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Post-Affirmative Action ruling: Understanding the implications

July 6, 2023 1:00:27
Kaltura Video

Mara Ostfeld and Judge Laurel Beatty Blunt discuss the legal, social, and political implications of the two cases about the consideration of race in college admissions.



0:00:23.2 Mara Cecilia Ostfeld: Good afternoon, everyone. Welcome to this policy talks of the Ford School event presented in partnership with the Ford School Center for Racial Justice. I am Mara Cecilia Ostfeld, a political scientist here at the Ford School, and the research director of the Center for Racial Justice. I'm joined today by my esteem colleague, judge Laurel Beatty Blunt, 10th District Court of Appeals Judge for the state of Ohio and Ford School Towsley Policymaker in residence. We're here today to talk about the various legal, social, and political implications of last week's affirmative action ruling by the US Supreme Court. We have people joining from the Ford school and all across the university and beyond. So this conversation will be big picture in its focus. We received audience questions in advance of today's event. Thank you to everyone who submitted those questions, and we'll field those in the last 20 minutes of our time together.

0:01:17.1 MO: But if you didn't submit a question in advance, please feel free to type your questions in the YouTube chat box or tweet them to #policytalks. And our amazing team will do our best to lead them into this conversation. So thank you, judge, Beatty Blunt for being here. I'm really thrilled to have this conversation with you. I wanted to start off by just asking you if you could provide us with a general overview of the legal trajectory of affirmative action cases in the US and summarize the key takeaways from this most recent ruling. How did we get to where we are today with affirmative action and what does this ruling mean? 

0:01:52.2 Laurel Beatty Blunt: Thank you for having me, Dr. Ostfeld It's my certainly my pleasure to be here, even as an Ohioan.


0:02:01.2 LB: But as many of us know, affirmative action has been a topic in the Supreme Court actually for quite a while, starting with a case from 1978 involving the regents of the University of California and a white male by the last name Bakke, who had been denied admission to the medical school despite having higher test scores than minority students who had been admitted that year and what the University of California was using was a quota system, where they had a hundred spots in the medical school and they would reserve 16 of those for minorities. And what happened and the reason why we even keep going back at Bakke, is that the Supreme Court issued what's called a plurality opinion there.

0:02:54.3 LB: So it wasn't like your typical five four. What it was was three justices said that that quota system violated the equal protection clause and three justices said that it was okay to consider race as long as there was a compelling interest. Then you had Justice Powell, who actually came right in the middle and joined both opinions. So even after that opinion because it was a plurality opinion, there was a debate about the precedent that was set with that opinion. After that I'm sure many of you know about the Gratz case and the Grutter case that both involved white females in 2003 that were denied admission to the University of Michigan undergrad program in the case of Gratz, and in the case case of Grutter it was the University of Michigan Law School.

0:03:56.8 LB: Two different results here really, because there were two different methods being used. And so what the undergrad system did was use a points based admission system that granted 20 points for race. And the majority said that that was completely unconstitutional because it did not evaluate each applicant individually and actually resulted in the admission of nearly every applicant of an underrepresented minority status. Grutter was a little bit different because what the law school was doing, they didn't have a point system or anything like that. They just looked at each application and considered race as part of the law school admission and the Supreme Court came out a little bit different on that different, because they said that since it was a more individualized test that that was okay because it was more narrowly tailored towards the goal. And then finally many of us also know about Fisher versus the University of Texas where a white female was denied admission there.

0:05:13.9 LB: But the majority in that case said that the use of race was okay as long it was a factor in a holistic review, but still narrowing forward to serve a compelling interest, what changes with the most recent case partly is that we have different plaintiffs here. We have an organization that is representing a group of anonymous Asian students. Since then, one of those students has come out and spoken out about how happy he is about how the Supreme Court ruled in the case. But that did make a difference. And what our Supreme Court said was that admissions programs that do not have a sufficiently focused and measurable objectives that warrant the use of race employ racial stereotyping of any kind and lack meaningful endpoints are inconsistent with equal protection clause and fail scrutiny.

0:06:21.9 LB: But here's the thing, there is in footnote four, chief Justice Roberts had in there that the opinion does not deal with the issue of military academies and we also know that these cases also only deal with race. They don't deal with any other group. But I think it's also notable Dr. Ostfeld, that what happens is that in that first case of Bakke, justice Powell explicitly says that this is not about making up for any ills of the past. And so that argument is now completely off the table. But it's brought back up in justice Brown Jackson's dissent, but that was pretty, that case back in the '70s was really the first time that that was brought up. But never again, the rationale for affirmative action throughout the litigation since then has been more about creating diverse student bodies. So we have a different argument. And then probably the most consequential thing, the most consequential thing is that we I'm sorry. The most consequential thing is that we have a completely different Supreme Court and so we see that while politics aren't supposed to come into play while on the bench, it certainly comes into play in how you get there.

