:12:17.876 --> 0:12:19.436 to say that. No one wants to say it, but 0:12:19.436 --> 0:12:21.556 it seems to me, although our employer or Harvard University 0:12:21.636 --> 0:12:26.116 is being sued on the theory that intentionally or otherwise, 0:12:26.596 --> 0:12:30.476 our admissions office is similarly treating Asian Americans as this 0:12:30.676 --> 0:12:33.636 as though they were overrepresented and therefore has been restricting 0:12:33.636 --> 0:12:35.796 the numbers. Now, to be clear, our employer denies it, 0:12:36.036 --> 0:12:38.236 you know, three ways till next Sunday. But that is 0:12:38.276 --> 0:12:40.476 the allegation in this say, that is the allegation. And 0:12:40.836 --> 0:12:46.516 I must say, for me, this issue has taken on 0:12:46.956 --> 0:12:49.956 more prominence than it has in the past. For me, 0:12:50.836 --> 0:12:54.916 you know, this looks like America. It seems to me 0:12:55.236 --> 0:12:59.076 is quite problematic. First of all, the United States is 0:12:59.156 --> 0:13:06.356 too complicated and diverse for this looks like America metaphor 0:13:07.516 --> 0:13:11.956 to actually have real purchase. So now we're really getting 0:13:11.956 --> 0:13:14.516 into the meat of it. So the language of looks 0:13:14.516 --> 0:13:18.116 like America is the language of the diversity rationale, which 0:13:18.476 --> 0:13:20.156 you know, as you know far better than I, the 0:13:20.236 --> 0:13:22.916 Supreme Court treats as the only, at least for the moment, 0:13:22.996 --> 0:13:26.476 constitutional rationale to justify affirmative action. And it's not just 0:13:26.516 --> 0:13:28.596 that you can't be in any institution of higher learning 0:13:28.596 --> 0:13:32.076 without getting a steady diet of the word diversity is 0:13:32.076 --> 0:13:35.516 our key value. We've got diversity reports, we have diversity deans, 0:13:35.516 --> 0:13:38.316 we have diversity officers. It infuses our whole way of 0:13:38.316 --> 0:13:41.316 doing things at a university like Harvard where we both teach. 0:13:41.756 --> 0:13:46.036 And I hear you questioning that orthodox, Yes, very much 0:13:46.636 --> 0:13:49.236 one of the virtues, of course, of the word diversity. 0:13:49.276 --> 0:13:52.596 Who the people behind the coining of it? You know, 0:13:52.756 --> 0:13:56.836 I think well of them. They were onto something. They 0:13:56.876 --> 0:14:01.916 wanted to change things. They wanted to redistribute power and 0:14:01.996 --> 0:14:07.196 opportunity downwards, as do I. And sometimes in order to 0:14:07.236 --> 0:14:13.516 do that, you actual onto an idea, a slogan that 0:14:14.076 --> 0:14:23.956 has good strategic opacity. It is a wonderfully ambiguous strategic work. 0:14:24.396 --> 0:14:29.996 What does diversity mean? And all of our schools, for 0:14:30.076 --> 0:14:35.516 various reasons, some political, some legal, stay within the ambiguity 0:14:35.836 --> 0:14:38.876 and really play that ambiguity. So let's play out why 0:14:38.916 --> 0:14:42.596 they do that. I agree strategic opacity is the key 0:14:42.756 --> 0:14:45.556 term here. In the first instance, it's that if they 0:14:45.676 --> 0:14:49.716 say we have a quota, then they lose. The Supreme 0:14:49.716 --> 0:14:51.836 Court strikes down it's illegal. They can't do it. So 0:14:51.876 --> 0:14:56.076 that's one reason. The second is no one wants to say, well, 0:14:56.316 --> 0:14:59.516 we want to use positive discrimination, which is what a 0:14:59.516 --> 0:15:01.396 lot of countries call it, and which you alluded to 0:15:01.396 --> 0:15:03.836 in the title of your book. And so no one 0:15:03.836 --> 0:15:05.236 wants to say that because no one wants to say 0:15:05.276 --> 0:15:08.996 we're