"The Diversity Lie" 20 Years Later

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Sam Fendler:  Hello, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today, we're excited to host "The Diversity Lie: 20 Years Later," with professors Brian Fitzpatrick and Randall Kennedy. Professor Brian Fitzpatrick is the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School. His research focuses on class actions, federal courts, judicial selection, and constitutional law. In 2003, after two clerkships including one on the Supreme Court with Justice Antonin Scalia, Professor Fitzpatrick published "The Diversity Lie," in the Harvard Journal of Law and Public Policy while he was an associate at Sidley Austin.

 

Professor Randall Kennedy is the Michael R. Klein Professor at Harvard Law School where he teaches contracts, criminal law, and the regulation of race relations. He has published well over a hundred books, articles, and other commentary pieces. He too is a former Supreme Court clerk having clerked for Justice Thurgood Marshall earlier in his career. Professor Kennedy also counts Professor Fitzpatrick as one of his former students. So we thank him for joining us today and for his continued interest in his students. Our moderator today is Ted Frank. Ted Frank is the Director of Litigation and Senior Attorney at Hamilton Lincoln Law Institute. Ted is a leader in the class action field who has been at the forefront of several landmark cases, and he is an executive committee member of The Federalist Society's litigation practice group.

 

If you'd like to learn more about today's excellent guests, their full bios can be viewed on our website, fedsoc.org. After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please place it into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that as always, all expressions of opinion today are those of our guest speakers and not The Federalist Society. With that, Ted, thank you very much for joining us, sir, and the floor is yours.

 

Ted Frank:  Thank you, Sam. Sam sells Brian short because he's also a member of the litigation practice group executive committee. But he has a more impressive resume than I do so it fell off, I guess. In "The Diversity Lie," in volume 22 of the Harvard Journal of Law and Public Policy, Professor Fitzpatrick argues that while universities use diversity as a legal justification for racial preferences, that justification is illusory and insincere and should not carry legal weight. 20 years later, of course, the diversity question is before the Supreme Court in two cases brought by Students for Fair Admissions against Harvard and the University of North Carolina. Professor Fitzpatrick will discuss his article, how it's held up over the last 20 years, and implications going forward including in this term's likely decisions and beyond. Professor Kennedy will respond, and we'll take some questions. The floor is yours, Professor Fitzpatrick.

 

Prof. Brian T. Fitzpatrick:  Thank you, Ted, and thank you to Professor Kennedy for doing this today. I must say that Professor Kennedy was my favorite professor in law school. He's also one of the kindest and most generous people I know, and I just am very grateful for your time today. And thank you, again, Ted, for organizing this and offering to put this together. It's an honor to be here today.

 

The thesis of my provocatively titled article 20 years ago was that the educational benefits of diversity is not the real reason why universities use preferences for certain racial groups in admissions and hiring faculty, etc. The real reason why universities do it is social justice. Racial justice, social justice -- they want to make up for the very short end of the stick that many of our racial groups have had living here in America. And this is how they do it and the educational benefits are a post hoc litigation driven justification for these preference programs.

 

And I argued in the article that this makes a difference doctrinally. When the Supreme Court applies strict scrutiny to racial programs, in order for something to constitute a compelling interest, it has to be the real reason why you are engaged in the racial classification. It cannot be a litigation driven reason. And so I argue that the universities that use these programs should lose under strict scrutiny simply because the educational benefits justification is not a sincere reason why they are adopting these programs.

 

Now, 20 years ago, I argued that the reason was not sincere because of a number of considerations. I think all of those considerations except for perhaps the first one are even more true today than they were 20 years ago. So number one, I argued that when you actually ask academics whether they're supportive of preferences on the basis of race to reap these educational benefits, they usually say, "No," that the real reason they pursue these preferences is because of social justice, racial justice, not because of the educational benefits.

 

Number two, the pursuit of racial diversity, I argued, has undermined, not facilitated, educational benefits. And the reason for that is because in order to make the various racial groups feel comfortable on campus after they were admitted through the preferential programs, the universities put into place various speech restrictions so that the members of certain minority groups, racial groups would not get offended by hearing discussions that they did not like. And in addition to these speech restrictions the universities have put in over the years there was also segregation that was facilitated on campuses by university administrators. Rather than bringing the races together where they could learn from each other, universities segregated the races through separate orientations, separate dormitories, separate graduation ceremonies. And so I said all of this shows that the universities really aren't educational benefits of diversity, they're after racial justice and again, that should matter doctrinally.