0:08:07.9 MO: Okay. So you just highlighted a lot of information, and I know there's a lot to parse through in this very, very long opinion. So if you were gonna say there's two or three things that you want people to have in mind as they think through the things that are clear and the things that aren't clear and interpreting this decision moving forward, what would you want people to have in mind? 

0:08:27.1 LB: I think that there is still a question, and the reason I think that there's still a question is again, the military academies, the opinion does not address military academies. And so it begs the question, why might military academies be different? And then also the opinion lays out a disdain for considering race even in essays. But then in the very last part of the opinion, it says that you might be able to address race, it's just that it has to be tied to something based in your character or in your experience or something like that. And I think that a lot of people will argue that race is tied to your life experience. And so that means that race still can be considered. And so we will have to see how it plays out because what is certainly going to happen is more litigation.

0:09:35.7 MO: Okay. I wanna focus on this first point that you raised, that military footnote I thought that was really interesting and I thought it was interesting because there's a suggestion that that exception is based on this interest of national security. And so for a long time, it just made me think of how for a long time conservatives had kind of used this colorblind language that liberals once used to kind of reframe a lot of racially reparative efforts, is this national security language something that liberals can now use to kind of twist the framing and use that language to assert different ends than maybe conservatives had intended, or yeah can you pull this apart a little bit more? 

0:10:19.8 LB: I would expect that there will be arguments to that end, because all of this, if you think about it, Dr. Ostfeld, all of this is somewhat about flipping language over, because what the Supreme Court is doing here is saying yes is acknowledging that we... The whole reason we have the equal protection clause is because things that were happening to people who had been enslaved, right? They go through the history of it but then they're also saying that the equal protection clause protects white people and Asian people too.

0:11:00.1 LB: So there's nothing to prevent that from happening and then it's also very interesting, I think that there... Although a lawsuit wasn't filed there is a group of minority groups that are actually going through the administrative route, and they filed a complaint with the department of Education saying that legacies are against equal protection. And what they do, they use a lot of the same language that came out in the opinion, the SFA opinion because they're saying they quote the SFA opinion to say, admissions is a zero sum game. So if you're admitting legacies, then you're taking away a spot from someone else, just like SFA said, if you're considering race, you're admitting people and taking spots away from someone else. They use Justice Roberts language from SFA that says eliminating racism means eliminating all racism. So I think that there's a lot of different contexts where people are using the language for their purposes and their [0:12:21.5] ____.

0:12:23.7 MO: I really liked it was interesting again going back to that military point I liked I thought the language that Sotomayor and she had said to the extent the court suggests national security interests are distinct, those interests cannot explain the court's narrow exemption as national security interests are also implicated at civilian universities where they're doing all their ROTC recruiting programs including and on Harvard and UNCs campus. So I thought it was interesting how she wove that back in, and then she also highlights that history teaches us that racial diversity is a national security imperative. So you see the beginning, I thought of these reframing of how we think about national security interests to explicitly include diversity, just like it seemed like Roberts was going down that direction.

0:13:07.4 LB: Right, right. And it's interesting, Mara, from a judge's perspective, I wonder what happened because the way that my court does opinions, for example, so if I'm the author of the opinion, I send it to the next judge who, and then we work on it together, and then it gets sent to the third judge. The way the Supreme Court does it is they conference and they decide who's going to write what, and then the drafts just fly. And so it's feasible that what happened was Justice Roberts saw Justice Sotomayor's dissent, and he wanted to address the military issue in the majority, and then he dropped that footnote and ran out of time before the term ended.

0:13:57.6 MO: Oh, that's interesting. So there...

0:14:01.9 LB: No. It could be that simple. Yeah.

0:14:03.9 MO: Yeah. That's really interesting.

0:14:04.0 LB: Yeah.

0:14:04.4 MO: Okay. So you've raised this other point about, and we've already seen the beginning of litigation around, or people talking about litigation around legacy admissions, but there was also discussion of all these other kind of not necessarily set asides, but considerations for other attributes like again, legacy admissions, children of donors, children of faculty, athletes, people who are from a state that doesn't... They don't get as many applicants from. So do you see this as bleeding over into all of those considerations? Do you see limits on how many of those types of other considerations that this might extend to? 

0:14:39.7 LB: It absolutely could blend over because like when I say expect more litigation, I mean expect more litigation from both sides because proponents of lots of affirmative action like I said, are already using this opinion to say, okay, let's take this reasoning and apply it to other areas. Again, in this case, the legacies opponents of affirmative action will use this opinion as a springboard, as a basis to argue that it should go into other areas, other industries, and that is not unheard of. Because if you go back and think about it, Brown versus Board of Education, that's exactly what happened. Brown versus Board of Education was about segregation in education, but it then it served as the basis to argue against segregation in many other contexts. So I would expect that this opinion is a springboard for opponents and proponents to both use to argue different things.