discriminating, because discrimination sounds bad. And last, but Ali, 0:15:09.756 --> 0:15:11.676 no one wants to say that we're giving a leg 0:15:11.756 --> 0:15:15.276 up to anybody because it undercuts some underlying idea of 0:15:15.556 --> 0:15:19.476 fairness or merit whatever that exactly mean it, and it 0:15:19.516 --> 0:15:23.356 makes the people who were being helped feel bad, some 0:15:23.436 --> 0:15:25.316 of them anyway, They don't you know, No, I'm not 0:15:25.356 --> 0:15:27.956 getting a leg up. I mean I don't feel that 0:15:27.996 --> 0:15:30.436 way at all. I have gotten a leg up. Don't 0:15:30.476 --> 0:15:33.556 feel bad about it. You know, you get a leg 0:15:33.676 --> 0:15:37.036 up and you hope to vindicate yourself by doing good things. 0:15:37.556 --> 0:15:39.396 Seems to me that, you know, I don't. I don't 0:15:39.716 --> 0:15:42.876 think there's a bad thing about giving people a leg up. Well, 0:15:43.036 --> 0:15:45.716 it's also important to add in there that just about 0:15:45.756 --> 0:15:47.756 everyone walking around the NOD the university has had a 0:15:47.836 --> 0:15:50.356 leg up from somewhere, of course, And you know, I 0:15:50.356 --> 0:15:52.996 mean I certainly had a significant leg up. I mean, 0:15:52.996 --> 0:15:56.116 you know, I remember showing up in college and realizing 0:15:56.196 --> 0:15:58.676 that I knew things about professors, and you know, I 0:15:58.716 --> 0:16:00.196 knew what books are reading, I knew where to go, 0:16:00.276 --> 0:16:01.836 and not everybody knew those things, and that was a 0:16:01.956 --> 0:16:05.076 huge leg up. Ira katz Nelson. You know, when affirmative 0:16:05.076 --> 0:16:08.116 action was white. The fact of the matter is that 0:16:09.436 --> 0:16:14.436 white people, rich people, absolutely we have had legs up. 0:16:14.756 --> 0:16:19.756 It's it just becomes obscured. We don't call it affirmative action. 0:16:19.836 --> 0:16:22.556 We don't call it giving a leg up. They have 0:16:22.676 --> 0:16:27.596 all sorts of privileges, but we view it as you know, 0:16:27.716 --> 0:16:31.476 just sort of natural as right. One of the real 0:16:31.516 --> 0:16:37.756 big difficulties I think that we confront is we really 0:16:37.796 --> 0:16:43.996 don't know what we're seeking to accomplish. You know, we 0:16:43.996 --> 0:16:49.516 will use these terms racial justice, racial fairness, racially quality. 0:16:50.876 --> 0:16:54.996 Well what is that exactly? But so let me push 0:16:54.996 --> 0:16:57.276 back on that. Don't we all know that if we 0:16:57.356 --> 0:17:01.396 had a society that distributed opportunity in the form of 0:17:01.596 --> 0:17:07.396 education fairly, that what we would then see is results 0:17:07.436 --> 0:17:11.436 of tests like this one, where the excellence of performing 0:17:11.436 --> 0:17:12.756 well on this test. And I'm not saying that's the 0:17:12.836 --> 0:17:14.996 only excellence there is in life, but where the specific 0:17:14.996 --> 0:17:17.796 excellence are performing well on this test would be demonstrated 0:17:17.836 --> 0:17:21.796 to be roughly equal across every part of the population. 0:17:22.156 --> 0:17:24.916 And that's what racial equality would look like. An environment 0:17:24.956 --> 0:17:28.716 and where in which we had accounted for and repaired 0:17:28.876 --> 0:17:33.076 the legacy of discrimination so that every candidate really genuinely 0:17:33.236 --> 0:17:35.316 was on a level playing field. Isn't that the desert 0:17:35.316 --> 0:17:38.316 are on for everybody? I'm not, first of all, no, 0:17:38.356 --> 0:17:41.436 I do not think so, okay, tell me. I think 0:17:41.436 --> 0:17:45.396 that there is a real debate in our society about 0:17:45.436 --> 0:17:48.356 what we want. So you know, the majority of members 0:17:48.356 --> 0:17:51.036 of the Supreme Court would not embrace what you just said. 0:17:51.916 --> 0:17:55.676 I would embrace what you just said, or at least largely. 