 

Where are we today? I think that everything I said back then is even more true today with the possible exception of the academics. I do not hear academics admitting anymore that racial justice and social justice is the real reason they support preference programs. They are talking the talk now of diversity in the way that I don't think they were 20 years ago. But with regard to everything else, that everything else the university does is actually undermining the educational benefits of diversity, I think we have gone well beyond what the facts were 20 years ago.

 

So we have the rise now of these diversity, equity, and inclusion offices and programs and it is widely acknowledged that these diversity, equity, and inclusion, DEI, efforts are intention with viewpoint diversity. The meaning of the word "inclusion" in the DEI is protecting certain groups from ideas that are harmful to them. They do not feel included as part of the university if you can harm them with ideas that make them feel under attack or uncomfortable or not welcome. And these DEI offices have given rise to or otherwise facilitated the cancel culture that we are very familiar with in our country and it's worse on universities than anywhere else. We all saw what happened at Stanford when a federal judge went there to give a speech. The students wouldn't allow the judge to speak. This is not facilitating the educational benefits of diversity. This is shutting down viewpoints that you do not like. And that is what the modern DEI efforts are about. They are not about facilitating viewpoints. They are about protecting people from feeling unwanted on campus.

 

And I'll just give you a few examples from my own university, Vanderbilt University, Vanderbilt Law School. We now have an office at Vanderbilt, it's called the Equal Opportunity and Access Office. It is dedicated to investigating students and faculty who are accused of racial insensitivity. And I'll just give you an example. One of my colleagues went through a semester-long investigation because a student in one of her classes responded to a question that she had asked by quoting a sentence from the casebook. The sentence was from a U.S. Supreme Court opinion from the 1950s and the U.S. Supreme Court in this sentence used the word "negro" and a student quoted the sentence including the word "negro" and my colleague didn't do anything about that. And there was an investigation launched by a student into her conduct in that class for not doing something after a student used the word "negro." After a semester-long investigation, my colleague was not punished because the DEI investigator said it was her first offense and therefore, she would not be punished.

 

But this environment where you can hear a word that you don't like, even a word that's not offensive, and you can launch investigations against people, it has not only my colleagues scared about what they can do in the classroom, but it also has students scared. My students are afraid to oppose -- voice their opposition to affirmative action. They're afraid to voice their views about any number of things. And I'll give you another example on affirmative action, in particular, from Vanderbilt. The Supreme Court case against Harvard was actually argued by one of my former students, a very young graduate of Vanderbilt. His name is Cameron Norris. He clerked for Clarence Thomas. It's his second Supreme Court argument. I think he's like 34 years old. It's really incredible.

 

And he asked before the argument if he could come to Vanderbilt and do a moot court in front of our students where some of his old professors would grill him, get him ready for the argument. We've done moot courts like this many, many times. When I've had appellate arguments, I've had moot courts in front of the student body where my colleagues grill me. We've done this many times. I assumed there'd be no problem doing it this time but when our dean found out that there would be a moot court of our alumnus, Cameron Norris, the dean told me that that would be prohibited, that no university resources could be used to have this event, and if we wanted a moot court, we would have to do it off campus. It could not be done at Vanderbilt because the position of our alumnus was antithetical to the mission of the university. So here we have a brilliant former student and alumnus who could inspire so many of our current students at such a young age arguing such an important case and he was not let to set foot on campus to do a moot court because what he had to say was inconsistent with what the university wanted the student body to hear. So there's a lot of examples like this.

 

At Vanderbilt, we have brought I believe 15 people back to campus over the last two years to give job talks. These are faculty that we would consider hiring for tenure track positions on our faculty. We've brought about 15 people back over the last two years. Zero have been even a smidge right of center. There's no interest among my colleagues at hiring more conservative faculty. Vanderbilt has four right of center faculty out of 40. So we're about 10 percent right of center right now and that's enough as far as my colleagues are concerned. Conservatives are underrepresented in our faculty much more than any racial group is but there's no interest in diversifying the intellectual dimensions of our faculty.

