Berkeley Talks transcript: Legal scholars unpack Supreme Court ruling on affirmative action

Listen to Berkeley Talks episode #174: Legal scholars unpack Supreme Court ruling on affirmative action.

[Music: “Silver Lanyard” by Blue Dot Sessions]

Intro: This is Berkeley Talks, a Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at UC Berkeley. You can follow Berkeley Talks wherever you listen to your podcasts. New episodes come out every other Friday. Also, we have another podcast, Berkeley Voices, that shares stories of people at UC Berkeley and the work that they do on and off campus.

[Music fades out]

Stephen Menendian: Thank you for joining us today to discuss the bombshell Supreme Court rulings last week. We are joined by three eminent scholars today. First up, we will have Erwin Chemerinsky, who is the dean of Berkeley Law, a position he’s held for the past six years. He’s authored more than a dozen books and over 200 law review articles. His recent books include Worse Than Nothing: The Dangerous Fallacy of Originalism, published in 2022, and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, published in 2021. It’s hard to imagine being that prolific. He’s been named by National Jurist Magazine as the most influential person in legal education in the United States.

Also joining us today is Professor john a. powell who is the professor of law, African American studies and ethnic studies at UC Berkeley, and who is the director of the Othering & Belonging Institute. He’s the author of many law review articles and several books including his most recent, Racing to Justice: Transforming Our Concept of Self and Other to Build an Inclusive Society.

Also joining us today is Professor Sheryll Cashin who is a professor of law, civil rights and social justice at Georgetown University. She is also the author of several books including her most recent, White Space, Black Hood: Opportunity Hoarding and Segregation in the Age of Inequality. And most relevant to today’s discussion, Sheryll’s 2014 book, Place Not Race, recommends radical reforms to college admissions in order to promote diversity.

My name is Stephen Menendian. I am the assistant director at the Othering & Belonging Institute and will be your moderator for today’s session. Before we invite each esteemed panelist to speak, let me just provide some brief background on these cases. An organization called Student for Fair Admissions challenged these so-called race conscious admissions plans at two very different institutions. The University of North Carolina, a public university, and Harvard University, a private Ivy League institution. Both UNC and Harvard considered the race of applicants as one of many factors in evaluating who to admit into their undergraduate bodies. I should emphasize the type of the diversity they sought to inculcate and foster was not simply racial diversity, but multidimensional diversity.

These plans were designed and modeled in many ways off of plans that the Supreme Court had upheld previously, as recently as 2016 at the University of Texas in a case called Fisher v. Texas, and at the University of Michigan in 2003 in a case called Grutter v. Bollinger. The basis for the challenges were different, however. The challenge to the race conscious plan at UNC was the equal protection clause of the 14th Amendment of the United States Constitution and the challenge to the plan at Harvard was Title VI of the 1964 Civil Rights Act.

The court has now changed course after decades of precedent and held that these specific admissions policies used by Harvard and UNC violate federal law, striking them down. We are going to talk about what the court held, what it means and what advocates can do going forward in higher education and beyond. Before getting into the nitty-gritty of what to do going forward, if you have questions for the panel, please post them into the chat and we will pose as many as we can towards the end of the panel. Again, holding off on what to do going forward, let’s focus on what this means. Beginning with Dean Chemerinsky. Dean, as the dean of a major public institution, a public law school, what does this mean for institutions of higher education?

Erwin Chemerinsky: Generally, what it means is that no longer can colleges and universities use race as a factor in admissions decisions to benefit minorities and enhance diversity. As you referred to, in 1978 in Regents of the University of California v. Bakke, Justice Lewis Powell wrote the pivotal opinion saying college universities have a compelling interest of a diverse student body. They could use race as one of many factors in admission decisions to benefit minorities and enhance diversity.

In 2003 in Grutter v. Bollinger, a majority of the Supreme Court affirmed that. Most recently in 2016 in Fisher v. University of Texas, Austin, the Supreme Court reaffirmed it. One might wonder what changed in just seven years? Did the court find some musty history of the 14th amendment that let it believe it made a mistake? What changed was the composition of the court. The three dissenters in Fisher remained. Roberts, Thomas and Alito. They were joined by the three Trump appointees, Gorsuch, Kavanaugh and Barrett, and that produced the sixth-three decision on June 29th.

The Supreme Court never expressly said, “We are overruling Bakke, Grutter and Fisher,” but that’s exactly what the Supreme Court did. Chief Justice Roberts writing for the court rejected the idea that diversity is a compelling interest in admissions. And he said no longer can any preference be given on the basis of race. Much remains unclear as to the future, but that holding is apparent. So the answer to your question, what’s this going to mean? For public universities it means that they would violate equal protection if they engaged in the kind of affirmative action that Supreme Court previously allowed. For private colleges it means they’ll violate Title VI of the 1964 Civil Rights Act that applies to all institutions that receive federal funds and says they can’t discriminate based on race.