0:17:56.236 --> 0:17:58.676 But there are a lot of people who would say no, no, no, no, 0:17:58.676 --> 0:18:04.236 no no. What racial fairness means is they have a 0:18:04.316 --> 0:18:10.676 procedural idea. Racial fairness means that you don't purposely discriminate 0:18:10.756 --> 0:18:17.196 against people. And if you're not purposely discriminating against people, hey, fairness. 0:18:17.396 --> 0:18:19.956 But if we both agree, that's not really fair, right, 0:18:20.796 --> 0:18:23.596 I mean true, I mean that's that's not defensible. I 0:18:23.636 --> 0:18:26.716 think you can only defend procedural fairness if you first 0:18:27.116 --> 0:18:29.836 raised everybody to a level playing field. Otherwise it's genuinely 0:18:29.836 --> 0:18:31.516 not fair. So I take it what we're arguing about 0:18:31.636 --> 0:18:34.916 is okay, given that we haven't done that, we should 0:18:34.916 --> 0:18:38.036 We both agree we should do that. We haven't done that. Now, 0:18:38.076 --> 0:18:41.436 what I mean, you know, my my, my opening gambit 0:18:41.636 --> 0:18:49.596 is we've had an affirmative action regime in place for 0:18:49.916 --> 0:18:59.196 a couple of decades. Man. That regime is in my view, inadequate, unsatisfactory. 0:18:59.236 --> 0:19:04.156 It has aspects to it that are real problems. I 0:19:04.276 --> 0:19:08.836 mentioned one before, the looks like America rationale another one. 0:19:09.156 --> 0:19:12.996 It's right, there is the whole problem of double speak. 0:19:13.636 --> 0:19:15.236 You know. The fact of the matter is we can't 0:19:15.276 --> 0:19:19.636 even partly because of the law, in particular the Supreme 0:19:19.636 --> 0:19:23.676 Court of the United States, people don't even speak frankly 0:19:23.916 --> 0:19:28.036 about what's going on. And so, you know, the diversity rationale, 0:19:28.436 --> 0:19:33.156 we don't even the universities can't even talk in terms 0:19:33.276 --> 0:19:38.716 of distributive justice or reparatory justice. The very man you 0:19:38.756 --> 0:19:44.156 say that losing court exactly. So people have glommed on 0:19:44.716 --> 0:19:51.076 to diversity as a pedagogical theory. Everybody knows that that's 0:19:51.076 --> 0:19:55.636 not really what's animating it. But but we're trapped, we're 0:19:55.756 --> 0:19:58.436 trapped in double speak. And I guess one of the 0:19:58.516 --> 0:20:03.956 things that is, you know, impelling me at this moment 0:20:04.196 --> 0:20:07.436 is I feel impatient with the double speak. I feel 0:20:07.476 --> 0:20:12.116 impatient with you know now decades long regime. I want 0:20:12.156 --> 0:20:15.316 something better for goodness sakes. So here's my question. And 0:20:15.916 --> 0:20:17.796 in some sense this is the thing that motivated me 0:20:17.876 --> 0:20:19.956 most to want to talk to you about this. It's 0:20:19.996 --> 0:20:24.916 twenty nineteen, but in twenty thirteen you spent your time 0:20:24.956 --> 0:20:27.756 and your effort, and your concentration and your focus in 0:20:27.796 --> 0:20:32.676 writing a whole book defending the traditional conception of affirmative action. 