 

The same thing is true of faculty workshops. Every week, the faculty invites a professor from another law school to give a presentation to us over lunch. And we have not had a right of center workshop in over four years since March of 2019. There's just no interest in hearing these viewpoints. There's no interest in hiring people who can share those viewpoints with our students. The only intellectual diversity we get at Vanderbilt is through The Federalist Society, a student organization. There's no institutional interest at all in viewpoint diversity. And so I think it is just as true today as it was 20 years ago, if not more so, that universities are not interested in education benefits of diversity. They are interested in other things, and I thought then and I think now that that means that these racial preference programs should fail strict scrutiny.

 

Now, I don't believe the Supreme Court is going to overrule Grutter on that basis. Even though my "Diversity Lie" article was cited in the brief to the Supreme Court, I don't believe that that's going to be the basis for any ruling against Harvard or North Carolina. Motivation is a factual question and the district court in these cases was not interested in that particular factual question and the Supreme Court's not going to be able to do anything about that on appeal. So I don't think that's going to be the basis of a ruling, but I do hope that Grutter is overruled for other reasons, and I can get into a little bit later what I think might happen if Grutter is overruled. But now I think it would be appropriate to give the floor to Professor Kennedy.

 

Prof. Randall Kennedy:  Thank you very much. I take it I can be heard okay. Great. Well, first of all, I would like to thank the sponsors of this forum and thank those who invited me. And I'd like to salute former student Brian Fitzpatrick who was an excellent student and he's obviously had a very impressive career as a legal academic and I applaud you for that.

 

With respect to your paper and comments, I have five points I'd like to make. Point one has to do with the title of your paper. You mentioned yourself that it's a provocative title and indeed it is, and I would like to focus a little bit on the word "lie" – "The Diversity Lie." I think that in discussions -- political discussions, jurisprudential discussions – sometimes the word "lie," it seems to me, is used too loosely. I mean, if somebody lies that means that they are -- I think properly understood that means that they are engaged in fraud. That means purposeful misleading. And that it seems to me should be distinguished from someone being, let's say, merely inaccurate or merely in error or merely saying something that they've been taught to say.

 

So my sense of it is that, yeah, there were probably people who -- especially 20 years ago -- who did pretty much what you said. I mean, they -- the Supreme Court said that the only basis on which the Supreme Court would -- Justice Powell he controlled the Supreme Court at a certain point. It was so evenly split. I think there were people who said, "Well, if the Supreme Court tells us we must talk diversity talk in order to uphold affirmative action, we'll talk diversity talk." And so I think there were a good many people who very self consciously had that belief.

 

Now, that was then. In the interim, there are a generation of students who have gone through the law schools, and they've gone to con law classes, and they've gone to other classes, and they've been told that diversity is important for better pedagogy. You get better classes, you get more interesting classes, they've been told that. They believe it. I think that there are a lot of people now, not only students, but I think that there are judges, I think that there are CEOs, I think that there are lots of people at various levels of society who truly believe the theory that we'll have better decision making if we have a more varied body of decision makers. That's whether the decision makers are jurors, whether the decision makers are members of a presidential cabinet, whether the decision makers are members of a faculty, whether the decision makers are people in a class. I think there are a lot of people who believe you'll have better decision making, richer discussion, a richer experiential reservoir that we can draw upon if you have people from various areas. People with different genders, different sexual orientations, different regions, different religions, different races, you have it. So I think that one thing that has happened or one thing that I think needs to be thought about here is well, what do people actually believe? I think there are a lot of people today who actually thoroughly embrace the diversity idea and they believe it. They're not putting on, they believe it. That's point one.

 

Point two, in your paper and in your comments, Professor Fitzpatrick is very tough on the universities -- very tough on the universities. His view is the universities are making this up, they're just saying what they think needs to be said in order to protect this social policy. You don't say much about the Supreme Court of the United States, however. The Supreme Court of the United States is the ultimate decision maker in the law here. The very idea -- why is it that people talk diversity talk? They talk diversity talk because Justice Powell, in his all-important opinion in Bakke and then Justice O'Connor in her all-important opinion in Grutter, they said, "We believe diversity. We think that this is a compelling justification. We will uphold policies in higher education that are based on diversity." Well, what about them and what about the Supreme Court? The Supreme Court has been the one that has ultimately made diversity such an important part of our political lexicon.