About 60% of the selective college universities in the country were engaging in affirmative action. That gives you some sense of the dramatic impact of the ruling. The only caveat is for those who are in states that have already abolished affirmative action, these decisions won’t make a difference for the public universities there. In California in 1996, proposition 209 eliminated affirmative action. It says that the state and all of its subparts can’t discriminate or give preference based on race or sex in education, contract or employment. States like Michigan and Washington adopted similar initiatives. So in these places, public schools are already having to do admission and hiring without affirmative action. Last week’s decision won’t matter for them. But it will matter for private schools in those states because Prop. 209 and similar initiatives don’t apply to private schools and it’ll apply to public universities in all of the states that don’t have initiatives like California. The bottom line is this is going to have an immediate devastating effect on diversity in higher education.

Stephen Menendian: Thank you Dean. Professor powell, zooming out for just a moment, what do you see as the larger public significance of these rulings? What is the symbolic or communicative import of these decisions? What is the court saying to the public, the political community and to public and private institutions?

john a. powell: Well, we go back to Brown and the Supreme Court in Brown and several law review articles later made it clear that segregation was not just a physical separation of people, and I would say segregation of opportunity, but also symbolic. It sent a message. And the court talked about the negative message associated under Plessy, which was overturned by Brown. And so the court is always engaged, especially around issues of race, trying to actually, if you will, curate a message about the country and also about our history and about our future. And so for those of you who will be inclined to read the opinion, you’ll see it’s a history lesson, but it’s a very different look at history going back at least to the Civil War and the Civil War amendments.

And so really what we’re arguing over is the equal protection clause in the 14th Amendment and what does that mean. And the meaning is not clear just by reading the Constitution. It has to be interpreted. It has to be given some context. And we have very different context. And as Erwin suggested, who makes those decisions is critical. Again, you can’t read the Constitution by itself and get to where the court is today. Even the fact that we now think of the 14th amendment as anti-discrimination, those words are not in the body of the text. Does it require intent? That was not decided until fairly recently. So the court went for over a hundred years saying no, or at least leaving that question open.

And so what’s happening is what the court does is it narrows. It says, both the dissent and the majority, says we are the ones who are really being truly loyal to the original meaning of the Constitution. I think it’s much, much, much more complicated than that. When the Supreme Court in Brown was trying to consider what the original meaning of the Constitution meant in terms of segregation, it actually created an effort where it asked historians to do the research and when it came back it said it’s too complicated. We can’t really with confidence rely on that. So part of this is really about the future and the country’s becoming increasingly diverse and how do we deal with that?

It’s also interesting that one of the things that Powell said in Bakke is that there is such a thing as societal discrimination, but it’s too amorphous. We don’t really know what it is. So Bakke didn’t start off as a diversity case. It started off as a discrimination case as looking at the history of discrimination toward non-whites, particularly Blacks. Bakke sort of turned us to look not at discrimination per se, but to look more at diversity. In the dissent, Justice Jackson and others make it clear they want to turn back and look more at that discrimination. So there’s a lot that could be said. Well, let me just say this: The American public is actually quite confused. It’s a complicated issue, understandably. If you look at the data, and I did preparing for this talk, this case was brought by Asian Americans. Asian Americans as a group favor affirmative action. Let’s just let that sink in for a minute. As a group, Asian Americans favor affirmative action, but Asian Americans as a group are not in favor of using race as a plus factor for admissions.

So you may say, “Well, how can you have both of those things?” You favor it, but then you don’t favor the application. It’s complicated. Part of it is people don’t really understand. Sometimes people don’t understand that K-12 continues to be segregated under the imprimatur of the court and the court’s saying unless you can prove that it’s intentional and … The fact of segregation is not a constitutional issue right now. And so we have, again, schools segregated. I’ll stop because I know Professor Cashin will talk about this. And it’s not, again, just separating people from each other. It’s the segregation of opportunity, or what Sheryll calls opportunity hoarding. So it’s a messy, messy thing. The court’s opinion is important, but it’s not the last word. The public will be debating this issue, trying to understand what does fairness and equality really mean. If it doesn’t mean this, does it mean something else? And that’s potentially a useful discussion. We need to have that discussion.

Stephen Menendian: Thank you Professor powell. Let’s bring Professor Cashin in. Professor Cashin, you’ve written extensively about these issues. Your most recent book really tried to grapple with how do we unwind and remedy structural racism. So given that and your other work, what does this ruling mean for non-public institutions and for the larger project of remedying systemic and structural racism?

Sheryll Cashin: Well, first of all, thank you for having me. I’m going to answer the latter part of that question about what does it mean for responding to structural racism and frankly, public and private entities are implicated in that. And as Erwin made clear, public and private institutions are covered either by the 14th amendment or by Title 6 of the Civil Rights Act. And as a symbolism, this is the way where john started. My biggest worry about this case is the symbolism and that I think by putting its official and imprimatur on a colorblind constitutionalism, suggesting I think errantly, that the 14th amendment demands colorblindness. I think the worst aspect of it is it’s going to encourage more litigation by very conservative entities. I disagree with john when he says these cases were brought by Asians. This case was initiated by … Is it Edward Blum or Edward Bloom? Is it Blum or Bloom?

