College Admissions: Fair or Fixed?

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As the Supreme Court prepares to hear two cases this fall that challenge race preferential admissions policies at Harvard University and the University of North Carolina, questions have arisen about how colleges typically use race preferences and whether such use is fair and lawful.  This webinar will address how and when race is commonly used in college admissions, whether colleges and universities are generally following the existing law, and what if any safeguards colleges use to ensure that line admissions officers use race to further only legally permissible goals.  The panelists will also discuss what some find the surprising fact that Asian American applicants are more likely to be displaced by race-preferential admissions than white students and whether this practice is fair.  Finally, the presenters may also address the fairness of other non-academic factors widely used in admissions, such as preferences for legacies, recruited athletes, or the children of large donors.

 Featuring:

Art Coleman, Managing Partner and Co-Founder, EducationCounsel

Cory Liu, Partner, Ashcroft Law Firm

Moderator: Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Ryan Lacey:  Hello, and welcome to The Federalist Society’s virtual event. This afternoon, May 24th, 2022, we discuss "College Admissions: Fair or Fixed?" My name is Ryan Lacey, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our experts on today’s call.

 

      Today, we are fortunate to have an excellent panel moderated by Alison Semin who I’ll introduce very briefly. Alison is a legal fellow at the Center for the Separation of Powers at the Pacific Legal Foundation. Before joining PLF, Alison was a special assistant and counsel for over a decade to Gail Heriot, a member of the bipartisan United States Commission on Civil Rights. Alison was a Koch Associate at the National Federation for Independent Business Legal Foundation and during law school completed a summer clerkship at the Institute for Justice in the Charles G. Koch Charitable Foundation. She holds a JD from Emory University School of Law and an AB in history from Dartmouth College.

 

      After our speakers give their remarks, we will turn to you the audience for questions. If you have a question, please enter it into our Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of today’s program. With that, thank you for being with us today. Alison, the floor is yours.     

 

Alison Somin:  Thank you so much for that kind introduction, Ryan. And welcome to the audience to today’s webinar -- College Admissions: Fair or Fixed? Some background on the topics that we’re going to discuss today. As the Supreme Court prepares to hear two cases this fall that challenge race preferential admissions policies at Harvard University, University of North Carolina, questions have arisen about how colleges typically use race preferences and whether such use is fair and lawful.

 

      Today, the panelists will address how and when race is commonly used in college admissions, whether colleges and universities are generally following existing law, and what, if any, safeguards colleges use to ensure that line admissions officers use race only to further legally permissible goals. The panelists will also discuss what some find the surprising fact that Asian American applicants are more likely to be displaced by race preferential admissions policies than are white applicants, and they’ll discuss whether this practice is fair and lawful. Finally the presenters may also address the commonness and fairness of other non-academic factors widely used in admissions such as preferences for legacies, recruited athletes, or the children of donors.

 

      There are more extensive biographies listing the impressive credentials of today’s two panelists on the FedSoc website but let me take a moment to briefly introduce them. Art Coleman, who will speak first today, leads the legal and policy work of the College Board’s Access and Diversity Collaborative which he helped establish in 2004. He’s been a principal author of numerous amicus briefs filed in federal courts on issues associated with the educational benefits of student diversity and the consideration of race in admissions. Mr. Coleman also currently teaches at the USC Rossier School of Education. Previously, he was the Deputy Assistant Secretary of the US Department of Education’s Office for Civil Rights during the Clinton Administration following a tenure there as Senior Policy Adviser to the Assistant Secretary. He’s an honors graduate of Duke University School of Law and a Phi Beta Kapa graduate of the University of Virginia.

 

      Second, we’ll hear from Mr. Cory Liu. Mr. Liu is a partner at the Ashcroft Law Firm. He previously served as Assistant General Counsel to Texas Governor Greg Abbott. Mr. Liu clerked for Judge Andrew Oldham on the US Court of Appeals for the Fifth Circuit and for Judge Danny Boggs on the US Court of Appeals for the Sixth Circuit. He was Editor in Chief of the Harvard Journal of Law and Public Policy in law school and is a graduate of Harvard Law School and the University of Chicago. And with that, the floor is yours, Mr. Coleman.