 

I agree with you that there's a lot of double talk. Yes. Yeah. Sure. There's a lot of double talk but everybody has participated in it. It's not just the administrators of the elite universities. Everybody has participated and this leads me to my third point which is, could it be that everyone has gone along with this fiction for a reason? Everybody has gotten something out of it. And by the way, could it be that everybody has gone along with the fiction for reasons which are largely good, frankly? That's my sense. My sense is that what? Has everybody been sucked in by the double talk? The justices haven't been sucked in by the double talk. They're mature, sensible people. They talk with people. They've read your article. Why is it that they've gone along?

 

I think that whatever else you want to say about diversity, it has a certain strength to it that lots of different people have recognized and tapped into. One of its strengths is its obfuscatory power. It has covered over certain things which a lot of people like. So one thing that -- why is it that diversity is so powerful? Why is it that it has come to the fore? I think it's come to the fore for one reason why I think the Supreme Court, Justice Powell likes it. I think one reason why the business community likes it, one reason why some conservatives like it, frankly. It's non accusatory. You can talk diversity talk and you don't have to talk about slavery; you don't have to talk about Jim Crow segregation; you don't have to talk about the racial crimes that have been visited upon African Americans and other people of color in the United States.

 

The diversity rationale is forward looking. It doesn't -- you don't have to talk any -- you don't have to talk about the past at all with respect to the diversity. I think a lot of people like that. They like its non-accusatory forward-looking cast. With respect to racial minorities, I think that one reason a lot of racial minority people like it to the extent that they're self-conscious about it, it's non-stigmatizing. The old-fashioned affirmative action -- we're going to give you all a break. You didn't do as well maybe with grades; you didn't do as well on the standardized tests, but we're going to give you a break. Well, a lot of people felt stigmatized by that. Diversity is not stigmatizing. In fact, diversity says, "Oh, everybody is bringing something to the table." The person of color from the south Bronx who maybe didn't score as well on the standardized tests, the diversity rationale says forget about the standardized tests, you're bringing to the table your experience of living in the south Bronx. You're bringing a very valuable perspective. So everybody gets to be a winner under the diversity perspective. And frankly, I think that's one of the reasons why it's so popular.

 

Fourth, in terms of good faith, I have a bone to pick with the conservative side. I have conservative friends, I've had conservative students, and one thing that bothers me and one thing that bothers me in your paper is it doesn't say much. There's one place in your paper where you make a parenthetical -- you have "the long and sorry history of discrimination against blacks by a sheriff's department." You're talking about a particular case. It's a parenthetical. You don't talk much about the long, the deeply destructive history of racial oppression that's still -- that has left its fingerprints on our society to this day. And what I would say to my conservative friends is, first of all, do you believe what I just said? Do you believe that our racial history is still with us, still having an effect on people? Is it still burdening people? If you believe that and I think many people do and I think people should. If you believe that, what do you want to do about it?

 

Now, if you don't want to do -- you don't like affirmative action for various reasons, okay. As far as I'm concerned, affirmative action is just one vehicle among many potential vehicles for dealing with this. Maybe there are better ways, but I want to hear something. And on the conservative side, I don't hear much. What I hear is we don't like affirmative action. They don't like this particular way of dealing with the American dilemma, but they don't say much else, and that bothers me.

 

My last comment has to do with your remarks about the situation in law schools, which I'm sorry to hear those stories, that I can easily imagine why you would be disturbed because those are very disturbing stories. I mean, what the heck? I use the word "negro." I mean, and not just for historical purposes. I use the word "negro." Why do I use the word "negro?" I can date when I started using the word "negro." I started using the word "negro" in 1983 1984. Why? Because my boss demanded that. Who was my boss? Mr. Civil Rights Thurgood Marshall. So for -- this idea of the word "negro" being a bad word or inappropriate word, I mean, what? I mean what so what are we going to do about Martin Luther King Jr.? What are we going to do about Ralph Bunche? What are we going to do about Thurgood Marshall? What are we going to do about -- I mean, we just A. Philip Randolph, Bayard Rustin. I mean, there's nothing wrong with the word "negro."