Does anyone know? It’s spelled B-L-U-M. But anyway, Edward Blum, I believe. This is the seventh and eighth case that he initiated. He went out and created SSFA and recruited people to join and his organization has already filed lawsuits challenging DEI, diversity and equity and inclusion efforts on the part of corporations and corporate boards. So when it comes to addressing structural systemic inequality, which is the result of a century of intentional government action and intentional anti-Blackness, frankly, that’s what my book and research is about. What’s frightening to me is that people will use this case to say under the 14th Amendment and the Civil Rights Act, you can’t do things that are race conscious. And they will interpret and go farther than the Roberts majority actually said. And so it’s going to inhibit any actor, state actor or public actor, private entity, from being innovative and bold in trying to remedy structural racism, systemic inequality. And it could be just the political rhetoric around this case will be enough to temper efforts at being equality innovators. So that’s one of my concerns. And we already are seeing litigation attacking facially race neutral efforts to be more inclusive. So I hope that’s responsive to your question.

Stephen Menendian: Yes. I’m going to follow up with you before moving back on. But I think what Professor powell was referring to was that the plaintiffs that Edward Blum had drafted into this were ostensibly on behalf of Asian Americans, specifically in the Harvard case. That Asians…

Sheryll Cashin: No, I agree with the plaintiffs, but I just want to be clear, I think we should be clear that it was initiated by Blum in terms of he has developed a career in recruiting people to sue like Abigail Fisher and hooking them up with lawyers who will represent them.

john a. powell: I completely agree with you. I mean this is obviously a long game that’s really been in place since Brown. The right wing was very unhappy with Brown. There was a revolt in the country and they’ve been chipping away at this ever since. And Blum is just the latest expression of that. And also the notion of structural and systemic racism is under attack, which is actually interesting. I mean if you think about what the court is partially saying, what they’ve been saying since Washington v. Davis, and they said more forcefully in Bakke, we don’t recognize societal discrimination. Or we recognize it, it’s just too amorphous. And now you have states basically saying you can’t teach. I mean, that was one of the aspects of critical race theory was to say a lot of racial hierarchy, a lot of racial subordination is not driven by the bigot necessarily or the intentional act.

It’s actually baked into our structures. That shouldn’t be controversial. You think about the American Disabilities Act. You don’t have to prove intent. You say if you go to a building and you don’t have a ramp, you have to do something. You don’t have to prove that the person who designed the building designed it with the purpose of keeping people in a wheelchair out. You’re saying the building is doing that work. And when we look at it, we know through mortgages, through redlining, through zoning, through housing, there are all these structures that are aligned to maintain and exacerbate racial disparities. But the court for the most part is saying, “We’re not going to look at that. You have to prove that someone intended for that.” Which is crazy. In a sense, from my perspective, critical race theory, to the extent that it relies on structures and systems, actually is a generalist statement in some ways. It’s saying we’re not saying white people or anyone is necessarily a bigot. We’re saying these systems work in a certain way and they should be actionable.

Sheryll Cashin: And I’ll just say quickly, that’s what I find most offensive about this opinion. That it says plainly, the Roberts majority, that the 14th Amendment cannot be used to remedy … I mean, Congress can’t invoke the 14th amendment to remedy societal discrimination. And it’s kind of ironic that the group Black Americans for whom the 14th Amendment was crafted to render them equal citizens, I think now will get the least protection of any group when we face societal discrimination at every turn as you listed it. From mortgages to separate and equal schools or whatever. And to delegitimate the enterprise of government trying to redress structural segregation. And then if you take this to its illogical conclusion, then when a school board tries to redraw the districts in a race conscious way to create integrated schools in a way where people who have been advantaged to attend poverty free schools will claim colorblindness requires us not to look at that. It’s like we’re in la la land.

Erwin Chemerinsky: I mean, the Supreme Court ignores the tremendous difference between using race to harm minorities as opposing using race to remedy past discrimination and enhance diversity. When John Roberts tries to invoke Brown v. Board of Education, he ignores that Brown was dealing with laws that mandated segregation. They were all about subordinating a racial minority as opposed to what Harvard and North Carolina were doing, which was about trying to remedy past discrimination. It’s a historical in terms of going back to the 14th amendment’s origins. The Congress that ratified the 14th Amendment adopted so many race conscious programs like the Freedman’s Bureau that we would today regard as affirmative action. The justices who consider themselves originalists completely ignore that history. I also think it’s worth a mention of how we got to this point. It was Justice Powell in Bakke who rejected the idea that there could be affirmative action to remedy the history of discrimination. And the Supreme Court was then pinned to the corner that affirmative action to be justified had to be based on enhancing diversity. I think that was one of the tragic flaws of Bakke. And now what the Supreme Court has said, you can’t have affirmative action for diversity either.

Stephen Menendian: I think we should turn to what do we do about this? What do institutions, what do other corporations … There has been an attack not just in the courts, but also in the legislatures of many states on DEI, on these various equity initiatives. But let’s look forward in two steps. The first step I want to burrow into where the law may be headed. The second step, what are the specific strategies, what are the possibilities and tactics that equity advocates can use to try to promote diversity, maintain, sustain diversity going forward and foster it within their communities and institutions? On the law, let’s start with that. The Roberts court, particularly with Justice Kennedy on it, had consistently drawn a bright line between policies and the administration of policies that employ racial classifications and those that were merely race conscious but did not employ racial classifications.