0:15:55.2 MO: Okay. So then you're connecting it not just to different types of considerations we give to applicants, but to other things like hiring and contracting and pipeline programs. I mean, there's already been concerns in some schools and in some states about student clubs and organizations that are explicitly for women or explicitly for Latino engineering students or anything. Do you see this as extending to all of those? Or do you see this as right now more narrowly focused on education? 

0:16:26.1 LB: I'm not really sure right now everything's focused on education, but like I said, I am... First of all, like when you go back a lot of, there's one person that's behind a lot of the litigation opposing affirmative action, his name's Edward Bloom and when you go and listen to his interviews and things, even since the decision he is at the ready because he thinks that like Harvard and UNC and different schools are gonna try and work around the SFA opinion, and he's ready to bring more lawsuits to challenge whatever those workarounds might be.

0:17:10.5 MO: Have you seen the seeds of other types of legal strategies from people who are kind of working with him or from himself? Or do you see other strategies already starting to percolate among people who wanna see affirmative action reinstated? 

0:17:25.0 LB: It's both. It's both. Edward Bloom has been involved in strategic litigation against affirmative action for a really long time, and when I say strategic litigation what you're doing is you're using the courts in order to change something about society. And so you're picking certain plaintiffs, you're filing your cases in certain courts, and typically in both the case of affirmative action and the pro-life movement they have been ready and willing and able to engage in years of litigation using different plaintiffs, using different arguments, and then at the same time trying to influence judicial nominations so that then if they do get up to the Supreme Court, they have a court makeup that is friendly to their views, but again, at the same time we're already seeing things about legacies being filed, so both sides are at the ready and there will be more litigation. And again, Dr. Ostfeld this whole, all of those cases that I talked about only dealt with race.

0:18:48.9 LB: They only dealt with race and I think that's part of what people who are upset about this opinion are upset about because they feel as though the arguments I hear them making is that you have turned upside down 50 years of precedent, and that this is going to be a bad thing for people of color trying to get into schools while the other side is arguing that the Constitution says what it says. It says equal protection for all people. And so you can't turn around and use any type of policies that then put white people or non-people of color whatever group you're dealing with at a disadvantage.

0:19:43.6 MO: Yeah, I mean, it's so frustrating 'cause obviously race is accounted for in so many implicit decisions. And then to say that it's shaping so many institutions and the outcomes of so many people's experiences and lives, and that we can't formally account for it despite this ongoing mountain of evidence that it affects so many lived experiences.

0:20:01.2 LB: Yeah. And it's also interesting, Dr. Ostfeld, when I was reading about the challenge to legacy admissions. You know, when they look at Harvard, what they're alleging is that of the legacy admissions, that 70% of them were white.

0:20:22.8 MO: Of course.

0:20:23.9 LB: And that it made you six times, they alleged that it made you six times more likely to get admitted to the college. Which is those are some big numbers. You know, they're probably bigger than the numbers that we're dealing with when we're looking at race as a consideration in admissions.

0:20:48.8 MO: Yeah, that's a really interesting comparison and it kind of exacerbates all the other disparities. 'cause when you think about who had access to going to college, especially an elite college like this one generation, two generations ago, then we're already recreating disparities that persisted for so long. I mean, it gets into this other question that we've seen starting to emerge about how effective in states that have already had bans on affirmative action in the Washingtons and Californians and Michigans. We've seen these alternatives be proposed or ways of getting around, kind of still trying to diversify classes that don't explicitly mention race. Have you seen any of them be particularly effective? Have you seen challenges to any of those? 

0:21:34.7 LB: Well, here is, I think because the biggest, the people who are challenged the most right now are the admissions officers of colleges as well as the legal departments because we cannot forget that while the legal department tells you what you can do, part of their job is risk management.

0:21:58.5 LB: And so they're trying to avoid trouble or avoid lawsuits. And so when you look at the SFA opinion chief Justice Robert talks a lot about measurement and What can be measured. And so here's the tricky thing is that if you then go back and try and say, with a study or whatever, oh, well this is what happened when you had this number of diverse students in the classroom versus this is what happens when you did it. Now have you admitted that you violated the equal protection clause in the SFA case? Because you're trying to, the case says that it can't be measured. And you're trying to measure it, but in trying to measure it, you're going to be doing what the case says you can't do.

0:22:58.3 LB: So they are in a difficult spot right now, but I think that while it's tricky both Harvard and UNC in their statements after the opinion said that they were going to try and I can't remember the exact wording that they used, but what they were going to try and do was to stick with their values that diversity is important as well as comply with the ruling. So we will see what happens next.

0:23:38.8 MO: Yeah. I've seen a lot of discussion about how the externalities that this can have on just efforts to, or concern because of concerns about litigation. There'll be this hyper compliance and that people staying away from anything that might be perceived as some type of race-based consideration that will further harm a lot of students of color.