 

And as for the story about not providing a place for a mooting of the lawyer, I mean, on all sorts of grounds, it seems to me that that's out of bounds, totally regrettable. My law school in many places gets damned, wrongly. That would not be the case at my law school. And at my law school frankly there is a very wide ideological spectrum going from pretty far over to the left to pretty far over to the right. People hear things. People ought to hear things. And to the extent that that's being put under a pall, that's too bad, and people of different ideological perspectives ought to get together on that and be against that because that is anti-intellectual, it's anti scholarly, it's all -- it's anti what universities should be for. I say that as a person who is very self-consciously on the left, so I don't want people to say everybody on the left is part of some sort of orthodoxy. I'm on the left and I'm completely against the sort of suppression of ideas that is all too much a part of our intellectual life. Thank you very much.

 

Ted Frank:  Thank you, professor. And Brian, do you want to take a couple of minutes to reply?

 

Prof. Brian T. Fitzpatrick:  Sure. And I'd like to start by addressing Professor Kennedy's question about the long and sorry history of racial oppression in our country. Of course, I acknowledge that and am horrified by it and think that we should do as much as we can to remedy that. And I think the truth of the matter is, at least as a policy matter, if affirmative action were actually directed to that goal in a more serious way, I think a lot of people would have a lot less of a problem with it. So for example, something like half of the black students that are admitted to Harvard come from foreign countries. They're not even native-born black people and many of them are from very well-off families in their foreign countries.

 

And so if we were really doing it in a serious way to try to make amends, undo some of the discrimination that we perpetrated against the black families in our own country, I think people would be much more sympathetic to it. But it really does have the impression of window dressing. Let's try to achieve social justice through window dressing. We don't want to find the black people in our own country that have been the most disadvantaged, those in poverty and what have you. We'll go get some rich blacks from other countries and say that we are accomplishing these goals. So I acknowledge your point and I think if affirmative action were more targeted, I think it would perhaps have less opposition there. I do want to ask you a quick question because you do talk favorably about the intellectual diversity on your faculty. I'm curious what percentage of the Harvard faculty -- it's very big -- do you think is made up of right of center professors? Do you think it even gets the 10 percent that we have at Vanderbilt?

 

Prof. Randall Kennedy:  We do have a big faculty and I haven't thought about it. So I can't answer you in a precise way off the top of my head. I will say this. There's an appreciable presence at Harvard Law School of people whose ideas would be typed as center right libertarian. Starting, by the way, with the dean, who's a fabulous dean as far as I'm concerned -- John Manning. He clerked for Bork; he clerked for Scalia. He, in his own right as an intellectual, his textualism -- the leading person at Harvard Law School is a person who has been very much a part of conservative legal thought along with Jack Goldsmith, a new member of the faculty, Sachs, from University of Virginia, a more libertarian person like Mark Ramseyer, a substantial number. And this is just off the top of my head.

 

So again, my school, as you know, gets its lumps but on this particular issue -- and by the way with respect to -- this is a Federalist Society function right here. Federalist Society meetings at Harvard Law School -- when they have meetings, a lot of people come. Again, they're my -- I'm different ideologically. I take my hat off to them. The meetings are lively, lots of people come, not just Federalist Society people. People who are just curious, interested, trying to make up their minds. It's a very lively organization and I think in part it's a lively organization because of the scholarly intellectual environment that's here and I do hear about things that happen in other places. You mentioned the appalling incident at Stanford and unfortunately, it wasn't all that idiosyncratic. There are others and that is a problem.

 

And like I said before, I think that people of different ideological stripes -- this is one place where people of different ideological stripes should be able to get together and say we believe in thought, we believe in freedom to speak, we believe in freedom to listen, we believe in freedom to read, and we are not going to stand for suppression. Whether the suppression, by the way, is the suppression that we're seeing, for instance, in Florida with the state legislature telling teachers and professors what they can and can't say, what they can and can't have in their curricula. That is terrible and we should all be against that just like we should be against the more informal campaigns of suppression to which you referred to earlier.

 

Ted Frank:  Yes. Brian, the crux of your complaint about the modern diversity regime appears to be cancel culture and enforced ideological uniformity; isn't that a separate issue? Wouldn't it be possible to have racial preferences, racial diversity without the viewpoint discrimination?

