1 00:00:00,080 --> 00:00:04,160 Speaker 1: Is affirmative action constitutional? The US Supreme Court is considering 2 00:00:04,200 --> 00:00:07,560 Speaker 1: two cases right now on affirmative action students for Fair 3 00:00:07,680 --> 00:00:12,680 Speaker 1: and Missions against Harvard University and also against the University 4 00:00:12,720 --> 00:00:16,640 Speaker 1: of North Carolina. We'll get into the details of those cases, 5 00:00:17,200 --> 00:00:21,320 Speaker 1: what they mean, what ramifications they would have, and also 6 00:00:21,560 --> 00:00:26,040 Speaker 1: is affirmative action constitutional. We'll have that conversation with Ken Tashi. 7 00:00:26,760 --> 00:00:29,680 Speaker 1: He's worked in higher education as a former general counsel 8 00:00:29,760 --> 00:00:34,479 Speaker 1: for over twenty years for fifteen different higher education institutions, 9 00:00:34,560 --> 00:00:37,680 Speaker 1: so he's really seen this front and center behind the 10 00:00:37,760 --> 00:00:40,640 Speaker 1: scenes as well. He is also a Campus Reform Higher 11 00:00:40,760 --> 00:00:44,199 Speaker 1: Education fellow as well, so we'll get into the merits 12 00:00:44,560 --> 00:00:47,400 Speaker 1: of these cases, what you need to know, and also 13 00:00:47,760 --> 00:00:51,319 Speaker 1: does this have a bigger impact outside higher education? All 14 00:00:51,360 --> 00:00:58,480 Speaker 1: of that and more with Ken Tashi. Stay with us. So, 15 00:00:58,640 --> 00:01:01,840 Speaker 1: Ken Tashi, I appreciate you coming on the show to 16 00:01:01,960 --> 00:01:04,120 Speaker 1: join us on this. This hasn't gotten a ton of 17 00:01:04,160 --> 00:01:07,800 Speaker 1: coverage on the Supreme Court cases on affirmative action, not as. 18 00:01:07,720 --> 00:01:10,800 Speaker 2: Much as I thought they would have garnered at this point. 19 00:01:10,840 --> 00:01:13,600 Speaker 2: But my guess is when the Court issues its decision 20 00:01:13,880 --> 00:01:17,160 Speaker 2: in the next coming hours or days, that it will 21 00:01:17,160 --> 00:01:18,640 Speaker 2: take on some attention for sure. 22 00:01:18,959 --> 00:01:22,119 Speaker 1: So there's two cases that the Supreme Court is considering, 23 00:01:22,240 --> 00:01:25,280 Speaker 1: students for ferret mission versus Harvard and students for ferreit 24 00:01:25,360 --> 00:01:28,200 Speaker 1: mission versus University of North Carolina. 25 00:01:28,319 --> 00:01:30,200 Speaker 3: What should people know about these cases? 26 00:01:30,400 --> 00:01:32,039 Speaker 2: First of all, there are two cases, as you just 27 00:01:32,120 --> 00:01:35,800 Speaker 2: pointed out. One involves the oldest public institution in the country, 28 00:01:36,040 --> 00:01:38,480 Speaker 2: University of North Carolina, and the other involves the oldest 29 00:01:38,480 --> 00:01:42,680 Speaker 2: private institution in the country, Harvard University or Harvard College. 30 00:01:43,040 --> 00:01:46,160 Speaker 2: And what the students for faird Missions is claiming in 31 00:01:46,240 --> 00:01:51,400 Speaker 2: both cases is that the institutions have used race to 32 00:01:51,600 --> 00:01:55,320 Speaker 2: separate and classify students, all for the purpose of achieving 33 00:01:55,720 --> 00:01:59,160 Speaker 2: a racially proportionate student body, which really mounts to nothing 34 00:01:59,160 --> 00:02:02,680 Speaker 2: more than racial bandancing or the use of racial quotas, 35 00:02:02,760 --> 00:02:06,080 Speaker 2: all of which is and has been illegal under federal 36 00:02:06,160 --> 00:02:11,560 Speaker 2: law for some time. And in the cases, the plainness 37 00:02:11,639 --> 00:02:16,760 Speaker 2: in the case provide different evidence against each institution, but 38 00:02:17,000 --> 00:02:21,400 Speaker 2: at the end, it all resonates the same that race 39 00:02:21,520 --> 00:02:25,560 Speaker 2: is being used no longer as just a factor in admissions, 40 00:02:26,360 --> 00:02:30,400 Speaker 2: but in many cases it's become the factor, a predominant 41 00:02:30,440 --> 00:02:34,200 Speaker 2: or determining factor, and that was never contemplated by the 42 00:02:34,280 --> 00:02:37,480 Speaker 2: court when twenty years ago it authorized and permitted the 43 00:02:37,600 --> 00:02:40,440 Speaker 2: use of race as a factor in college admissions in 44 00:02:40,560 --> 00:02:44,840 Speaker 2: order to create student body diversity. So that's really that's 45 00:02:44,880 --> 00:02:48,520 Speaker 2: sort of the nutshell of the cases, or in a nutshell, 46 00:02:48,880 --> 00:02:51,440 Speaker 2: and it'll be interesting to see how the court analyzes 47 00:02:52,120 --> 00:02:56,280 Speaker 2: both the evidence has been presented against both University North 48 00:02:56,280 --> 00:02:59,840 Speaker 2: Carolina Carolina and Harvard, and how it weighs that evidence 49 00:03:00,160 --> 00:03:02,720 Speaker 2: with over twenty years of or approximately twenty years of 50 00:03:02,760 --> 00:03:05,960 Speaker 2: precedent on this issue. So it's going to be interesting 51 00:03:06,000 --> 00:03:07,440 Speaker 2: determination of both cases. 