And the entire framework of strict scrutiny was in fact encouraging if not compelling the exploration of so-called race neutral policies in pursuit of racial diversity. Sheryll, you’ve written about a case that’s been bubbling up, I believe in the fourth circuit, called Coalition for TJ. Can you speak about where you see this line? Is this line going to be blurred or dissolved in the near future or do see this court holding firm that advancing diversity writ large, including racial diversity, is going to be OK as long as there are race neutral means to achieve it? And we’ll start with you, Professor Cashin.

Sheryll Cashin: OK. The number one ranked public high school in the country is Thomas Jefferson High School in Fairfax, Virginia. Actually, no, it’s located in northern Virginia. It’s a tech, STEM-oriented school. And after George Floyd was murdered, the Fairfax Board of Education, which manages the school, changed its admission criteria, scrapped high stakes entrance exams, and basically implemented a policy that’s similar to the top percentage plan in Texas. Basically it guaranteed admission to the top 1.5% achievers at all of the feeder middle schools across the region. So everybody would get at least some of their highest achieving students in there. And that transformed the system and greatly increased the racial diversity of the entering class and disrupted a process in which basically the most elite feeder schools in one county were sending the majority of students there. But it did reduce Asian representation in the entering class from like 70% to 54%.

So here Asian parents sued and the Pacific Legal Foundation helped them. The lower court and the fourth circuit found that this completely facially neutral new entrance process survived a discrimination challenge on the part of Asians. It didn’t violate the 14th amendment and I commend the court of appeals opinion to anybody who wants to read it. It does suggest that pursuing racial diversity, admitting that you’re trying to get more racial diversity will not be fatal as long as you use facially neutral methods. And the court in this UNC and Harvard cases, I think they were intentionally vague. They didn’t say explicitly universities continue to have a compelling interest in the racial diversity of their classes. They didn’t say that. The only thing that’s abundantly clear is you cannot consider the race of the individual student. So I actually think, I hope, that when this case comes to the Supreme Court challenging the fourth circuit’s reasoning that even this Roberts majority would uphold it or at least Roberts plus Kavanaugh and the three liberals would uphold it suggesting that very innovative facially race neutral strategies like the one at UC Davis’ medical school which has a disadvantage index that heavily helps disadvantaged people of all kinds, could survive a anti-discrimination challenge. I’m sorry, I was so…

Stephen Menendian: No, that’s great. I want to get to the disadvantage index in the strategy section, but sticking with the law for a moment and bringing this to the dean. The same question, just clarifying for the audience though that by racial classifications and face neutral, we are saying that where policymakers or administrators use racial classifications, it’s the use of race as a selection criterion, whereas the race neutral mechanisms even in support or promotion of racial diversity is non-racial selection criteria. Dean, go ahead.

Erwin Chemerinsky: We don’t know is the answer to that question. On the one hand I agree with Sheryll is what I hope the court will do. On the other hand, I could imagine the Supreme Court saying if a policy is adopted with the intent of benefiting minorities and it is the effect of benefiting minorities, then it’s treated as a racial classification. Think of the Texas top 10% plan where they took the top 10% of the high schools in the state, Texas sufficiently segregated that would produce some diversity. Justice Ginsburg in an opinion raised the question of even though that’s racially face neutral, would it be regarded as a racial classification? We don’t know the answer to the question. In her dissent, Justice Sotomayor said there could be benefits given on the grounds of socioeconomic status. The problem the University of California discovered was just giving a benefit based on socioeconomic status doesn’t yield racial diversity.

And simple arithmetic explains why. There’s a larger percentage of African American and Latinx individuals who are economically disadvantaged than white individual economically disadvantaged. But in sheer numbers there are more white individuals with economically disadvantaged compared to African-American and Latinx individuals. There’s one passage at the end of Chief Justice Roberts’ opinion that may open a door to a way to pursue diversity, but it’s ambiguous. Let me read you the exact language. Roberts writes, “Nothing in this opinion should be construed as prohibiting universities from considering applicant’s discussion how race affected his or life, be it through discrimination, inspiration or otherwise, but universities may not simply establish through application essays or other means the regime we hold unlawful today.” So if a university says, “We’re looking at this person’s race as a way he or she overcame discrimination or found inspiration based on it,” that’s OK. It’s not OK to give a preference solely based on race. I’m not sure how any court is going to figure out what was permissible and impermissible in that regard. So there may be an avenue open from that language in Roberts’ opinion.

Stephen Menendian: We’re going to shift to the second part of the question now, but I just want to point out that even under Proposition 209, California courts have specifically upheld diversity enhancing K through 12 policies in Berkeley Unified that use race in a general way rather than as a racial classification. So there is precedent for courts upholding these kinds of things, but it sounds like we’re just unsure where this court would land on those issues.