 

Art Coleman:  Thanks so much. I appreciate you having me today, and I look forward to the conversation. I’m going to kick us off. I’ve been asked to reflect on sort of my years and work with the admissions field to get a sense of what’s going on behind the proverbial closed doors. And I’d like to kick off by just saying this is based on both my perspective from my federal policy and enforcement days as well as the work I do with national associations and institutions of higher education as a matter of professional development and policy design.

 

One of my biggest concerns over time has actually been what I perceive to be the disconnect between the public understanding of what reality is and what is actually going on behind closed doors on issues of admissions. I think that plays into some of the legal arguments we may be facing coming up. But I think the fundamentals are really grounded in both principles of good admissions practice for the field that are generally adhered to as well as some of the legal principles that I think are front and center on the cases that Alison mentioned a few minutes ago. And I want to hit on sort of three core points around what my perspective is around what the field is doing when it is adhering to not only best practice but legally compliant practice going all the way back to Bakke, and then Grutter, and Gratz. One is an authentic individualized wholistic review process; two, an undergirding of rigor regarding analysis evaluation; and three, an ongoing process of continuous improvement. I think one of the federal district courts in the cases we’re going to talk about said -- more than once, in fact -- perfection was not the standard. I’ve adhered to that principle for decades because I think this is not a -- we’re dealing with human judgement. We’re dealing with an assessment of multiple factors and multiple interests, and I think that you’ve got a profession that’s committed to getting it as good as they can get it, but there’s always a point of continuous improvement, and I’ll talk about that for a bit.

 

Let me start with what I think is really the cornerstone of good admissions design which is individualized holistic review. It’s not mechanical. It’s not formulaic in any real sense. I think it reflects a couple of factors: one, a range of consideration of multiple intersecting factors -- student accomplishments, potential at the institution, unique interests, importantly the context in which the student has been brought up and educated, what opportunities they had, what opportunities they didn’t have. That sort of big global picture is really fundamental to understanding good decision making in the admissions context for selective institutions. And I should say that, based on some research, the individualized holistic review -- I think the latest data I’ve seen reflects -- is reflected in about 90 percent of the institutions that consider themselves selective throughout the United States. One other point here, I think, to emphasize is the just vast array of factors that can play into an admissions decision. The college board models project from the early 2000s identified through some very rigorous work in the field 30 academic and almost 70 nonacademic factors that calls to mind -- I think, in the UNC case, they identified something like 40 factors at play in their admissions decision.

 

So I think, bottom line, no two applicants are ever identical. No two applicants are ever presenting the same credentials or the same degree of fit even for a particular institution. It’s really about not only what they’ve achieved but the context in which they’ve achieved it. In the sort of broad big point on individualized holistic review, let me drill down to two fundamental questions that I think are often a point of contention to be sure and sometimes misunderstood. One’s the question of merit, and one’s the question that is the centerpiece of the cases going to the Supreme Court this fall -- the consideration of race. I think you will find this is universally true with institutions of higher education that are selective, and it is certainly grounded in both the psychometric principles generally and the test use guidance that’s put out by the College Board and ACT. Merit is never defined by test scores and grades -- period end of sentence. Test scores, according to test publishers, are limited, imperfect, and not exact even if they are important measures that must be considered along with other factors as a foundation for a high-stakes decision like an admissions decision. So the test scores should never be considered the sole or even the principal factor notwithstanding their importance. And it’s important to understand that test scores are never judged in isolation. They are evaluated in the context of the entire student application going back to this notion of individualized holistic review.