52 00:03:07,520 --> 00:03:10,600 Speaker 1: So I've not heard of Students for Fair Admissions, you know, 53 00:03:10,760 --> 00:03:12,760 Speaker 1: what is that group? And then how did this all 54 00:03:12,800 --> 00:03:13,440 Speaker 1: get started? 55 00:03:13,720 --> 00:03:19,200 Speaker 2: It's an organization that has focused primarily on the issue 56 00:03:19,240 --> 00:03:23,919 Speaker 2: of race in higher education. It started this litigation, I believe, 57 00:03:23,960 --> 00:03:29,720 Speaker 2: back in twenty fourteen, which is I think incredibly interesting 58 00:03:29,760 --> 00:03:32,320 Speaker 2: that the process has taken this long to get to 59 00:03:32,360 --> 00:03:34,440 Speaker 2: the level it's at. It was at the district court 60 00:03:34,520 --> 00:03:37,760 Speaker 2: level and the court sided with the two universities. It 61 00:03:37,800 --> 00:03:40,520 Speaker 2: was at the appeals court level and similarly it sided 62 00:03:40,560 --> 00:03:42,880 Speaker 2: with the two universities, and now it's made its way 63 00:03:42,920 --> 00:03:44,960 Speaker 2: up to the appeals court or excuse me, the Supreme 64 00:03:44,960 --> 00:03:48,440 Speaker 2: Court on this matter. And I think one of the 65 00:03:48,520 --> 00:03:52,160 Speaker 2: nuances of a student for fair missions allegations in this 66 00:03:52,240 --> 00:03:56,800 Speaker 2: case is that it's not your traditional discrimination case. It's 67 00:03:56,840 --> 00:03:59,680 Speaker 2: being claimed by say, white students, who are alleging that 68 00:03:59,720 --> 00:04:03,560 Speaker 2: they subject to reverse discrimination in favor of black students. 69 00:04:03,920 --> 00:04:09,440 Speaker 2: What you've got here is the identified population that's being 70 00:04:09,480 --> 00:04:15,040 Speaker 2: discriminated against is from an underrepresented class, Asian students, and 71 00:04:15,400 --> 00:04:20,200 Speaker 2: they are asserting that they're losing out on emission opportunities 72 00:04:20,560 --> 00:04:22,800 Speaker 2: to white students. So it's a little bit of a 73 00:04:22,839 --> 00:04:26,159 Speaker 2: twist on the traditional manner and method in which these 74 00:04:26,200 --> 00:04:32,320 Speaker 2: cases have been brought forward, and so that deviation from 75 00:04:32,360 --> 00:04:36,360 Speaker 2: the standard may provide a little bit different analysis by 76 00:04:36,360 --> 00:04:39,680 Speaker 2: the Court in its ultimate determination as to whether the 77 00:04:39,800 --> 00:04:42,520 Speaker 2: race has been used in an illegal fashion in these cases. 78 00:04:42,720 --> 00:04:45,440 Speaker 1: Does that kind of, I guess, speak to the larger 79 00:04:45,520 --> 00:04:49,640 Speaker 1: climate of our society that it might get a fairer 80 00:04:49,680 --> 00:04:52,960 Speaker 1: hearing or more fair hearing because it's Asian students versus 81 00:04:53,040 --> 00:04:56,240 Speaker 1: white students as opposed to you know, maybe you know the. 82 00:04:56,279 --> 00:04:58,320 Speaker 3: Argument being African Americans or something. 83 00:04:58,640 --> 00:05:02,039 Speaker 2: Yeah, I think it may you know that, you know, again, 84 00:05:02,080 --> 00:05:05,160 Speaker 2: traditionally the arguments have been made by white students, who 85 00:05:07,320 --> 00:05:11,680 Speaker 2: generally can't present a record of past discrimination. There would 86 00:05:11,720 --> 00:05:15,480 Speaker 2: not generally not be considered part of an underrepresented classification 87 00:05:15,600 --> 00:05:18,800 Speaker 2: for purposes of race. But Asian students clearly fit within 88 00:05:19,560 --> 00:05:24,960 Speaker 2: an underrepresented classification have a history of being subject to 89 00:05:25,040 --> 00:05:31,839 Speaker 2: racial discrimination. So it's a different approach on a common issue. 90 00:05:31,839 --> 00:05:34,920 Speaker 2: But it's a unique approach that students for fair emissions 91 00:05:34,920 --> 00:05:39,880 Speaker 2: have taken in light of I think historically not being 92 00:05:39,920 --> 00:05:44,039 Speaker 2: successful under the traditional model of a white student claiming 93 00:05:44,120 --> 00:05:45,120 Speaker 2: race discrimination. 94 00:05:45,360 --> 00:05:48,080 Speaker 1: Well, take a quick commercial break more on these affirmative 95 00:05:48,120 --> 00:05:54,440 Speaker 1: action cases. Why do you think it's taken so long 96 00:05:54,560 --> 00:05:57,279 Speaker 1: to reach the Supreme Court? You had mentioned I believe 97 00:05:57,320 --> 00:06:00,440 Speaker 1: twenty fifteen when this all got kicked off, and that 98 00:06:00,440 --> 00:06:02,880 Speaker 1: that you know has taken quite some time. So why 99 00:06:02,880 --> 00:06:04,640 Speaker 1: do you think does that speak to anything? Does that 100 00:06:04,760 --> 00:06:05,359 Speaker 1: mean anything? 101 00:06:05,720 --> 00:06:10,720 Speaker 2: It speaks to you know the old comment about litigation 102 00:06:10,880 --> 00:06:13,240 Speaker 2: work that it's all about hurry up and wait, hurry 103 00:06:13,320 --> 00:06:15,960 Speaker 2: up and wait. And I just think this is this 104 00:06:16,000 --> 00:06:20,120 Speaker 2: process reflects that taking a case from from a US 105 00:06:20,200 --> 00:06:24,200 Speaker 2: district court and then appealing that case to a US 106 00:06:24,600 --> 00:06:28,799 Speaker 2: appeals court and then waiting for the US Supreme Court 107 00:06:28,839 --> 00:06:32,920 Speaker 2: to actually vote to accept your appeal is a process. 