0:24:00.0 LB: You know, it's really interesting Dr. Ostfeld, because you also see the same things happening with abortions. You know, people don't wanna get sued. Trust me. I know. Because they're never smiling when they come see me. And like I said, part of a university's legal department is a risk management.

0:24:23.2 LB: But and so it will come down to that risk management as well as prioritization as to their student body and and what they wanna do with it. I do also think, and this is, kind of segues more into your area, Dr. Ostfeld, and I think one thing that we see that's interesting is that people are really seeing how our government is set up. So, Like I said our government is set up to keep judges out of politics. The justices go through a nomination process. They are not voted upon. They don't answer to voters. And as well, they don't have terms. It's a lifetime appointment. Once you get on there, you're on there until you're not And so we're, I think a lot of people are feeling frustrated.

0:25:25.7 LB: Because they don't feel that the Supreme Court is accountable to the people. And so I would remind them that if you like this decision or you don't like this, where voters come in is through voting their participation in presidential elections and in US Senate election it their hands aren't a hundred percent tied when it comes to Supreme Court justices. And so I would say anybody who is happy or unhappy about this decision your redress is at the ballot box.

0:26:05.8 MO: Absolutely. And that highlights, again, like you said, the importance of not just presidential elections, but as we saw in Obama's second term, he needed the Senate. And so we need to make sure we vote at all levels. And that's a really interesting point we've also seen people engage with is how we saw abortion have such a big impact on how people voted in the elections in the midterm elections. So a lot of people are starting to wonder, how will this effect turn out in the general election next year. And so we've already seen some interesting polling around this. And that's what I love to look at is the polling. But I think what's tricky is that the thing that tends to increase the likelihood of turnout is anger.

0:26:46.9 MO: And so the question is, are enough people angry about this to turn out? And then the two things that determine election outcomes are independence and turnout. And so we see that a lot of independents, this is not a top issue. There's a lot of independents who say they kind of feel in the middle. They're not sure how they feel about this. So there's not a lot of evidence that this ruling in particular is gonna push independents in one direction or another. We'll see if the other rulings do, but as of right now, these issues don't seem to be like a big issue for independence. The other issue is, if we, especially for the likelihood of Democrats getting into any office is, is getting turnout, especially among younger voters and voters of color, that's something that swings a lot and tends to determine the outcome of racism.

0:27:31.6 MO: And so whether people are angry enough about this to actually wanna make sure they go out not only in vote themselves, but encourage their colleagues and their friends to vote remains to be seen. Something that I think is also important to note is that anger tends to be a really powerful and motivating emotion. For some people, it tends to be really effective among white voters, but because voters of color tend to face more stigma for expressing or demonstrating anger, it tends to be less motivating as a voting outreach mobilization tool for voters of color. So that's also raised some concerns among some organizers and activists.

0:28:13.6 LB: I have a question for you too, Dr. Ostfeld. This is out of my legal expertise. I'm thinking about this decision and I'm thinking about information that we have from the census that is showing us that the United States is becoming more diverse. And then I'm also trying to think about it in light of the research that we have around a K-12 education. We're having this conversation without talking about how people get there in the first place. And so I really also just wonder how this plays out not only in 5 years but in 20 years? 

0:29:07.7 MO: I think that's a really good point. And I think you're like segueing into another important point that a lot of people have highlighted. Like, of course this is really concerning and this is impactful 'cause we know people who go to the institutions that are most likely to rely on affirmative action, the more selective institutions tend to have greater access to positions of extraordinary power especially in American politics and economics and various forms of decision making. But it, some people have highlighted that it kind of shifts the focus from the institutions that tend to be the places that educate the majority of students, and especially the majority of students of color. And those are institutions that tend to have acceptance rates above 25%. Only 6% of students that go to college go to schools that accept 25% or less of their applicants. And so some people have raised questions about, you know what, maybe we should take this opportunity to focus more on the state schools and schools that are educating so many more students of color as well. Have you heard that? Do you have any reactions to that argument? 

0:30:09.7 LB: I really just, as a lawyer, not an admissions officer. I understand how some people argue that this decision is great in theory. But in practice is not going to pan out well. One other thing that I wanted to bring up that I thought was interesting, and I also thought it was interesting where I saw it highlighted. As a judge, I'm trained to consider both sides, right? So I was watching a show that Laura Ingraham did on Fox Nation about the decision, and they were having a discussion during her show about when Justice Powell was in the middle in the back Decision. He went to Justice Thurgood Marshall and said, "Well, how long will it take for black people to catch up?" And Thurgood Marshall said 100 years.

0:31:19.9 LB: And so I also wonder, had the court makeup been different, had there been a different majority and Thurgood Marshall's opinion was the majority that talked about we're trying to help the people who had been enslaved for generations, how this might be different. And where would we be because we'd be at a completely different starting point in our legal analysis, even if one vote had been different on the Supreme Court back when I was 4 years old.