 

The second point, on the question of race, in my experience and from what I’ve both deduced from working with institutions and the work I’ve done with national organizations, the consideration of race can’t and should not be mechanical. It should not reflect a kind of systemic weighting. I return to both the Grutter, and Gratz divide in 2003 where the court, on the one hand, upheld this authentic individualized holistic review where race could be one factor integrated among other factors versus the more mechanical rigid point system that was struck down. And I think it’s really important to recognize, and I think this is an important factor, when you understand the dimensions of holistic review -- trying to understand the totality of the applicant’s background and experience -- that race enters in through facets around their life experience, their self-identity, and the like. So it’s really not, when done well and appropriately and I think in legally compliant ways, a check the box or a status demarcation but one that is reflective of the entire story and picture of the applicant.

 

So the last point I’ll make on the individualized holistic review is simply that the question of evaluation is not just about the four corners of the application. Admissions officers, yes, are doing that in earnest but they are also charged with assembling a class. And part of that question of assembling a class is, how do you achieve your institutional goals? How do you create the mix of students that will enhance the learning, the dialogue, the challenge from different backgrounds and experiences? And I think this is a big piece that sometimes gets missed particularly in the headlines. So let me quickly -- that’s sort of individualized holistic review in a nutshell, if you will.

 

Let me turn to then, very quickly, the two other elements I mentioned -- the sort of a process of rigor. There’s a lot that goes into a design around an admissions policy and process and implementation -- both addressing sort of mission driven institutional goals, understanding that admissions is part of a broader enrollment management strategy that involves everything from outreach and recruitment to financial aid and scholarships. So there are fundamental business decisions here -- keeping the lights on is part of that but they’re also integrated within other design elements. In my experience, that’s both research-based -- tied to not only sort of broad research but what institutional experience is over time -- what they are achieving, where their goals aren’t meant, part of this continuous improvement. And it’s really grounded in a notion of professional judgement that’s further enhanced by ongoing framing, ongoing calibration about different factors and decisions. And part of the process is also very much integrated with input from boards of trustees, presidents, provosts and the like, and faculty -- not just a cluster of folks in an admissions office.

 

And finally, back to my point that perfection is not the ultimate goal here because that’s an impossible goal when you’ve got human judgement at play, there is a very dedicated robust effort – typically, you see it in the summer cycles -- where there is an evaluation of what went right, what went wrong, what needs to be adjusted, what needs to be fixed -- not only looking at both the, how did we do in our admissions cycle, but now, what is the experience? And what are the outcomes associated with student experience and success? And so it’s a very dynamic ongoing process that’s very -- it’s not a static one and done. It is a process that is subject to ongoing evaluation, ongoing questioning, ongoing challenging, and that’s part of the experience. Let me stop there, Alison. I think that gives a picture of the basic foundation as I’ve experienced it.

 

Alison Somin:  Thank you. On that note, we’ll now turn to Cory Liu.

 

Cory Liu:  Thank you, Alison. And thanks, Art for that description of how the admissions process was conceived of and how it’s supposed to work. I think my reaction is that, despite the best of intentions, if we presume that those at these universities who are making these decisions are trying to implement all of those policies that you just described -- those goals, that there’s still going to be problems and not only that those problems are just in the implementation of it, but that it’s inherent to that way of approaching admissions. I think -- let me start with something that -- I have an interesting insight that I got when I was having a discussion with Professor Sanford Levinson at the University of Texas at Austin here where I did a Federalist Society event back in 2018. And he actually expressed some agreement with some of my criticisms of how race conscious holistic admissions has happened, which is that there’s sort of an inherent flaw in this pursuit of diversity that Grutter put a stamp of approval on. Who counts as diverse? Which categories do you look at?

 

      Ultimately, as individuals, there are so many factors that make us unique. There are -- everybody in some sense could be said to have certain advantages or disadvantages. I mean, not just race or sex but your personal health, your -- all sorts of infinite factors that don’t necessarily break down in the typical identity politics way, but because of the way politics works, some of these identity factors will get more emphasis than others. And because there’s so many factors that make us unique as individuals, it’s impossible really to define diversity in a way that ultimately doesn’t have the effect of excluding some people.