108 00:06:33,000 --> 00:06:36,320 Speaker 2: It's a very long process, and that's why many of 109 00:06:36,320 --> 00:06:40,320 Speaker 2: these cases do not reach ultimately the Supreme Court. They're 110 00:06:40,400 --> 00:06:45,080 Speaker 2: usually resolve beforehand, settled beforehand, or disposed of in some 111 00:06:45,200 --> 00:06:48,920 Speaker 2: other manner. Just again, because the amount of time that 112 00:06:48,960 --> 00:06:51,719 Speaker 2: it takes for these cases to work its way through 113 00:06:51,760 --> 00:06:54,359 Speaker 2: our through our federal judiciary, is. 114 00:06:54,360 --> 00:06:57,040 Speaker 3: It affirmative action on its face racist? 115 00:06:57,440 --> 00:07:00,320 Speaker 1: I mean, you know, one, the implication is that certain 116 00:07:00,360 --> 00:07:02,640 Speaker 1: groups can't get in on its own merit, so they 117 00:07:02,640 --> 00:07:05,200 Speaker 1: have to be prioritized. And then secondly, it creates a 118 00:07:05,279 --> 00:07:06,960 Speaker 1: hierarchy of race as well. 119 00:07:07,279 --> 00:07:11,840 Speaker 2: Sometimes the terminology is difficult to interpret, but the way 120 00:07:11,880 --> 00:07:14,160 Speaker 2: I've always viewed this is that and I think what's 121 00:07:14,240 --> 00:07:16,760 Speaker 2: an issue in these two cases, and what's being challenged 122 00:07:17,320 --> 00:07:20,760 Speaker 2: is the use of race, specifically to separate and classify 123 00:07:20,800 --> 00:07:27,240 Speaker 2: individuals to achieve racial proportionality in higher education. And while 124 00:07:27,240 --> 00:07:30,560 Speaker 2: that may sound like a laudable goal, it cannot be 125 00:07:30,600 --> 00:07:34,200 Speaker 2: accomplished through the use of race as a primary or 126 00:07:34,200 --> 00:07:39,480 Speaker 2: determining factor when seeking to achieve racial diversity on campus. 127 00:07:39,680 --> 00:07:43,040 Speaker 2: There may be a whole lot of reasons why racial 128 00:07:43,080 --> 00:07:46,760 Speaker 2: diversity is important on campus as just as there are 129 00:07:46,840 --> 00:07:49,200 Speaker 2: a lot of good reasons why other diversity is important, 130 00:07:49,200 --> 00:07:55,040 Speaker 2: whether it be socioeconomic or geographic, or experiential or ideological. 131 00:07:55,840 --> 00:07:58,320 Speaker 2: But it's how you get there is the real question. 132 00:07:59,800 --> 00:08:02,240 Speaker 2: That's where I think the impetus of this challenge, the 133 00:08:02,280 --> 00:08:07,040 Speaker 2: focus of this challenge lies. It's not on specifically challenging 134 00:08:07,120 --> 00:08:10,840 Speaker 2: diversity and higher ed it's how they're getting there. And 135 00:08:10,880 --> 00:08:14,680 Speaker 2: the argument primarily is that race is being used in 136 00:08:14,720 --> 00:08:18,920 Speaker 2: a much broader manner than it was ever contemplated, and 137 00:08:19,600 --> 00:08:23,160 Speaker 2: that I think is what makes these the procedures used 138 00:08:23,160 --> 00:08:25,640 Speaker 2: at Harvard and University of North Carolina and virtually at 139 00:08:25,640 --> 00:08:30,160 Speaker 2: every other public and private institution in the country illegal, 140 00:08:30,200 --> 00:08:33,360 Speaker 2: given the circumstances and the parameters that were established by 141 00:08:33,360 --> 00:08:36,439 Speaker 2: the Court back in two thousand and three. When it's 142 00:08:36,440 --> 00:08:39,080 Speaker 2: set the foundation for the use of race as a 143 00:08:39,080 --> 00:08:42,720 Speaker 2: criteria in admissions, I mean, is it that is what's 144 00:08:42,800 --> 00:08:45,440 Speaker 2: being argued by students for fair admissions. And I think 145 00:08:46,200 --> 00:08:50,280 Speaker 2: the statistics bear that out, that it's become more than 146 00:08:50,360 --> 00:08:53,200 Speaker 2: just a factor and admission, you know. And part of 147 00:08:53,200 --> 00:08:56,640 Speaker 2: this too is if it is only a factor and admission, 148 00:08:56,679 --> 00:08:59,240 Speaker 2: which is what the court limited to twenty years ago, 149 00:09:00,320 --> 00:09:02,560 Speaker 2: and in the most recent oil arguments, I think the 150 00:09:02,600 --> 00:09:05,880 Speaker 2: court acknowledged that there was thirty or forty other factors 151 00:09:05,920 --> 00:09:09,320 Speaker 2: in emissions that were being considered. It begs the question, 152 00:09:09,480 --> 00:09:11,800 Speaker 2: if you were to drop only one of those thirty 153 00:09:11,880 --> 00:09:15,000 Speaker 2: or forty other factors, how would that have the devastating 154 00:09:15,040 --> 00:09:19,600 Speaker 2: impact on the emission rates of underrepresented students. And the 155 00:09:19,679 --> 00:09:22,480 Speaker 2: answer only is is if it was given much greater 156 00:09:22,559 --> 00:09:24,760 Speaker 2: weight than it just being one factor, that it is 157 00:09:24,800 --> 00:09:27,520 Speaker 2: no longer