 

Prof. Brian T. Fitzpatrick:  I think it is possible, but I don't think that we observe it in nature. And again, I think it's part of this inclusion plank in the DEI program where you don't feel included if you think that people are challenging things that are very important to you as a person. And I really think that that motivates a lot of the cancel culture. It motivates a lot of the sensitivity that the students and the faculty feel about discussing certain ideas is that if you say, for example, you think that there's no constitutional right to gay marriage, gay students feel like it's an attack on them. You're attacking them as people therefore they don't feel included, and therefore the DEI mission is being undermined so we have to shield people from those views.

 

And that's what these students at Stanford -- some of them were saying about Judge Duncan when he went to go speak there is he had some opinion, and I am not closely familiar with it, about what pronouns were to be used for transgender people and he came out on the wrong side of that, apparently. And so some of the students were saying that we are justified in shutting him down because he is denying our existence. He's denying our existence. And so it's this mentality that certain ideas make you feel excluded rather than included and therefore DEI has to come to your rescue and protect you from those ideas otherwise you're not part of the community. And so I think it's possible, Ted. I just feel like it never happens that way.

 

Ted Frank:  Professor Kennedy, I think you're right about how we ended up with this diversity rubric. Justice Powell rejected the idea of racial justice for preferences. That swung at 5-4 against that justification. But hasn't the word "diversity" 20 years later, as Brian suggests with these DEI offices, come to mean the very social justice justification that Bakke rejected? And is that a good thing? Is that a bad thing? Is that a constitutional problem?

 

Prof. Randall Kennedy:  I really do believe that people have bought into the theory. I mean, I think that people -- a lot of people -- again, let's move it out of the law for a moment. Let's talk about the way that businesspeople discuss this. I mean, there's a whole industry devoted to diversity and diversity consultants. You have -- I mean, I've talked to many businesspeople who really have embraced the idea that -- embraced the diversity rationale. Now, I used to actually talk with some degree of scorn about the diversity rationale. I mean, 20 years ago for me, if you go back to my writings 20 years ago, I mean, I really was scornful. I'm a little less scornful now. I mean, I don't think that the diversity rationale is the strongest rationale and I think it's highly speculative.

 

Does it have something -- is there something to it? Yeah. I think there is something to it. I visited a friend of mine a number of years ago at the University of Texas Law School and went to a con law class and there were all white kids in the con law class. And afterwards, I was talking with some students and there were a number of students who -- we were just talking about the class, talking about the subjects we had been discussing. And there were a number of students who mused out loud that they thought that they were missing out on things because of the racially homogenous nature of their class. Now, I don't think that ideas have a race behind them. I think that all sorts of people can have all sorts of different ideas. But do I think as a sociological matter that there was something that these students were tapping into? Was there some sort of loss there? Probably.

 

Let me say something about -- I want to go back to a concession that -- or maybe it was just an acknowledgement that Professor Fitzpatrick made with respect to the question of remedy. And here again, I think that the whole affirmative action discussion -- it's so interesting the way that ideas evolve. There was a time decades ago when there were some people who were on the left who were extremely critical of what we refer to now as affirmative action/diversity. Why were they critical? They were critical because they saw affirmative action/diversity as a palliative. They thought that basically what was happening was that the powers that be were basically going to throw some crumbs to racial minorities and that racial minority -- the most privileged sector of the racial minority groups would fasten on and eat up these crumbs and would happily ally themselves with the establishment. And so there were people a long time ago who said affirmative action, forget that. We need something much more transformative.

 

Now, we don't hear much about that now. In fact, one person that you do hear this from from time to time is Clarence Thomas. Clarence Thomas says why should we be so concerned about whether a kid goes to law school at the University of Michigan Law School as opposed to the Michigan State Law School as opposed to Wayne State. Frankly, if you're in a position to go to any law school, you're doing pretty well. That means you're a college graduate. If you're trying to get into a selective law school, any selective law school, that means you're going to do okay. What about the kids that don't even make it through high school? Or what about the kids who make it through high school but are functionally illiterate? Why isn't more attention being paid to them?