 

And so what Professor Levinson is sort of -- example to concretize this is, he said, “I would have liked to have seen more Middle Eastern Muslim students at the University of Texas, but that group isn’t really prioritized -- isn’t thought of as a particularly important mission for the admissions policy.” And so they’re not really thought of. And, of course, another way the census classifies people based on race -- they would be treated as white. And so you see certain categories that are emphasized in sort of touting how – what the diversity accomplishments are of the university. You look at schools’ demographic breakdown -- it’ll usually be race, and then, sex, and so -- and then, they have a particular set of racial categories that they use which, in an amicus brief that I submitted to the Supreme Court on behalf of Professor Bernstein, we argued that those categories are overinclusive, underinclusive. Why are all Asians lumped together as one group? Things like that. But those are the categories that have just come from – initially, from federal bureaucrats and then, universities because they already had that data they were providing for the Department of Education. They just used that, and they tout that, and that drives a lot of what they’re looking at in the admissions policy.

 

So what came out in the Harvard admissions lawsuit is that they have these one pagers. And so continuously, throughout the admissions process, they were tracking based on these typical racial categories that we all know of and monitoring the demographics. And then, at the end, when they’ve kind of almost figured out all the people they’re going to give offers to, if there’s too many, they’ll do a lopping process. And again, you can see some discovery -- some email correspondence about, “We’re about to do the lopping. Send me the ethnic statistics.” So those -- you end up with certain categories that we’re all familiar with that are prioritized. And again, it often is political considerations. If the numbers don’t look a certain way, which groups are going to protest? Which groups are going to have an influence in terms of criticizing? What’s the media going to be attacking? Oh, you didn’t have this many students of this background. You can see this in the headlines, on twitter -- which groups get emphasized. And so you have this dynamic that some will call the victimhood Olympics or the victimhood hierarchy where some groups get more attention, others do not. You can hear this in -- politicians sometimes give shout outs to different groups, and they’ll list a few. And then, of course, Asians are almost never mentioned because were a relatively small group. A lot of us are immigrants, non-citizens, not voting. And so, in terms of politics, they’ve just never really been prioritized, and they’ve been often overlooked.

 

And so that’s, for me, what got me interested in this subject ever since I applied for college around the same time as Abigail Fisher. I’m hearing the rhetoric of, “We’re trying to include everyone and produce a diverse student body.” And yet, my own personal experience was the son of immigrants -- we didn’t speak English at home, face a lot of the discrimination that immigrants face, and it was challenging. And yet, in the admissions process, I had this feeling that, “Well, we can see there’s -- we have enough Asians. In terms of looking at all of America or all of Texas, we have an idea of what diversity looks like, and that means we look at you in proportion to your representation in the population.” We hear phrases like overrepresented or underrepresented. They didn’t say overrepresented as much because that would sound discriminatory, but they would talk about underrepresented groups. And I think it’s inherent in this game of looking at different identities that, if you’re going to give extra weight to certain groups who, in your mind, need a boost because they’re underrepresented, that people who don’t belong to that groups, it’s going to have an exclusionary effect on them.

 

And what the Harvard case highlights is -- and often in the debate you would hear phrases like, “Reverse discrimination,” or things about, “Why are white people complaining about this?” And what we’re seeing here is that actually Asian Americans -- in fact, we’re such a small minority group that they don’t even get mentioned in the Supreme Court opinions. In Grutter there’s no discussion about the extent to which Asian Americans might be penalized by the policy. And then, in 2014, in the Michigan affirmative action case where Michigan passed a constitutional amendment at the state level requiring race not to be considered -- that was then challenged by supporters of race conscious policies. And it went to the Supreme Court who said that Michigan may pass a constitutional amendment along these lines. But Justice Sotomayor wrote a dissent and she talked about how removing these policies would have a detrimental effect on minority admissions. She pointed to schools in California where -- in California, they passed a similar constitutional amendment at the state level. And she didn’t have any discussion of Asians at all.