just one factor. But in many cases it 158 00:09:27,600 --> 00:09:30,320 Speaker 2: is the factor, and it's become the thumb on the 159 00:09:30,360 --> 00:09:35,319 Speaker 2: scale for admission purposes, which was never the intent of 160 00:09:35,360 --> 00:09:37,920 Speaker 2: the Court twenty years ago when it authorized the use 161 00:09:38,080 --> 00:09:40,400 Speaker 2: of race. And you only have to go as far 162 00:09:40,920 --> 00:09:43,880 Speaker 2: as listening to the oral arguments and lead counsel for 163 00:09:44,000 --> 00:09:48,439 Speaker 2: Harvard who acknowledged that race is a determining factor in 164 00:09:48,559 --> 00:09:52,800 Speaker 2: admission at Harvard in some cases, which on its face 165 00:09:52,920 --> 00:09:55,480 Speaker 2: is an illegal use of race as a determining factor. 166 00:09:55,880 --> 00:10:00,320 Speaker 2: And so there is evidence that was presented to port 167 00:10:00,320 --> 00:10:01,280 Speaker 2: that position in. 168 00:10:01,240 --> 00:10:02,360 Speaker 3: The oral arguments. 169 00:10:02,360 --> 00:10:06,160 Speaker 1: Did Harvard say why it has become a determining factor 170 00:10:06,200 --> 00:10:06,560 Speaker 1: for them? 171 00:10:06,760 --> 00:10:08,439 Speaker 2: Well, I think you know, they try to qualify it 172 00:10:08,760 --> 00:10:12,319 Speaker 2: in a couple of different ways. One of the primary 173 00:10:12,400 --> 00:10:15,680 Speaker 2: arguments against Harvard had to do with the manner in 174 00:10:15,720 --> 00:10:20,800 Speaker 2: which it evaluates through its application process Asian Americans or 175 00:10:20,840 --> 00:10:25,640 Speaker 2: Asian applicants. And the argument being made against Harvard is 176 00:10:25,640 --> 00:10:28,680 Speaker 2: that it's not using race as a plus factor relative 177 00:10:28,720 --> 00:10:30,960 Speaker 2: to Asians again, which is from which are from an 178 00:10:31,000 --> 00:10:35,760 Speaker 2: underrepresented classification, but they're using it actually as a negative factor. 179 00:10:36,320 --> 00:10:39,040 Speaker 2: And the way this was born out during oral arguments 180 00:10:39,080 --> 00:10:41,840 Speaker 2: and through the evidence has been presented is that while 181 00:10:41,880 --> 00:10:47,439 Speaker 2: Asians score exceptionally high on the objective admission criteria things 182 00:10:47,520 --> 00:10:53,120 Speaker 2: like standardized testing acts, SATs, things of that nature, they 183 00:10:53,160 --> 00:10:58,679 Speaker 2: were scored woefully lower in this category known as personal traits, 184 00:10:58,720 --> 00:11:02,120 Speaker 2: which is a much more objective category where you would 185 00:11:02,160 --> 00:11:10,000 Speaker 2: assess a student on their leadership or kindness or courage backgrounds. 186 00:11:10,480 --> 00:11:15,280 Speaker 2: And they scored significantly lower under that classification, so much 187 00:11:15,320 --> 00:11:17,840 Speaker 2: so that it had a serious negative impact on their 188 00:11:17,880 --> 00:11:24,079 Speaker 2: admission rates against white students. And Harvard's argument is that, well, 189 00:11:24,080 --> 00:11:26,440 Speaker 2: that's really not a use of race, we're just looking 190 00:11:26,480 --> 00:11:31,600 Speaker 2: at personal traits, personal characteristics. But the argument in response 191 00:11:31,640 --> 00:11:34,680 Speaker 2: to that was that even if you're using a race 192 00:11:34,760 --> 00:11:38,320 Speaker 2: neutral factor, like say personal traits. If you're using that 193 00:11:38,800 --> 00:11:43,920 Speaker 2: to still ultimately try to achieve racial balance on your campus, 194 00:11:44,000 --> 00:11:47,000 Speaker 2: it's still racial balancing, and still the use of illegal 195 00:11:47,480 --> 00:11:51,280 Speaker 2: quotas and illegal under federal law. So that's sort of 196 00:11:51,320 --> 00:11:56,760 Speaker 2: the focus of the arguments against Harvard and their response 197 00:11:56,840 --> 00:11:57,800 Speaker 2: to those arguments. 198 00:11:58,080 --> 00:12:00,920 Speaker 1: So let's say the Supreme Court rules in favor of 199 00:12:01,040 --> 00:12:03,840 Speaker 1: students for ferret missions. You know, what does that mean 200 00:12:03,880 --> 00:12:07,280 Speaker 1: for the application process? To what degree does that change things? 201 00:12:07,400 --> 00:12:09,320 Speaker 2: Well, this is one area that we don't have to 202 00:12:09,360 --> 00:12:11,559 Speaker 2: do a great deal of speculation on because there were 203 00:12:11,600 --> 00:12:16,120 Speaker 2: currently eight states, some as far back as nineteen ninety six, 204 00:12:16,200 --> 00:12:18,800 Speaker 2: that have outlawed the use of race as a factor 205 00:12:19,720 --> 00:12:23,520 Speaker 2: in emissions in order to achieve student by diversity. Those include, 206 00:12:23,520 --> 00:12:30,160 Speaker 2: among others, California, Michigan, Oklahoma, I believe New Hampshire as well, Arizona, 207 00:12:30,440 --> 00:12:35,280 Speaker 2: and several others. But what's interesting is University of California 208 00:12:35,280 --> 00:12:39,760 Speaker 2: in twenty twenty one boasted that they had admitted their 209 00:12:39,800 --> 00:12:43,480 Speaker 