Let’s turn to the second part of the question then I’m going to start with Professor powell. Professor powell, in 2014 you co-authored an article for the Journal of Michigan Law Reform explaining how to construct more sophisticated admissions policies that would look at a number of factors that look something close to what is being proposed in terms of these adversity indices. The SAT had briefly floated the idea of creating an adversity index to go with the SAT score itself, but then after pushback, scuttled that. What do you see as some of the strategies or pathways forward that institutions of higher education or other institutions and policymakers could use more generally?

john a. powell: Well, and your audience may know, Stephen has been involved in a number of those efforts. We have a general template, what you call targeting universalism, that actually looks at how people are situated and basically it looks at what we would call race neutral factors, by and large to say, on one hand, we say race is socially constructed. The question is how. And so it’s constructed by where people live. It’s constructed by how people are treated. So part of the thing is to look at those factors and I guess I would say it’s clear under old law, and Kennedy encouraged this, that you could construct a matrix of conditions that actually would guarantee racial diversity, including Black diversity. So under the old law, that’s very doable. I think Erwin is right, we’re in this gray area. Part of the problem is this.

That diversity is not required. Affirmative action’s not required. And so if you are an institution of higher ed and someone says, “We can adopt this policy and probably not be in violation of the law,” it’s pretty clear that the Pacific Foundation and others is going to come after you. It will have a chilling effect. So even if it’s permissible, and frankly I think it is at least arguably, and I think more than arguably I think it is, it’s not a slam dunk. Are you willing to risk a lawsuit? Win, lose or draw, lawsuits are very cumbersome, expensive. And so I think if we want people to actually do some of these innovative things, we have to hold them harmless. We have to support them both in terms of methodology. And on our website one of the memos that you did, Stephen, in terms of looking at the different ways of thinking about race neutral, targeted race, which ones violate the law, which don’t, we talk about a thousand different programs of looking at alternatives.

So we certainly could come up with alternatives. The problem is that old thing of people say you have to jump over a stick in the dark. You don’t know how high it is, so you don’t know how high to jump. I would say based on the old stick, we could do this. On the new stick, it’s not clear. And I don’t want to be vitriolic or whatever, but it’s clear to me that the court is not being completely genuine. I would even say completely honest. And so it’s clear that some members of the court would push back and they talk about … They just radically changed precedent without any clear justification. And they say to the institutions, you the institution not only has to do this, you have to come up with a way that allows us to measure and hold you accountable. And they spend a lot of time talking about when will it end?

And I say it’s like affirmative action to some extent is like chemotherapy. You have a cancer patient and the patient says, “When will the therapy end?” And ultimately you say, “When the cancer is done.” We don’t say, “We’re tired, so we’ve done … Or antibiotic. We’ve done two rounds, we’re going to stop.”

But the cancer is still here, the disease is still here. The racial stratification, the racial subordination is not just here, in some ways it’s accelerating. Last thing: Anti classification is a weird concept. So coming out of Brown is a big debate. What’s the court doing in Brown? Is it saying segregation is bad or is it saying the classification of students is the main injury? And the conservatives wrestled us to the ground, although anti classification can mean something different, in saying it’s noticing race in the first instance by the state that’s bad.

And the court has said an all-Black school that’s segregated that don’t have resources, unless you can show intentional classification, it’s not an injury. That it’s not the segregation in fact, it’s the intention that matters. And that’s not the way we … We’re living with climate change here in California and across the country. No one intended to change the climate. No one set out to make it hotter. But that’s what our actions are doing. And through all the work we do with sociology and implicit bias, we know intent is problematic. But I think there is some way forward. I think we should pursue those ways, but I think we also have to help institutions that will be gun shy, that will be afraid to move forward and not just run away from this.

Stephen Menendian: Bringing the dean back into the conversation. Given again your role in an institution, a critical institution of higher education, what specific strategies do you think institutions like your own or other similarly situated institutions should employ to sustain or maintain the diversity that they have instead of experiencing these drop offs? And what supports are needed to advance those strategies that may or may not exist right now?

Erwin Chemerinsky: As I said at the beginning, it’s important to remember that public universities in California have had to deal without affirmative action since 1996. Schools in Michigan and Washington State have had to do this and a lot can be learned from their experiences. And I think those and these public schools have a responsibility to help private and public schools across the country. Keep in mind, when you’re dealing with admissions, there’s those who apply, there’s the actual admission decisions, and then there’s who you yield. And there can be diversity efforts at each of these stages. College universities must much more aggressively create pipeline programs and recruit students of color to apply. We need to find at the admission stages, proxies that will yield diversity that the court’s likely to accept. And this is what Sheryll was talking about. And we need to have strategies to have those students come.

It takes concerted effort, it takes great deal of trial and error. After Prop. 209 was adopted in California, the number of Black and Latinx freshmen at UCLA and Berkeley fell by 50%. It took UCLA 19 years from 1996 to 2015 to get back to its pre-1996 levels of diversity. I worry as john just said, that too many colleges and universities will give up, but there are things that can be done. I’ll use my example as an illustration. When I came here as dean in 2017, there were only 12 black students in an area class of about 300. And to me that was terribly dismaying and I worried it would create a cycle where we’d attract even fewer Black students. We looked at what was our problem. Thankfully we were getting applications and thankfully we were admitting the students, but they weren’t coming here. They were going to other law schools.