0:20:32.716 --> 0:20:37.316 Now I'm wondering what has changed in the last six 0:20:37.476 --> 0:20:41.476 years that's pushing the evolution of your thought on this. 0:20:41.636 --> 0:20:43.756 I have a few candidate ideas, but first I want to, 0:20:43.836 --> 0:20:46.076 you know, get it straight from the horse's mouth. What 0:20:46.116 --> 0:20:51.076 do you think is causing your views to change? I 0:20:51.116 --> 0:21:01.436 am increasingly unwilling to settle for the double talk at school, 0:21:01.836 --> 0:21:05.356 and you've been around me. I say affirmative action. By 0:21:05.396 --> 0:21:08.996 the way, even that even that people don't say affirmative 0:21:09.356 --> 0:21:14.756 that phrase is gone. I say affirmative action. I say, 0:21:15.356 --> 0:21:18.676 why am I willing to countenance putting a thumb on 0:21:18.716 --> 0:21:25.316 the scale to help out certain people. You know, some 0:21:25.356 --> 0:21:28.556 people say, well, that's reverse discrimination, that you're putting a 0:21:28.596 --> 0:21:31.036 thumb on the scale to help certain people. I have 0:21:31.116 --> 0:21:34.556 a justification for that. Yeah, I'm not embarrassed by it, 0:21:35.196 --> 0:21:42.196 but I think it should be stated straight forwardly. So 0:21:42.236 --> 0:21:45.316 some of it is frustration growing frustration. Yes, So I 0:21:45.356 --> 0:21:47.556 was thinking in a big world of what's happened between 0:21:47.676 --> 0:21:50.036 you know, say twenty twelve when you were working on 0:21:50.036 --> 0:21:51.916 the book and then twenty thirteen when it came out. 0:21:51.956 --> 0:21:54.316 And now one thing I thought of immediately was we 0:21:54.316 --> 0:21:57.156 were eight years in office. To take the title of 0:21:57.156 --> 0:22:00.716 tany easy Coats's book, Obama was president during that period 0:22:00.716 --> 0:22:05.356 of time. There wasn't fundamental structural change with respect to 0:22:05.716 --> 0:22:08.596 the social position or economication of African Americans. And so 0:22:08.636 --> 0:22:11.036 I thought to myself, well, here in Barack Obama we 0:22:11.116 --> 0:22:14.396 have the ultimate manifestation of the talented tenth. So if 0:22:14.436 --> 0:22:17.316 there is a justification for the talented tenth theory, he 0:22:17.556 --> 0:22:20.636 was it. Do you feel frustration connected to the thought 0:22:20.676 --> 0:22:23.116 that that didn't seem to pan out at the broader 0:22:23.116 --> 0:22:26.676 scale of change. No, I don't know that. That's not it. 0:22:26.756 --> 0:22:31.476 That is not part of my thinking. I defend affirmative action. 0:22:31.556 --> 0:22:35.716 I think in fact that over the course of my life, 0:22:36.476 --> 0:22:40.276 affirmative action is one of the things about which America 0:22:40.356 --> 0:22:43.956 should be most proud. The problem is that it hasn't 0:22:43.996 --> 0:22:47.316 been pushed enough, and hadn't been pushed downward enough. It's 0:22:47.356 --> 0:22:51.516 not broad enough, it's not comprehensive enough. But if all 0:22:51.556 --> 0:22:55.196 that is true, why don't we look at using a 0:22:55.276 --> 0:22:58.156 single test for admission to some institutions and say, let's 0:22:58.196 --> 0:23:01.596 be radical. Let's do something radically different that will involve 0:23:01.596 --> 0:23:03.716 a thumb on the scale, so you could give more 0:23:03.756 --> 0:23:06.476 points on the test to people from disadvantage backgrounds. That 0:23:06.516 --> 0:23:10.596 would be overt it wouldn't be fake, and it might 0:23:10.636 --> 0:23:13.276 make it. It It would make a difference statistically, it might, 0:23:13.596 --> 0:23:18.036 And I'm not horror struck by that. One difficulty with 0:23:18.156 --> 0:23:29.916 that is the problem of obscuring continuing weaknesses at my school, 0:23:30.796 --> 0:23:36.476 my school, your school. I've been in you know, symposia, 0:23:36.676 --> 0:23:40.516 been in sessions where people talk about affirmative action, and 0:23:40.556 --> 0:23:44.996 I've heard students who, by the way, we're beneficiaries of 0:23:45.036 --> 0:23:50.276 affirmative action, get