2: most diverse first year class ever. In the same year, 210 00:12:43,520 --> 00:12:48,440 Speaker 2: twenty twenty one, Michigan announced that they had increased admission 211 00:12:48,520 --> 00:12:52,200 Speaker 2: rates for blacks and Hispanics over the years past. So 212 00:12:52,480 --> 00:12:55,719 Speaker 2: there's evidence out there that you can achieve racial diversity 213 00:12:55,760 --> 00:12:59,280 Speaker 2: on your campuses, even in those states where you've outlawed 214 00:12:59,320 --> 00:13:01,840 Speaker 2: the use of race as a factor in admissions. And 215 00:13:02,440 --> 00:13:05,760 Speaker 2: they get there through a number of other considerations that 216 00:13:05,840 --> 00:13:11,760 Speaker 2: do not include analyzing or evaluating a racial classification check 217 00:13:11,800 --> 00:13:15,120 Speaker 2: off on the common application. So they'll focus on things 218 00:13:15,200 --> 00:13:20,800 Speaker 2: like socioeconomic class, or geography, or experiential diversity, or even 219 00:13:20,880 --> 00:13:24,360 Speaker 2: you know, in some cases maybe ideological diversity, and frankly, 220 00:13:24,360 --> 00:13:26,520 Speaker 2: wouldn't it be nice to have a little bit more 221 00:13:26,520 --> 00:13:30,880 Speaker 2: ideological diversity on our college campuses these days? We don't 222 00:13:30,920 --> 00:13:32,960 Speaker 2: have much of it by way of faculty, we don't 223 00:13:32,960 --> 00:13:35,040 Speaker 2: have much of it by way of the student population, 224 00:13:35,960 --> 00:13:40,560 Speaker 2: and the result has been generating a class or a 225 00:13:40,600 --> 00:13:45,559 Speaker 2: generation of students that are frankly closed minded and fragile 226 00:13:46,280 --> 00:13:49,120 Speaker 2: that they can't be exposed to certain words or images 227 00:13:49,160 --> 00:13:52,400 Speaker 2: without running for a safe space to be protected from 228 00:13:52,440 --> 00:13:56,120 Speaker 2: the harmful effects of words. So ideological diversity might go 229 00:13:56,160 --> 00:13:59,920 Speaker 2: a long way in higher education. Other ways that they 230 00:14:00,120 --> 00:14:04,120 Speaker 2: get to racial diversity on campus is they can focus 231 00:14:04,240 --> 00:14:08,520 Speaker 2: on what's been referred to as the percentage plans. Texas 232 00:14:08,600 --> 00:14:12,880 Speaker 2: uses this in particular, where the University of Texas system 233 00:14:12,960 --> 00:14:18,000 Speaker 2: will automatically admit the top ten percent of every graduate 234 00:14:18,040 --> 00:14:21,040 Speaker 2: of every high school in their state. Now that doesn't 235 00:14:21,080 --> 00:14:22,720 Speaker 2: mean every one of those students is going to attend 236 00:14:22,720 --> 00:14:25,400 Speaker 2: the University of Texas, but what it does create is 237 00:14:25,440 --> 00:14:27,800 Speaker 2: a pathway and opportunity for students who may not have 238 00:14:28,040 --> 00:14:32,760 Speaker 2: understood that that opportunity previously existed. They may also enhance 239 00:14:32,880 --> 00:14:38,680 Speaker 2: their recruitment efforts in underrepresented communities and focus primarily, say 240 00:14:38,720 --> 00:14:42,240 Speaker 2: on first time college goers whose families have no experience 241 00:14:42,280 --> 00:14:46,200 Speaker 2: with filling out college applications or financial aid forms, and 242 00:14:46,560 --> 00:14:50,120 Speaker 2: to focus more heavily in those areas are recruitment could 243 00:14:50,120 --> 00:14:54,040 Speaker 2: indeed expand your base of students that have all types 244 00:14:54,200 --> 00:14:59,120 Speaker 2: of diversity that could contribute to the educational environment. And 245 00:14:59,200 --> 00:15:02,160 Speaker 2: one other area that colleges and universities could consider is 246 00:15:02,320 --> 00:15:08,560 Speaker 2: eliminating some of the admission preferences that frankly assist predominantly 247 00:15:08,600 --> 00:15:15,080 Speaker 2: white students. Those include an automatic admission for the children, faculty, 248 00:15:15,160 --> 00:15:19,560 Speaker 2: of staff, of alumni, of donors. So these are the 249 00:15:19,680 --> 00:15:24,640 Speaker 2: kinds of race neutral approaches, some or maybe all, that 250 00:15:24,680 --> 00:15:27,560 Speaker 2: have been utilized around the country by these eight states 251 00:15:28,000 --> 00:15:33,680 Speaker 2: that continue to both strong diversity rates while maintaining academic competitiveness. 252 00:15:33,720 --> 00:15:37,280 Speaker 2: So that's the route the country and the institutions are 253 00:15:37,280 --> 00:15:38,840 Speaker 2: going to have to take if in fact, the court 254 00:15:38,920 --> 00:15:41,240 Speaker 2: rules that race can no longer be considered a factor 255 00:15:41,240 --> 00:15:41,800 Speaker 2: in admissions. 256 00:15:42,000 --> 00:15:44,160 Speaker 1: But in order to reach a place where, you know, 257 00:15:44,240 --> 00:15:48,240 Speaker 1: these colleges and universities are truly seeking ideological university, I mean, 258 00:15:48,280 --> 00:15:51,640 Speaker 1: when there have to be bigger reforms within higher education 259 00:15:51,760 --> 00:15:53,600 Speaker 1: because the problem is a lot of the people at 260 00:15:53,640 --> 00:15:57,080 Speaker 1: the helm of power at these various universities and decision 261 00:15:57,080 --> 00:15:58,920 Speaker 1: making authority are liberal. 