0:32:00.0 MO: That's a really powerful point. I wanna weave in a question from the audience. Someone in the audience asked if you could clarify, does this mean you won't have to put your race into an application or you still do and it's just not considered.

0:32:13.4 LB: So what it is like I said, the opinion says no, you can't even consider race at all. And then it says, don't, you can't, says the language is something like you can't do indirectly what we have said you directly can't do. Within those last couple paragraphs, say, leave a possibility that, for example, if the question is one about character or adversity or something like that, that you can talk about how your race has helped you overcome adversity. So that's another reason why we'll be back here [0:32:56.1] ____.

0:33:00.3 MO: Okay. That's interesting. Because I thought they were still gonna, they still were gonna measure race, just not, they're just not allowed to account for it and admissions decisions. But I thought they were gonna still track that data just so they could have the data that we have in Michigan, for example, we have data on, in California on how many students of color applied, how many were admitted, and how many accepted. We'll still be collecting that data though, right? Or are you saying...

0:33:23.1 LB: I think we do still collect the data.

0:33:25.6 MO: Okay. It just can't be...

0:33:26.8 LB: But it's whether it's considered an admissions.

0:33:30.1 MO: Got You. Okay.

0:33:30.9 LB: Do you know what I mean? And also now when I look at the question, it says, does this mean that you won't have to put your race into an application? Yes. There will be scenarios where you won't, because you know, the only avenue that might still be okay is in an effort or in an essay tying your race to some type of experience or adversity or opinion or whatever, but you might be able to answer those questions without putting your race in there. So it kind of depends on the applicant. You know, if you want to show, if you don't wanna show that you come from an underrepresented group, you don't put it in there. And if you do, the essays might be a way for you to get that in there.

0:34:19.2 MO: Okay. I mean, this leads into something else that we saw after prop 209 in California, after affirmative action was banned in California, we saw this additional momentum around something called the Proposition 54. And the goal was okay saying now we were not accounting for race and hiring decisions. This was Ward Connerly arguing we shouldn't even be measuring race. And so that, that was really troubling 'cause if you're not measuring race, you can't show that there's ongoing disparities. You can't show the lived experiences. You can't validate the adversity and discrimination that people are going through. And so I would be very troubled if it wasn't included on applications just for the purpose of documenting trends. I think that would lead us down an even more problematic road. And it was interesting because that proposition came very close to passing, but it was a medical community that lobbied against it saying, "We need this data to document health trends."

0:35:17.9 MO: And that was kind of the thing that flipped it over. I also wanna go back. You've referred to you've made a couple references to kind of remedying, not even remedying, but starting to begin the long road that we need to embark on to engage in type of restorative and reparative efforts in response to hundreds of years of enslavement. And I thought it was really interesting 'cause I heard, I read a little bit about, in one of the questionings in around this case, Kavanaugh actually left an opening for educational benefits to descendants of slaves. And he specifically said, "A benefit to descendants of slaves would not be race-based correct." He asked that to a lawyer arguing for the end of race-based affirmative action. And he said, "If that's correct, then the benefit for descendants of former slaves is also not race-based." And so I thought that left a really interesting opening that there are there were Native Americans who were enslaved and so descendants of slave could be another way to account for this and remedy or continue to engage in some of these efforts.

0:36:37.6 LB: And that is actually a criticism that some of the opponents of affirmative action have of his concurrence because it's their opinion that if you follow his line of reasoning, you're just going to open the floodgates for anyone who has been wronged for hundreds of years or hundreds of seconds to then claim that they should whatever their ill was, should be in included and considered.

0:37:00.0 MO: Yeah. I mean, at the same time we've had plenty of reparations in American history. We give reparations to farmers every time there's a natural disaster. We've given reparations to Japanese Americans after internment camps. So I think there is a precedent for reparations in our country. And I hope that this presents an opening for it to be taken more seriously. But we'll see.

0:37:23.8 LB: And since you mentioned precedent, there was one thing I also wanted to point out is that do not be super duper quick to just say, oh, this court is horrible. They have just ignored so much precedent because how you look at precedent kind of depends on where you are on the issue.

0:37:46.0 MO: Of course.

0:37:48.6 LB: And I would remind people that, we had Plessy versus Ferguson, separate but equal for a very long time. And then it was Brown versus board of education that went against that precedent. And so depending on your opinion of... And I will confess as a judge, precedent is one of the first things we look for. It is something in the law that is honored and valued. But I think depending on what side you're on, it can be a good thing not to go with precedent.

0:38:25.8 MO: Well, it was interesting too, 'cause I think Judge Roberts or Justice Roberts started off, his opinion by citing Judge Harlan when he overturned or wrote his opinion, overturning Plessy versus Ferguson using the language of aspiring for a colorblind society. And so I think it also reminds us of how important language is and how we have to be careful about how language can be used.