So we created an aggressive strategy of reaching out to those who we accepted of all races, but targeting those who would be likely to be persuasive to them, alumni, faculty, students. We increased the number of Black students from 12 to 28 in a year, to 34 the next year to 42 the following year. We did not engage in affirmative action, we did not violate Prop. 209, but we found a way to achieve diversity. These are the kind of things that schools are going to do across the country. And it can’t just be our taking more students away from other schools. We’ve got to find a way of increasing the pipeline from the very beginning.

Stephen Menendian: Thank you. Professor Cashin, we’ll close out this question with you and then bring some of the audience questions in. But really drilling down, you’ve thought a lot about this. From adversity indices to race proxies to other tools and tactics and not just within higher ed, but what can corporations, what can cities and hiring strategies do? What do you see as the most promising tactics or strategies for promoting or sustaining diversity in light of this decision?

Sheryll Cashin: Well, I want to note that Republicans and Democrats together came up with the innovation of top percentage plans. It was the Texas top 10% plan. Now it’s the top 6% plan. Republicans who represent working class districts that none of their kids were getting into UT Austin support this plan. OK. So there’s a politics there. There’s top percentage plans in Florida. I think there’s one in California. I think that people should try to adopt these formal top percentage plans and build bipartisan coalitions among people who represent mutually low opportunity, mutually locked out places. Build them, put them in place, build a coalition for them. They do help create diversity. They’re not a panacea. I think standardized tests should be optional. Alternatives. I’m not saying these are a proxy for race. These are just proxies that can create diversity. Zip code or school disadvantage.

Acknowledging that overcoming structural disadvantage is itself merit, is itself a form of showing resilience. So place-based plus factors. Plus I prefer low wealth v. low socioeconomic as a factor because low wealth reflects the century of structural disadvantages. Anti-Black intentional policies that reduce the possibilities for Black Americans and others to develop wealth. I would scrap legacy preferences as hard as that is to say, as a mom who’s got two Black boys who are about to apply to college. But I think the political case for scrapping these preferences have never been higher right now. And a lot of places that have banned affirmative action a while ago have gotten rid of legacy preferences. As to corporations, if you care about diversity, it is at least in theory neutral to recruit more at HBCUs, at colleges that have community colleges and places that have high populations of historically underrepresented people. You can do that and that’s not race per se. And I’ll stop there.

Stephen Menendian: And those were strategies that were also mentioned by members of the court in this decision. Partnering with community colleges and so forth. We’ve got some great questions from the audience and keep them coming in. One of the questions is, is this going to trigger a larger rethink around higher education in general? You’ve mentioned scrapping legacy admissions. This was something that came up in the Harvard case. But one of the questions specifically here under that header was did the University of California’s dropping the SAT/ACT requirement have any known effect on the demographics who applied and who were admitted? And an interesting codicil of that is that the personal statement then takes on somewhat greater significance. And that’s something that the court opinion here left open as could be a little bit more race conscious as long as it wasn’t race specific. So I’ll invite anyone who knows the answer to that question about what effect does SAT/ACT have and will this trigger a larger rethink.

john a. powell: Stephen, let me jump in here and say a couple things. First of all, what Sheryll said is really important because these are not just legal questions, these are political and normative questions. And we shouldn’t just concede the courts made a decision so now we can do whatever. I mean, what do we want and need as a society that’s deeply fractured, deeply polarized, including along racial lines. And it’s also interesting to note that Justice Roberts in a footnote basically said, we’re not saying the military. This doesn’t apply to the military. He’s saying that diversity might be important in military. Military argues that it’s a matter of national security. And the question is, if it’s so important in the military in order to have a well-functioning military, why isn’t it important in higher ed? If we defer to our generals and admirals, why won’t we defer to our chancellors and presidents?

These to me are clearly political questions. Clearly political questions. And the court is stepping into, as a number of dissents said, political realm. So I think it should be a rethink. I think we should think about who are are as society, how do we live up to our best values and where we’re going. And a society where large groups of people historically shut out, continue to be shut out is extremely problematic. We should not rest on our laurels with that. And the final thing I’ll say is that these are complicated questions. I think we should actually … Not too much time, but we should develop strategies to figure out how to respond in a complicated, sophisticated way. And as Erwin suggested, we need to then track it to see if it’s working.

With the SATs and other standardized tests, it’s probably too soon to know. It will take some time. And the last thing I’ll say is this: All these students we’re talking about are more than capable of doing the work. We’re not talking about letting in students who aren’t qualified, we aren’t talking about students … There was one a couple, few years ago, there were 900 students in California that had perfect grades who couldn’t get into Berkeley and UCLA because the entering class was like 4.3, meaning you take AP classes. So they were at schools where there were not AP classes. They had done everything they could have done and those students would’ve been profoundly successful if they’d come to Berkeley and UCLA. So we have a system that’s really skewed in some ways. And part of it is that we’re not providing enough opportunity. All those students should have access to better schools. But yes, I hope this is a larger discussion that we engage in.