really haughty and indignant and and in fact, 0:23:50.316 --> 0:23:53.876 I'm sure you've seen this where students who you know 0:23:53.956 --> 0:23:59.036 have been benefited deny and get even angry if somebody 0:23:59.196 --> 0:24:03.036 suggests that they were a beneficiary. In fact, that is 0:24:03.116 --> 0:24:06.876 part of the lore, the racial lore of elite institutions, 0:24:07.356 --> 0:24:10.676 where you know you'll have student, a Latino student, a 0:24:10.716 --> 0:24:14.036 black student. Well, you know, well, why are you mad? 0:24:14.196 --> 0:24:17.276 I'm mad because I was talking with my roommate, and 0:24:17.316 --> 0:24:20.516 my roommate suggested that, you know, the reason I'm here 0:24:20.876 --> 0:24:23.916 is because of affirmative action. You know, how dare he 0:24:24.076 --> 0:24:27.676 say that? And you don't think that student has a 0:24:27.716 --> 0:24:29.796 point to say that that. It's a kind of assault 0:24:29.836 --> 0:24:32.836 on the person's equality or sense of being there to 0:24:32.836 --> 0:24:36.396 say that. No, no, no, you know no, I think that. 0:24:36.516 --> 0:24:38.596 I think what's happened is it might also might not 0:24:38.596 --> 0:24:40.476 be true in any given instance. It might be true, 0:24:40.476 --> 0:24:42.356 it might not be it might not be true. And 0:24:42.796 --> 0:24:47.796 that's right. And I've seen any number of white people 0:24:48.756 --> 0:24:54.356 who failed to get what they wanted and their way 0:24:54.796 --> 0:25:00.316 of sort of you know, accommodating failure. Oh I would 0:25:00.316 --> 0:25:03.836 have gotten it, but you know that black one over 0:25:03.876 --> 0:25:06.916 there got it because of affirmative action. Now you think 0:25:06.916 --> 0:25:09.356 get an affirmative action, He just beat you out. Yeah, 0:25:10.076 --> 0:25:12.316 but let's go back to what I was talking about, 0:25:12.916 --> 0:25:16.756 because there is the student who takes offense. What that shows, 0:25:16.756 --> 0:25:19.756 and it's it's one of the you know, I've defended 0:25:19.756 --> 0:25:23.756 affirmative action. Does affirmative action have certain costs? However, Yes, 0:25:23.916 --> 0:25:25.836 it does have certain costs, and we've got to look 0:25:25.876 --> 0:25:28.356 at those costs, and this is one of them. There 0:25:28.556 --> 0:25:34.876 is a certain sort of impulse for the nile. You know, No, 0:25:35.716 --> 0:25:39.836 I'm no, I'm not behind this kid to the left 0:25:39.836 --> 0:25:45.676 of me, whose parents, you know, went to college, who 0:25:45.756 --> 0:25:50.076 went to private school, who had all the benefits. My 0:25:50.156 --> 0:25:53.476 parents didn't go to college. Let's say my parents did, 0:25:53.556 --> 0:25:57.716 but let's let's imagine somebody whose parents did not. I 0:25:57.756 --> 0:26:01.036 grew up in a house that didn't have books. I didn't, 0:26:01.036 --> 0:26:05.356 you know, I didn't. I was behind, behind behind. That 0:26:05.596 --> 0:26:09.356 kid on day one might very well be behind. But 0:26:09.436 --> 0:26:11.236 that's not a big deal, as far I would say 0:26:11.236 --> 0:26:14.556 to that kid, don't be ashamed that. It doesn't matter 0:26:14.596 --> 0:26:17.716 if you're behind one day one. What matters is what's 0:26:17.716 --> 0:26:22.596 happening on day three sixty five. You're not going to 0:26:23.876 --> 0:26:27.916 push yourself to catch up if you don't know that 0:26:27.956 --> 0:26:32.716 you're behind. Eighteen sixty five is not that long ago. Yeah, 0:26:33.596 --> 0:26:36.556 I knew my grandmother for most of my life. My 0:26:36.716 --> 0:26:43.316 grandmother's parents were slaves. For God's sakes, in eighteen sixty five, 0:26:43.356 --> 0:26:47.076