0:38:49.2 LB: Absolutely. A 100% right on that. Because when you start reading the opinion, you almost think he's going the other way.

0:38:56.5 MO: Right. I know, I know. Okay. So we have one of the first questions from, that was submitted in advance and someone asked, do you think universities, public, private, or both could/would try to circumvent this ruling? And if so, how? I don't know if you have thoughts on that. I know how some schools have talked about responding to it, but I don't know if you have any thoughts that you wanna first share.

0:39:23.7 LB: From a legal standpoint, I would just caution them. Again, both sides are on the ready to attack anything that people try and do to get around this. So we'll, just have to see what happens.

0:39:42.8 MO: Some things that I've heard, and a lot of states have already used is one thing is what they call these, like Texas 10%. California had this, they would accept the top 2% of students from any high school in the UC system. They were all guaranteed, or it's the top 4% and then changed to the top 9%. And the goal was to recognize that a lot of our, K-12 institutions are heavily segregated. So if we guarantee admission, to the top 2 or 4 or 10 or whatever percent of students from every high school, then that will help circumvent this in a way that's still race blind or race neutral. And there is evidence that, there was this big reduction in students of color on college campuses after affirmative action was banned. One, they when Texas and California implemented these percent policies that did increase enrollment from black Latino native students relative to when it was banned. But it was nowhere near the effect of when affirmative action was in place. It did improve the socioeconomic representation of students that there were more low income students. But again, it didn't get us anywhere near where things were when race was explicitly accounted for.

0:41:00.3 MO: And it was interesting because again, these policies are really having the biggest effect at the most selective institutions. And so those are the places where you're really seeing these policies come into play and change admission policies. Like in California it was UCLA and Berkeley that had these big effects, but the other institutions didn't. There's also, more efforts to engage. And we've seen, I think Justice Thomas was actually talking about this was often referred to as these holistic review policies where it eliminates the use of fixed weights, but encourages universities to account for a wide variety of criteria, not race, but including things like the percent of people who didn't speak English as their first language in the district that you grew up with, the number of people living under the poverty line, things like that, to account for access to a lot of the things that tend to privilege applicants, mostly white, mostly wealthy applicants in the admission process. That also had some benefits relative to just a straight ban on affirmative action, but it was nowhere near getting us back to where the demographics of college campuses where when affirmative action was in place.

0:42:09.3 MO: So we see The percent policies, the holistic reviews. A lot of schools, if schools have more resources, they'll invest more into recruitment and pipeline programs. So we've seen Michigan try to do more of that. Try to focus, again, not on a racial demographic, but certain municipalities, where there tend not to be a large, a heavy pipeline of students applying from. We've seen students schools push for dropping test requirements and hope that that would have some positive effects, it doesn't increase the diversity of campuses, especially on the undergraduate level.

0:42:46.7 MO: And then there was a couple other smaller possibilities, just having one with some, like having students talk about the adversity that they've overcome, whether it's racial adversity, economic adversity, mental health adversity, ability adversity, anything like that. And there's been some discussion of what that's gonna lead to. If that's just gonna lead to this type of poverty pawn or adversity pawn where everyone's trying to say, I'm the most harmed that's a chance. It's something real. We're incentivizing people to reduce themselves to the greatest form of adversity. And is that the context that we wanna create, especially when we also want people to be in a place where they can recognize their privilege. It's kind of being able to account for both of those dynamics that I think is important and is a tension that a lot of schools are grappling with. But I thought that was a great question.

0:43:37.7 LB: And also, Dr. Ostfeld, I think about, because some advocate that, admissions should just be grades and test scores. I think particularly, again, when you consider that census data, you can be the smartest person in the world and not know how to lead anybody.

0:44:09.2 LB: And I don't necessarily, and when I say lead anyone, I mean, lead a movement but I also mean lead a staff of five You know what I mean? Unless you are aware of certain things, you've had experience with different things or you're, or at least willing to know what you don't know all of that can come into play As to how successful you are, no matter where your degree is from and so I really, I really wonder about how this works out long term. Because in many ways, like when you talk about colleges and universities, to my point, it becomes a workforce issue. But also, we can't ignore again, the research that we have available to us about what's happening in K-12 education about the social determinants of health, access to education being one of them and how all of that comes into play to who's applying in the first place and what You can consider.

0:45:19.6 MO: Well, and it's interesting because after it was, I think it's important to note that after affirmative action was banned in Michigan and Texas and California, there's a lot of evidence it didn't just affect admissions, it affected the likelihood of students applying. And so I think it's important to think through the psychological effects on whether I will be given appropriate consideration and what's the context I'm going into? Am I walking into a context that feels frustrated with students of color and that has an externality, a negative externality on maintaining a diverse and inclusive education environment. Okay.

0:45:53.9 LB: Could you talk a little bit more about, what happened, in California and Michigan? I'm drawing a blank on the number in California, but I know it's Proposition 2 in Michigan.