 

Now, frankly, there are some conservatives -- I just mentioned Clarence Thomas -- who make that argument. I think frankly, it's a good argument but in coming out of the mouths of certain conservatives, I have a problem of bad faith. The problem of bad faith that I have is that they only talk egalitarian talk when they're putting down affirmative action. So when affirmative action enters the picture, then they talk about well, what about the kids that don't make it through high school? All the other days of the year, they don't say anything. It's only when affirmative action comes up that they talk egalitarian talk. If on the other hand, they talked egalitarian talk the other days of the week, my position would be hey, let's talk. I'm not married to affirmative action. I think affirmative action has a variety of downsides to it. Can we come up with something better? That is where I think the talk should be. So in any event, I don't want to filibuster.

 

Ted Frank:  Very good. Brian, I want to rephrase one of the audience questions and add some data to it. According to the most recent data available, fewer than a hundred African Americans a year score as high as 170 on the LSAT which suggests that an admissions process based on quantitative measures that doesn't account for race would leave top law schools with few or no African Americans or Harvard would sweep them all up and the rest of the top 15 wouldn't have any. Is that a problem as a legitimacy matter? Is there a solution to that problem that you would find acceptable as a constitutional matter?

 

Prof. Brian T. Fitzpatrick:  Is it a problem? It's frankly not a problem for me. And when we talk about legitimacy, this is legitimacy that has been influenced by decades of propaganda about diversity being necessary for legitimacy. And I just reject that premise. I just do not think that racial diversity should be seen as necessary for legitimacy. I think what makes an institution most legitimate is if it has the best and the brightest people there, not people that fill out a certain color mosaic. And this is a problem that I just have over and over again with the diversity argument is if we really want these different perspectives, these different viewpoints, why don't we make efforts to actually get the viewpoints and the perspectives? Why are we using skin color instead of going directly to what we say that we want?

 

And I think the question just presumes that what we're after here is not the educational benefits of diversity, Ted, because what we're after here is this window dressing again. We need window dressing in order to make people happy, not educational benefits because if we wanted educational benefits, we would go to the things that produce those benefits -- the diversity of ideas, the diversity of perspectives. And I'm just curious if Professor Kennedy favors using preferences for conservatives when you're hiring faculty over there at Harvard. If conservatives are as underrepresented there as I suspect they are, why aren't you guys using the same efforts to boost those numbers that you use for the races that you think are underrepresented?

 

Prof. Randall Kennedy:  A couple of things. Number one, remember your starting point. Your starting point is that a lot of the diversity talk is pretextual and I agree. I think a lot of it is pretextual. Do I think that there is something to some diversity -- is there something going on there that on the edges should be taken into account? My view is, yes. So ideologically, yeah, if somebody has a very different ideological vantage or methodological vantage, I'd say, yeah. We've got a really good this one; we've got a really good this one; we don't have a really good that one. So let's get that one. So the idea of making a special effort, outreach, special recruitment, special having an eye out for somebody who is ideologically an outlier, fine by me.

 

I want to say one last thing with respect to the person who asked that question because I think that this is a tough one. The person who asked the question basically said, "Listen, there's this gap -- quite dramatic gap -- what do we do about it?" Now, I think that there are -- in some quarters that gap is very threatening. I mean, we live in a society where the idea that black people are intellectually inferior to white people as a congenital matter -- that's still out there. There are millions of people who think that. And I think that when you start talking about the gap, I think people get really nervous, and I think that a lot of people really want to put that under the rug. They don't want to deal with it. They just -- let's turn the page.

 

I think that the issue of the gap -- and by the way, I think there is one. I don't doubt that there is, and I don't think that there should be any mystery as to why there is such a gap. I mean, for over a hundred years, it was a crime -- a crime --to teach black people literacy. It was a felony. And after that, black people were systematically deprived of educational resources and then impoverished and this and that and the other. Does this have consequences that show up in the gap that the questioner mentioned? Yes. I think that that gap should be faced, and I don't think it should be swept under the rug and I think we should do things -- what do we do about that?

 

Now, what we do about it I'm not sure, frankly, and I think we should discuss it and maybe experiment. I think that social problems are really difficult problems and it's not altogether clear what you do. So I'd be in favor of -- let's have some experimentation. Let's in some places do this, in some places do this, in some places do that. And then in let's say, three to five years, what did we come up with? What seemed to work and what didn't seem to work? I would be in favor of that. But one thing I will insist upon is the idea that we still have a problem of racial unfairness in the United States, and we need to do something about that. Now, the way that you, Professor Fitzpatrick, want to deal with that -- I want to hear your ideas. I probably will agree with some of them. I won't agree with others. We need to swap ideas on that and I'm happy to swap ideas. I'm happy to compromise. I'm happy to give up some of my favorite vehicles. What I'm not willing to do however is to turn a blind eye to the social inequities that are still so evident in these United States of America.