262 00:15:59,080 --> 00:16:01,960 Speaker 2: I agree with you a whole change of mindset. But 263 00:16:02,120 --> 00:16:05,720 Speaker 2: you know, but if in fact these institutions are serious 264 00:16:05,760 --> 00:16:09,200 Speaker 2: about diversity on campus, then they need to they need 265 00:16:09,200 --> 00:16:12,200 Speaker 2: to think long and hard about diversifying their campuses with 266 00:16:12,240 --> 00:16:14,280 Speaker 2: regard to ideology. I mean, if if one of the 267 00:16:14,280 --> 00:16:17,320 Speaker 2: goals is to expose students during their college career to 268 00:16:17,440 --> 00:16:20,560 Speaker 2: varied ideas and views and positions so that they can 269 00:16:20,600 --> 00:16:25,120 Speaker 2: be better members of society, better critical thinkers when when 270 00:16:25,120 --> 00:16:27,840 Speaker 2: they graduate them, then we're doing a woeful job at that. 271 00:16:28,160 --> 00:16:29,080 Speaker 2: And that's unfortunately. 272 00:16:29,200 --> 00:16:32,480 Speaker 1: Governor Desantas has made a bunch of higher education reforms here, 273 00:16:32,520 --> 00:16:35,520 Speaker 1: but you know it wasn't necessarily uh you know, these 274 00:16:35,560 --> 00:16:38,120 Speaker 1: schools doing it on their own emission, right, It's it's 275 00:16:38,200 --> 00:16:40,920 Speaker 1: you know, been you know, sort of a restructuring, if 276 00:16:40,920 --> 00:16:44,120 Speaker 1: you will, from driven by DeSantis, which is which is 277 00:16:44,160 --> 00:16:46,280 Speaker 1: you know, positive in my opinion. 278 00:16:46,000 --> 00:16:48,680 Speaker 2: Absolutely, and and and also too remembering there was a 279 00:16:48,880 --> 00:16:51,320 Speaker 2: there was an executive order I believe by President Trump 280 00:16:51,720 --> 00:16:56,240 Speaker 2: that laid out specific prohibitions against public institutions for engaging 281 00:16:56,360 --> 00:17:00,960 Speaker 2: in prohibitions on speech, because you see an escalation in 282 00:17:01,160 --> 00:17:06,960 Speaker 2: the unwillingness of institutions to allow certain speech on their campuses, 283 00:17:07,119 --> 00:17:15,159 Speaker 2: or their unwillingness to regulate the activities of students on 284 00:17:15,200 --> 00:17:20,119 Speaker 2: their campus who won't won't avail themselves to hearing or 285 00:17:20,160 --> 00:17:24,359 Speaker 2: being exposed to different views or positions. So there's a 286 00:17:24,359 --> 00:17:25,520 Speaker 2: long way to go in that area. 287 00:17:25,640 --> 00:17:28,520 Speaker 1: You've worked in higher education for a long time, a 288 00:17:28,560 --> 00:17:31,040 Speaker 1: former general counsel for I believe over twenty years for 289 00:17:31,200 --> 00:17:35,159 Speaker 1: fifteen different higher education institutions. How much have colleges and 290 00:17:35,280 --> 00:17:39,320 Speaker 1: universities changed since you started and all of this I go. 291 00:17:39,359 --> 00:17:42,600 Speaker 2: Back really to the mid nineteen eighties when I started 292 00:17:42,880 --> 00:17:47,520 Speaker 2: working as an administrator in higher education and then my 293 00:17:47,760 --> 00:17:51,480 Speaker 2: career sort of transition into the legal side. But I 294 00:17:51,760 --> 00:17:55,719 Speaker 2: know from my perspective what I've seen as a significant 295 00:17:55,800 --> 00:18:01,720 Speaker 2: change is an incredible amount of time and attention and 296 00:18:01,800 --> 00:18:09,399 Speaker 2: resources dedicated to under the umbrella of diversity, equity, and inclusion. 297 00:18:09,480 --> 00:18:12,159 Speaker 2: And you know, while some of those efforts are laudable, 298 00:18:13,400 --> 00:18:18,080 Speaker 2: it always takes away from those other core principles and 299 00:18:18,240 --> 00:18:23,439 Speaker 2: mission of an institution, which is to expand critical thinking, 300 00:18:23,640 --> 00:18:27,680 Speaker 2: which is to expand exposure to varied ideas and positions 301 00:18:27,800 --> 00:18:32,720 Speaker 2: and opinions. And to me, that has been one of 302 00:18:32,040 --> 00:18:34,840 Speaker 2: the one of the big dist services in higher ed 303 00:18:34,880 --> 00:18:37,000 Speaker 2: over the last twenty or thirty years. I can tell 304 00:18:37,000 --> 00:18:39,600 Speaker 2: you one of the areas that I've been most concerned with, 305 00:18:39,680 --> 00:18:42,359 Speaker 2: and I've written on this as well, is you know, 306 00:18:42,720 --> 00:18:48,280 Speaker 2: while institutions of higher education champion the idea of diversity 307 00:18:48,320 --> 00:18:52,360 Speaker 2: and talk about how racial diversity is an indispensable part 308 00:18:52,400 --> 00:18:55,960 Speaker 2: of the educational experience, in the educational environment, over the 309 00:18:56,000 --> 00:18:58,000 Speaker 2: better part of the last fifteen or twenty years, we've 310 00:18:58,040 --> 00:19:03,240 Speaker 2: seen an exponential increase on college campuses of supporting or 311 00:19:03,240 --> 00:19:08,440 Speaker 2: even promoting racial segregating practices. We've seen it through minority 312 00:19:08,480 --> 00:19:13,360 Speaker 2: only housing options, minority only student organizations, minority only student 313 00:19:13,800 --> 00:19:19,000 Speaker 2: orientation programs, minority only graduating programs. I believe Columbia hosts 314 00:19:19,000 --> 00:19:24,320 Speaker 2: six or seven commencement programs for any number of students 315 00:19:24,480 --> 00:19:29,040 Speaker 2: according to race, or ethnicity or gender. And again that 316 00:19:29,119 --> 00:19:34,480 Speaker 2: does nothing but separate and classifying individuals according to racial lines. 