Erwin Chemerinsky: I very much agree with john, and I especially want to emphasize what he said. It’s too soon to know whether eliminating standardized tests or going to test optional will enhance diversity or maybe even hurt diversity. So far, diversity has increased at Berkeley without standardized tests, but it was also increasing even when there were standardized tests. You mentioned, for example, Stephen, looking at essays. We can do that in a law school where we get 8,000 applications, but Berkeley for its freshman class got 150,000 applications. Reading essays and giving them substantial weight becomes much more difficult in that context. So I think that what john says is we need to have a much more systematic rethinking of admissions processes and looking at standardized tests is part of that. We’ve got to look at all of the factors in deciding who gets into very selective colleges and universities.

Stephen Menendian: Since it’s so difficult for many of these faculty admissions and review committees, which are maybe small staffed, understaffed and overwhelmed with applications, should there be another institution like the college board, which had again proposed this adversity index? Should someone step into the breach much like there has now a common application to help facilitate and support these efforts? And if so, what would that look like in your opinion?

Erwin Chemerinsky: I think that’s one of many avenues to pursue. I think trying to come up with an adversity index is going to be very political, as john said, and tremendously controversial. But I would welcome the college board or at the law school level, the law school admissions council working to develop that. And I would hope that multiple different approaches would be developed so we can see what works best. But again, I go back to what john says, it’s time to carefully study, time to carefully rethink all aspects of the admissions process.

Stephen Menendian: Professor Cashin, same questions.

Sheryll Cashin: I’m sorry. You’ve got to repeat the questions.

Stephen Menendian: Just given how difficult it is, the burden on many of these institutions and these faculty admissions committees, what supports are needed to help them sustain and promote diversity? And also what can other institutions do? So should the college board, should the law school admissions council … What is needed now in the wake of this decision and what do you think about the larger rethink?

Sheryll Cashin: Yeah. I don’t profess to be an expert on the specifics of … Let me just say, would it be useful for third parties to develop model indices that make it easier for an institution to adopt this diversity index or that one or this disadvantaged index? Yes. And what will happen if you have multiple players trying to do that and offer it up, eventually, perhaps one will emerge as the easiest, most effective way of doing this. And I do think in this moment where inequality has spiked in the same decades in which affirmative action has been attacked, that there will be a broad constituency of struggling people, working class people, middle class people who would support the idea of an adversity index.

Because a very small sliver of metropolitan populations live in the highest opportunity places. And it’s their practices that reify … A lot of the practices of the admissions process, particularly calling a standardized test score merit, reify existing advantage, particularly the wealth of the parents. So I think the short answer is yes, that would be helpful. I want to say, and then I’ll be quiet, there’s a part of me that worries that so much energy is going to be spent on trying to innovate around admissions to highly selective places when this moment also could be used to mobilize a politics, say, why don’t we start disrupting the separate and unequal pipeline? And yes, why don’t we like our competitors in OECD countries, create politics to put more resources into the most disadvantaged places?

Stephen Menendian: Well, Professor Cashin, we don’t want you to be quiet. We want you to continue contributing. But also one of the things that universities discovered is that when the common application was created that made it easier for students to apply to multiple universities, the number of applications skyrocketed in any given institution. So it can facilitate and make things easier on the one hand. On the other hand, it can actually increase the burden. But I think the challenge is these admissions committees just don’t have a lot of the contextual data that you have mentioned. You pointed out wealth. The federal government doesn’t even collect systematic longitudinal data on wealth. There’s a survey administered by the Federal Reserve called the Survey of Consumer Finances. So where can they get this data if these other institutions don’t step in or if it isn’t supplied otherwise? john, go ahead.

john a. powell: Two things, Stephen. One, we’ve been saying, “Let me just look at this carefully.” And I think we should. So we don’t have to solve it on … I mean the country, we’ve done incredible things when we put our mind to it. How quickly we came up with a vaccine for Covid. So I have no doubt that if we wanted to do it, we could do it. It would be costly. It should take a little time. But at the same time, it’s deeply, deeply political. It’s not like if we come up with a way to promote diversity. Think about it. There are half a dozen states right now that the concept of diversity itself is under attack. That the equity is under attack. And so from my perspective, the right is not done. They’re going to keep pushing. And so part of it is for us to put a stake in the ground and say, “This is who we are as a country.”

This is what we believe in. We believe a country has to be open to everyone and we believe our history matters and we believe … I guess what I’m saying, it’s not just the technical problem. It is that, and the court keeps changing the conditions. You have to do this, you have to do that. Prove this, prove that. And Erwin made reference to it. We’re living under the Trump court. And a lot of us, myself included, not a big fan of Trump. Probably some of the listeners are. But this is Trump’s court and they’re not done. And it just shows how important the court is. And as Kagan said, Justice Kagan, in a case that was just decided about the student loans, she said, “We’ve gone way beyond constitutional law. We’re venturing into a whole nother area.” Meaning the court. So I think we have to sort of broaden this discussion. In this case, I agree with Professor Cashin. It’s not just even bringing in different populations. We really are at a pivotal point in the country. This is more than about affirmative action. This is more than about what happens to high performing Black and Latino students. This is what happens to America.