 

Ted Frank:  We have an audience question that asks, "What accounts for the educational gaps in standardized test achievement between whites on the one hand and Asians on the other?"

 

Prof. Randall Kennedy:  Outside of my kin -- I don't know.

 

Ted Frank:  Fair enough. Another audience member points out that California law already technically prohibits racial preferences, but Berkeley Law says that they've been able to achieve a racially diverse student body without engaging in racial preferences. Do the panelists believe that that's actually happened or are they using something else to sweep it under the rug?

 

Prof. Brian T. Fitzpatrick:  Well, I think this is where we're headed. If the Supreme Court overrules Grutter, we are going to enter this world of proxies for race. Facially, race neutral but racially motivated admissions criteria. And the next question that the courts are going to have to confront is, "Is it constitutional to try to evade the overruling of Grutter by finding proxies for race that are not race and give preference on those bases." And I think it's a difficult question. I've written several articles about it where I say even this racial proxy approach is unconstitutional, but I definitely think that is the next step in the analysis.

 

Prof. Randall Kennedy:  Yeah. I would agree. The only thing I would add is we've been there for a while. I mean, after all, Texas -- the 10 percent plan. It seems to me that the 10 percent plan -- does it say anything about race on the face of it? No. It just says 10 percent of any kid who graduates from a high school in Texas. Was it racially motivated? In large part, it was. It wasn't the only thing but in large part, it was. How do we view that? And again, we've -- the Court hasn't totally grappled with it. I suspect that it won't totally grapple with it for a long time if ever. In part, to get back to my earlier comment, I think that there are various places in the law where we basically decide that we're going to live with various fictions. I mean, after all, there's the whole -- legal fictions. The law is shot through with legal fictions and I think that this is one place where we've learned to live with them. We've learned to live with double talk, and I suspect that we're going to continue for a good long while and hope that other influences change society such that some of these issues are basically mooted. That is what I think is going to probably happen.

 

Ted Frank:  Let's try to get one last question here. Somebody points out that elite colleges and universities already statistically favor male applicants in their admissions process to achieve gender ratios because without it, women would make up a significant majority of the students at places like Vanderbilt and Princeton. Is the perceived academic benefit of gender diversity any different from racial diversity or should we abolish sex from the admissions process and accept 60/40 ratios?

 

Prof. Brian T. Fitzpatrick:  I would definitely abolish it and I don't even think anyone argues for those preferences based on educational benefits. I think that's social benefits, not social justice benefits, but social benefits. People want to find their spouse at college and the disparity in men and women makes that very difficult. And so I think it's an entirely different rationale -- even weaker probably than the educational benefits of diversity rationale.

 

Prof. Randall Kennedy:  Yeah. I don't have anything to add except one point and that is, and I think this is often lost in discussions of diversity/affirmative action -- most colleges and universities in the United States are not selective. The places that we're talking about are a small slice of the higher education universe which just goes to accentuate the extent to which the whole debate is very elite oriented. Now, elites are very important. I'm not saying that that's -- I'm not saying that they're not important. They are important. I just think that people ought to remember and keep in their minds in thinking about this that we are talking about a special slice of the higher education universe. It's the slice that gets a lot of attention and on another occasion, we might ask, "Why is it that this slice -- why is it that the elite institutions garner so much attention in our imaginations and in our discourse?" Thank you very much for allowing me to talk to the assembled group. I've enjoyed it.

 

Ted Frank:  Yes. Thank you, Professor Kennedy, and thank you, Professor Fitzpatrick. I promised I'd let the academics get out of here at 1:00 so I'll turn this back over to Sam.

 

Sam Fendler:  Well, thank you very much, Ted. And on behalf of The Federalist Society, I want to thank Professor Fitzpatrick, Professor Kennedy, and Ted, you for the benefit of all of your time and expertise today. I also want to thank our audience for joining us. We greatly appreciate your participation. Please check out our website fedsoc.org or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in and we are adjourned.