317 00:19:35,080 --> 00:19:40,560 Speaker 2: And it also overshadows which should otherwise be the commonality 318 00:19:40,600 --> 00:19:44,120 Speaker 2: of the shared student experience and ends up replacing that 319 00:19:44,200 --> 00:19:48,240 Speaker 2: with this sort of current day grievance mentality and this 320 00:19:48,320 --> 00:19:52,639 Speaker 2: perception that we have these irreconcilable differences in divisions based 321 00:19:52,680 --> 00:19:56,520 Speaker 2: on race. And that's really unfortunate in the society that 322 00:19:56,560 --> 00:19:59,960 Speaker 2: should be dedicated to color blindness. And I've seen an 323 00:20:00,040 --> 00:20:05,120 Speaker 2: an exponential increase in those kinds of activities or over 324 00:20:05,160 --> 00:20:07,160 Speaker 2: the better part of the last fifteen or twenty years. 325 00:20:07,320 --> 00:20:11,080 Speaker 1: See I view of diversity, equity, inclusion as racist, and 326 00:20:11,160 --> 00:20:13,240 Speaker 1: I think it's going to be the death of America 327 00:20:13,280 --> 00:20:16,720 Speaker 1: and the death of institutions because inevitably you're elevating people 328 00:20:16,760 --> 00:20:20,120 Speaker 1: who shouldn't be in those positions based off of merit right, 329 00:20:20,200 --> 00:20:23,960 Speaker 1: So it'll lead to the demise of whatever institution you 330 00:20:23,960 --> 00:20:27,320 Speaker 1: know it is. Do you think outside of college admissions. 331 00:20:27,560 --> 00:20:30,199 Speaker 1: Would these cases have an impact on the rest of 332 00:20:30,240 --> 00:20:32,720 Speaker 1: the country. I mean, because you know you just pointed out, 333 00:20:32,720 --> 00:20:35,440 Speaker 1: you know, basically the rest of the country. All these 334 00:20:35,440 --> 00:20:39,399 Speaker 1: institutions are obsessed with diversity equity inclusions. So does this 335 00:20:39,480 --> 00:20:43,120 Speaker 1: have a broader impact potentially elsewhere if. 336 00:20:42,960 --> 00:20:45,960 Speaker 2: The Court rules to eliminate race as a factor, which 337 00:20:46,000 --> 00:20:52,160 Speaker 2: which I believe is strongly likely. It's ironic that we've 338 00:20:52,160 --> 00:20:54,600 Speaker 2: only preserved the use of race in this very narrow 339 00:20:54,640 --> 00:20:57,880 Speaker 2: sliver category of college admissions. We don't allow the use 340 00:20:57,880 --> 00:21:00,800 Speaker 2: of race in hiring faculty or stanf F. We don't 341 00:21:00,840 --> 00:21:04,639 Speaker 2: allow the use of race when we're awarding scholarships or 342 00:21:04,680 --> 00:21:08,120 Speaker 2: financial aid. The Supreme Court's been clear that you cannot 343 00:21:08,200 --> 00:21:11,440 Speaker 2: use race as the basis for making elementary or secondary 344 00:21:11,520 --> 00:21:16,080 Speaker 2: education school assignments. So the question always remains, why are 345 00:21:16,080 --> 00:21:19,480 Speaker 2: we preserving in this one very narrow category when we've 346 00:21:19,480 --> 00:21:23,640 Speaker 2: pretty much removed it from from most other corners of society. 347 00:21:23,680 --> 00:21:27,880 Speaker 2: And I think that is going to be an important 348 00:21:27,920 --> 00:21:31,000 Speaker 2: consideration for the Court here. You know, we've historically had 349 00:21:31,119 --> 00:21:35,080 Speaker 2: issues of potential use of race in this manner. In 350 00:21:35,119 --> 00:21:38,520 Speaker 2: the employment setting. We have lots of federal and state 351 00:21:38,560 --> 00:21:43,480 Speaker 2: laws that prohibit race discrimination. You generally cannot use race 352 00:21:43,640 --> 00:21:47,919 Speaker 2: as a factor for making a hiring decision. But as 353 00:21:47,960 --> 00:21:51,600 Speaker 2: far as you know diversity, equity, inclusion and programming and 354 00:21:51,720 --> 00:21:55,000 Speaker 2: the philosophy it is, it has exponentially increased. I believe 355 00:21:55,040 --> 00:21:59,000 Speaker 2: beyond higher education. It's now in corporate America, as we 356 00:21:59,040 --> 00:22:02,720 Speaker 2: can see in most facets there. And I think it's 357 00:22:02,760 --> 00:22:07,720 Speaker 2: gotten away from the original intent, which was to create 358 00:22:07,760 --> 00:22:10,520 Speaker 2: an environment where students, all students, at least in a 359 00:22:10,560 --> 00:22:13,600 Speaker 2: higher ed create environmental all students would be exposed to 360 00:22:14,920 --> 00:22:23,320 Speaker 2: varied backgrounds, experiences, individuals ideas that would enhance the educational experience. 