Stephen Menendian: Well, we have time for I think about one more question. I think it would be a mistake if I didn’t take the opportunity to ask the dean who has written a book about originalism about, and zooming in for a moment, the dialogue between Justice Jackson and Justice Thomas over the original intent of the 14th Amendment, which was not really taken up by the majority of the court, but this very interesting dialogue between the dissenter and concurrence. Dean, what do you make of that? And given your critique of originalism, what’s your overall view of this?

Erwin Chemerinsky: I was surprised at how sharp the tone was and the exchange between them. It’s obvious that they draw very different lessons from history and from their own life experiences. I think originalism is terribly flawed as a theory. And one of the reasons is that conservative justice who profess to be originalists follow it when it gets to the results they want and ignore originalism when it doesn’t get the results they want. And I think the court’s decision in the affirmative action case is such an example of that. The history of the 14th Amendment, if we wanted to follow originalism, would lead us to approve race conscious programs to remedy discrimination. I mentioned earlier things like the Freedman’s Bureau created at the time. It’s telling to me that the originalists on the court, including Justice Thomas and Justice Gorsuch and Justice Barrett pay no attention to that history.

Stephen Menendian: And john, you opened by mentioning that one of the larger backdrops of this is the meaning of equality. I wonder if you and Professor Cashin could speak about the different expressions of that as we close out.

john a. powell: Yes. And the Constitution, it’s so interesting. I won’t go into Erwin’s expertise, but many originalists go back to the original Constitution and they ignore the Civil Rights Constitution, which was a real break. I mean there was a very different mood in Congress. It was much more what we now call liberal or progressive, but also the very concept of equality. I mean, it’s interesting that Lincoln made mention in the Gettysburg address, made suggestion that the Constitution was flawed, the original constitution was flawed because it didn’t embrace equality. He actually referred back to the Declaration of Independence where Thomas Jefferson penned the concept of equality where he says, “We hold certain truths to be self-evident”. And he said all men. He meant men. But we’ve been fighting over what equality meant ever since then. And as you know Stephen, I’m working on an article now.

Our concept of equality largely comes from Aristotle and Aristotle recognized equality. He said, “Fairness and justice requires that when people are situated the same, you treat them the same. But fairness and justice requires when people are situated differently, you treat them differently.” That’s Aristotle. And what the court has refused to do is to acknowledge that some people are situated differently. It’s like we’re going to treat everybody the same. We’re going to be colorblind. We’re really saying we’re going to be contextually blind. We’re going to be structurally blind. We’re going to be institutionally blind. Which locks in the status quo. And we shouldn’t give up on equality. It’s really incredible concept. Relatively new in modern society with the United States and France being the two countries that embraced it. But we have to interpret it. We have to reinterpret it and not leave it up to the courts or even historians to say what equality means. It’s an important concept, a founding concept in our country. And I think even hearkening back to Aristotle, he still has something to teach us.

Stephen Menendian: And Professor Cashin, we’ll give you the last word.

Sheryll Cashin: Well, it’s impossible to follow john powell, isn’t it? But let me just say I agree with much of what he said. The radical Republicans that drafted the 13th, 14th, and 15th Amendment, but the 14th Amendment in particular, introduced the concept of equality into our Constitution for the first time. We didn’t have it. We had the Declaration of Independence, but there was no constitutional guarantee of equal protection or equality at the founding. And the only reason we got that amendment is because we had a civil war that killed 600,000 people and the Confederates had seceded and were not in Congress at the time. So we had in Congress at the time, for the first time in the history of this country, a Congress which was not committed to slavery. So now we’re like the second founding. We’re actually saying, “OK, so if slavery’s off the table, what’s the society we want to create?”

And this court has been hostile to the project of reconstruction from the very first day. In some ways we were fooled by the Warren Court. We got the Warren Court who was with that program, but the norm for this court has been hostility to the radical Republicans’ beautiful, robust conception of equality and a federal government that would actively make that happen. And colorblindness really is bringing us back to Plessy and separate but equal where we pretend there’s no structural inequality and disallow lower courts or political actors to acknowledge and try to remedy what’s going on. So do you think I’m upset about this?

Stephen Menendian: Well, we’re all disappointed with this decision, but there is hope. There are possibilities. I think we’ve covered a lot of interesting ideas and there’s more to come. I’d like to thank these phenomenal panelists, professor john powell, Dean Chemerinsky, Professor Cashin. This has been a production of the Othering and Belonging Institute. We’d also like to thank the Berkeley Law School for sponsoring this. And we have a legal guidance that we’re issuing today that can provide some suggestions and helpful guidance looking forward for institutions who are grappling with these issues. We’ll drop that in the chat right now. And thanks to all of you for joining us today on this beautiful Monday, right before the 4th of July holiday. So please take good care and we look forward to seeing you again in the future.

[Music: “Silver Lanyard” by Blue Dot Sessions]

Outro: You’ve been listening to Berkeley Talks, a Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at UC Berkeley. Follow us wherever you listen to your podcasts. You can find all of our podcast episodes with transcripts and photos on Berkeley News at news.berkeley.edu/podcasts.