0:46:07.0 MO: Yeah. Proposition 209 in California.

0:46:09.2 LB: Tell us a little bit more about what happened after those.

0:46:13.0 MO: Well, it's interesting. In the '90s in California, right as, and we often see this happening as an area becomes more diverse, we see, we start to see more policies put into play that kind of, are these backlash policies. So we saw this influx of policies targeting Latinos and communities of color in the '90s in California and Proposition 209 and the 54, where some of them, I mean, going back to your point about the census is then as the populations begin to diversify, that means people in positions of power then later become elevated to representatives and stuff. And so we start to then later on see policies start to shift often in a more racially liberal direction is, which is what has happened in many ways in California. And they follow in other contexts like Texas, there's been a lot of speculation about how the diversification of Texas, and how the fact that white people are projected to be a minority or people color expected to be a plurality, how that may eventually change the politics of the state.

0:47:12.6 MO: We'll see if that actually plays out. But again, we have a couple states. We have Arizona, California, Florida, Michigan, Idaho, Nebraska, New Hampshire, Oklahoma, and Washington all have some form of affirmative action ban. And in each of these contexts, students are further from parity with their proportion of the state's population, their share of the state's population than in states that have some type of affirmative action program. So we have an abundance of data that this really harms students of color. Again, from the admission, from the application stage and the context of admissions, and then the context of acceptance rates. And so, we have a lot of evidence to this point that this is gonna be a hurdle. I wanna make sure we get to some of these other questions. I have another question. What's the best strategy for protecting this at the state level if we can't get it protected at the federal level? Is, judge, Beatty Blunt, is there a path for that? Is that possible? Since this was a federal ruling? 

0:48:15.6 LB: That would be really tough because, all of this comes down to federal funding and I mean, I, again, I'm not in admissions, but I would imagine that almost all colleges and universities get federal funding, don't they? 

0:48:32.6 MO: Not all, but most. I mean, Harvard Health as well. Right.

0:48:39.6 LB: So, it's really, it's gonna be tough to, say for example, do something through state legislation, Or something like that, because again, Edward Bloom is at the ready to sue about everyone.

0:48:54.0 MO: Yeah. What's the story? I wanna know his story. How did he get to that point? I have so many questions I need to read more.

0:49:00.0 LB: That's a really good question. I'll note to you though, it's always been about race. It Has never, when you watch his interviews and everything, it's always about race. He doesn't mention women. He doesn't mention geographics, anything like that.

0:49:18.6 MO: That's really interesting. Okay. Another question from the audience. How do institutions of higher learning and indeed society repair the centuries long disparities in education that denied those descendants of enslaved Africans the pathway to equity? I don't know. I'm going back to, I think there's a need for reparations. And I think that reparations needs to, in research that's been done on this topic, it needs for it to have the healing effect that really transforms the society and increase the social trust. It needs to explicitly recognize the race-based nature of the dynamics of slavery, of Jim Crow, of redlining, of mass incarceration, for it to have the necessary healing effect that we want it to have. So I think it's gonna be something that we keep bumping up against.

0:50:11.2 LB: I agree with you, Dr. Ostfeld. And all of these, by the way, are my personal opinions. They're Opinions of Laurel Beatty Blunt, not Judge Laurel Beatty Blunt. But I think that until we deal with the issues Of our past, it's gonna keep coming up. Because I think that it's not necessarily a good thing that those arguments about remediation and everything, it's not necessarily a good thing that they were taken out of the equation way back in the '70s.

0:50:47.6 MO: Right. And it's interesting because I heard someone mention that, that there had been, quotas had been used prior to that Bakke ruling. They just had been used to exclude students of color as opposed to provide a seat for them. So it's interesting how our views of these different tools change depending on who is harmed and who benefits. Okay. One more audience question, and then I have my own final question for you, judge. The audience question is, what do these rulings, abortion in 2022 LGBTQ, rights, affirmative action, mean for the future of the Supreme Court and their legitimacy? How can we as activists mobilize in response to the ruling? 

0:51:31.5 LB: Here's the thing. We always have to consider both sides. And I Understand that people question the legitimacy of the Supreme Court. People who disagree with the Supreme Court's rulings question the legitimacy of the Supreme Court. There are a lot of people out there that agree with what the Supreme Court did and consider the Supreme Court very legitimate. So, we can't forget that and then again, I am feeling the frustration of the people who disagree with these opinions, And, part of the frustration that I pick up from them is, the fact that they don't feel like Supreme Court justices, are either in tune with the public or accountable to the public. And, the way that they are, again, is through the President that nominates them and the Senate that confirms them.