361 00:22:23,560 --> 00:22:28,520 Speaker 2: And I think we strayed very far from the original intent. 362 00:22:28,720 --> 00:22:30,480 Speaker 3: Can people find your work well? 363 00:22:30,520 --> 00:22:33,560 Speaker 2: You can finally work on Campus Reform dot org, which 364 00:22:33,600 --> 00:22:37,120 Speaker 2: is part of the Leadership Institute, and I serve there, 365 00:22:37,160 --> 00:22:41,240 Speaker 2: among others, as a higher education fellow, and the website 366 00:22:41,280 --> 00:22:45,879 Speaker 2: does a lot of work in and around higher education issues, 367 00:22:46,000 --> 00:22:49,080 Speaker 2: and that's been my primary focus for the better part 368 00:22:49,119 --> 00:22:49,960 Speaker 2: of thirty years. Now. 369 00:22:50,000 --> 00:22:51,560 Speaker 3: Is there anything else you'd like to leave us with 370 00:22:51,600 --> 00:22:52,240 Speaker 3: before we go? 371 00:22:52,520 --> 00:22:54,880 Speaker 2: You know, I just think that we have a record 372 00:22:55,720 --> 00:23:00,439 Speaker 2: currently that shows and demonstrates that you can indeed achieve 373 00:23:01,160 --> 00:23:04,080 Speaker 2: a racial diversity if that's the primary goal on college 374 00:23:04,080 --> 00:23:07,040 Speaker 2: campuses through the use of non racial factors. But I 375 00:23:07,080 --> 00:23:09,920 Speaker 2: would always emphasize I would do this with my clients, 376 00:23:09,960 --> 00:23:12,760 Speaker 2: and I'm doing it currently, that we need to really 377 00:23:12,760 --> 00:23:17,040 Speaker 2: broad the base when we talk about exposing and expanding 378 00:23:17,080 --> 00:23:19,320 Speaker 2: diversity on our college campuses. It's got to be a 379 00:23:19,400 --> 00:23:23,399 Speaker 2: much broader diversity brush than just focusing on race, because 380 00:23:23,440 --> 00:23:26,680 Speaker 2: one of the things that that does is it perpetuates 381 00:23:26,800 --> 00:23:31,840 Speaker 2: this ongoing racial stereotyping. It's the height of arrogance for 382 00:23:31,920 --> 00:23:35,439 Speaker 2: college administrators to sit in their office and believe that 383 00:23:35,480 --> 00:23:39,760 Speaker 2: they can predict the views and experiences of individuals based 384 00:23:39,800 --> 00:23:45,760 Speaker 2: solely and exclusively on their racial classification. We just really 385 00:23:45,800 --> 00:23:48,399 Speaker 2: need to get away from the belief that skin color 386 00:23:48,880 --> 00:23:51,639 Speaker 2: is a predictor or a proxy for life experience. And 387 00:23:53,600 --> 00:23:55,800 Speaker 2: until we get there, we're going to continue to struggle 388 00:23:55,800 --> 00:23:58,280 Speaker 2: with the use of race in this context. And I 389 00:23:58,760 --> 00:24:01,760 Speaker 2: would leave you with the what I thought to be 390 00:24:01,800 --> 00:24:05,080 Speaker 2: a very instructive comment by Justice Roberts several years ago 391 00:24:05,160 --> 00:24:08,600 Speaker 2: in the case involving race, where he commented that the 392 00:24:08,640 --> 00:24:11,600 Speaker 2: way to end discrimination based on race is to stop 393 00:24:11,680 --> 00:24:16,400 Speaker 2: discriminating based on race period. And you know, I think 394 00:24:16,440 --> 00:24:18,280 Speaker 2: if the court rules in the manner in which I 395 00:24:18,320 --> 00:24:21,040 Speaker 2: believe it's going to, we're going to be in that 396 00:24:21,080 --> 00:24:23,480 Speaker 2: position to have to move forward in a positive, hopefully 397 00:24:23,520 --> 00:24:24,480 Speaker 2: and productive manner. 398 00:24:24,600 --> 00:24:27,399 Speaker 1: Good to hear I would agree with those points. Ken Toshi, 399 00:24:27,680 --> 00:24:29,280 Speaker 1: thank you so much for coming on the show. I 400 00:24:29,320 --> 00:24:30,280 Speaker 1: really appreciate your time. 401 00:24:30,520 --> 00:24:32,680 Speaker 2: Oh Lisa listen, thank you so much for the opportunity 402 00:24:32,680 --> 00:24:33,600 Speaker 2: to speak with you. Thank you. 403 00:24:38,320 --> 00:24:41,360 Speaker 1: That was Ken Toshi. Appreciate him for taking the time 404 00:24:41,400 --> 00:24:43,120 Speaker 1: to come on the show. I just thought that would 405 00:24:43,119 --> 00:24:45,080 Speaker 1: be an interesting topic. You know, you don't really hear 406 00:24:45,119 --> 00:24:47,439 Speaker 1: about it being discussed as much in the media. And 407 00:24:47,440 --> 00:24:49,720 Speaker 1: that's what I like about this podcast, being able to 408 00:24:49,800 --> 00:24:52,360 Speaker 1: not just having to you know, the follow the shiny object, 409 00:24:52,400 --> 00:24:55,840 Speaker 1: being able to get into some substantive conversations about important issues. 410 00:24:55,880 --> 00:24:57,760 Speaker 1: I want to thank you guys at home for listening. 411 00:24:57,760 --> 00:24:59,880 Speaker 1: I want to thank my producer, John Cassio for putting 412 00:24:59,880 --> 00:25:02,360 Speaker 1: the show together Monday and Thursday, but you can listen 413 00:25:02,359 --> 00:25:03,000 Speaker 1: to throughout the week. 414 00:25:03,080 --> 00:25:03,800 Speaker 3: Thanks for listening.