0:52:39.7 LB: Because, if you look back, we, Justice Alito, who was the author of the Dobbs Opinion way back before, president Reagan had nominated Harriet Myers who Was met with a lot of opposition. And so then she withdrew. We got Alito, Merrick Garland was not given a hearing. There's lots of ways, the makeup of a Supreme Court is years in the making. So they're particularly short term. There is, not a lot that we can do right now, if you disagree. But, whether you agree or disagree, again, your recourse is at the ballot box through the President, through US Senators. I would also, if I could just really quickly point out, I've had a lot of young people reach out to me, feeling that, wow, I'm gonna get a different standard than even my brother and feeling bad about this decision. To them, I would say, whether you agree or disagree, really, if you, you have to have a short-term game and a long-term game.

0:53:56.1 LB: So with your short-term game, remember, be careful with your choices. Look at where you're going, applying to school. Look at where you spend your money, be conscious of who you vote for. And then in the long-term game, prepare yourself for leadership. Prepare yourself for when you are the decision maker. And then that's when you are at the table to keep things the way they are or to change them.

0:54:32.6 MO: Going back to voting and investing in that pipeline, investing in that pipeline for who's in elected office, for who's going into judicial seats to reshaping what our future would look like. Conservatives and opponents of affirmative action were very strategic. Opponents of abortion had a legal strategy that was years in the making years.

0:54:52.2 LB: Years.

0:54:52.3 MO: And there's a lot of, yeah. A lot of critiques that people who were supportive of these policies had not invested as much into strategies to kind of build these legal cases and build these judicial panels.

0:55:01.9 LB: And I also don't want to give strategic litigation a bad name either. Because while abortion and affirmative action, there's been strategic litigation around them for a long time. We also can't forget that strategic litigation, Thurgood Marshall being one of the main craftsmen is also what got us Brown versus Board of education.

0:55:30.7 MO: Yep.

0:55:32.5 LB: So it's not, in our polarized society, we tend to wanna go that things are all good or all bad and nothing, it's very mutually exclusive, and that's not necessarily the case.

0:55:45.3 MO: Absolutely not. That's a really good point. Okay. We only have a couple minutes, and I wanna get one thing from you. I wanna know in one minute, what are your biggest concerns and biggest hopes going forward in response to this ruling? 

0:56:00.0 LB: My biggest concern is that people don't, they don't know how our, our government is set up, quite frankly. I run for office every six years and spend most of my time educating. And so, unfortunately, because a lot of people were never taught or they've forgotten, they're having some really bad and shocking reactions to some of the opinions that have come out of the Supreme Court. And so my hope is that they will, again, whether you agree or disagree my hope though is that that will prompt people to become involved in the process. Because our whole system, remember you all, like our whole system was set up because the colonists were mad that the British could just come over here and do whatever they wanted.

0:56:54.9 MO: Right.

0:56:55.3 LB: And they wanted the people to govern. And in order for the people to govern, they have to know what they're governing about and how they can affect the process. So I really hope that this spurs people to become engaged. My fear is what I'm hearing from young people because I think that they feel that the baby boomer generation, and all the research shows that like Gen Z thinks very differently than the baby boomers. So they're feeling like the baby boomers are making decisions for them that they very strongly disagree with and so my fear is that that leads to apathy. That that leads to, it doesn't matter anyway. Coming from someone who had a friend that lost his election last cycle by 274 votes. That scares me. I really hope the flip happens whether you love this or you hate this, I just hope that it prompts you to become involved instead of to stick your head in the sand.

0:58:10.7 MO: That's a great point. I'm gonna highlight my concerns and hopes as well. My concerns, I think, are what I mentioned before, I'm very afraid there was this movement towards banning collection of data on race that we saw start to emerge in California. And there are seeds of that in other states, so I'm really nervous about those bans on collecting data on race at all. I think that would be a huge detriment to the tracking of disparities and just acknowledgement of where we are in terms of addressing racial inequality and making steps towards doing more work on that front. I think it's really concerning to think about how this might be extended to other industries from hiring to contracting. College is super powerful. It's a really influential four or six years of your life, but hiring could extend on affect a much larger population for a much longer period of time in some ways. So I think that's really scary. I've seen a lot of more discussion about reverse discrimination claims.

0:59:12.7 MO: Unsettled to see those spiking up more. And then, as you said, judge earlier, this hyper compliance efforts to avoid litigation by trying to stay away from any racial conscious policies at all. I think that would be a really sad effect of this if things went that way. But I will say I felt really inspired when Kavanaugh raised that point about giving benefits to descendants of former slaves that that's not race-based. So I think when he said that, I was like, "Well, that's an opening." I saw an opening when Sotomayor started talking about framing kind of diversity as something that's important to national security. And now we have evidence that a lot of justices see diversity in certain contexts, especially in the context of the military as essential to national security. So I see opportunities to extend some race conscious policies on both of those fronts, and it'll be great to see where that goes. Judge, I am so grateful to you for joining us today and for getting this time to talk to you. I'm thankful for everyone who came and shared their questions, and I look forward to continuing these conversations.

1:00:19.8 LB: Thank you for having me. It's always a pleasure.