 

So perhaps some minority groups -- maybe the numbers changed in a way that decreased the population, but then, there were also other minority groups that had a greater chance for admissions just because they’re being treated equally to students of other races -- their race isn’t being used to penalize them. And her opinion doesn’t even mention Asians as existing at all. I don’t know if it was negligence or some kind of selective desire to highlight rhetorically without considering some of the challenges of her position. But I think that’s where we see the ultimate inevitable flaw in this kind of holistic approach -- that inevitably, you’re prioritizing some people over other people based on factors that we as a society through our constitution have determined may not be considered such as race. And yet, the Supreme Court carved out a little bit of -- allowing a little bit of use of that policy. But then, you can even see in the Grutter opinion is internally conflicted -- whether it’s Justice O’Connor putting a 25-year mark and saying, “We know these policies can’t go on forever,” even though the diversity rational sounds like something that could justify these kind of policies indefinitely. You see her uncomfortable, “Well, we can’t do this forever.” This -- we have to put a limit on it.” And the idea that you would reject either a quota or a mechanical use of race, but then, still allow for critical mass -- for a lot of commentators have pointed out, all you’re saying is that you can try to achieve some goals as long as you’re not explicit and clear about what they are and how you’re doing them.

 

And so obviously, there still is considerations of the numbers like these one pagers that Harvard were using, and they were trying to replicate those year after year because, as the evidence showed, for roughly 20-year period that was examined by the plaintiffs, the number of Asians remained the same. The number of all the different demographic groups pretty much remained mechanically the same year after year. And so I’m not sure there is a way to do this that will achieve what the critics -- the people who support these diversity policies want which is they ultimately want the numbers to look a certain way. And so, if you just use race or other factors just a little bit, you may not necessarily get the exact numbers or outcome that you want, and you’ll face a criticism. And so inevitably, you’re going to be reduced down to this mechanical consideration whether it’s quotas or whatever. And you just may not be stating it as explicitly or honestly.

 

And that’s a lot of the resentment that I’ve felt going through this myself and met a lot of Asian Americans and other folks who have been interested in this lawsuit as -- you can hear the rhetoric. It sounds nice. Then, you look at the reality of how it’s implemented, and at the end of the day, there are these judgement calls. And there are biases as to what factors contribute to diversity, and I’m not necessarily arguing for only tests. I think there are potential advantages to using only tests or testing grades which is that it strips away a lot of the potential biases, for example, the discrimination against Jews that was at Harvard before Asians -- just explicit references about, “You wouldn’t want there to be too many Jews or even the Jews wouldn’t want to be there anymore.” That kind of thinking.

 

When you -- if you go to just pure academics -- I’m not saying it’s fair in every respect or somehow that is the best way to judge who you are as a person, but it is a way that everyone is judged in a uniform manner that removes bias. But even if you don’t look at that, I think we still have to be ultimately aware that this diversity goal -- there’s no way to implement it in a way that doesn’t ultimately have some sort of exclusionary effect on some groups. And I think that’s why, as long as these policies are in effect, people are going to continue to raise challenges to them. You’re going to have problems like what happened at Harvard where theoretically, you’re supposed to be using race just a little bit, but it seems like every year they’ve already predetermined the racial balance of the class. So I think the case does a very good job of illustrating that problem, and we’ll see what the Supreme Court does.

 

Art Coleman:  So, Alison, can I just do a couple points of response?

 

Alison Somin:  Sure. In fact, I was just about to ask both of you if you each wanted to take a moment to respond to what the other has said.

 

Art Coleman:  Sure. So, Cory, I appreciate the perspective, and there’s a lot in what you said that I think -- to the extent that it reflects an institutional decision where there are these sort of categorical roles or even quotas or sort of a sense of all Asian Americans are lumped into one category which is problematic in and of itself, and the way you described it I think would be problematic. But I think I want to say this -- number one, just as a reminder and a grounding point, that the diversity interests that are the foundation for all of this are actually well beyond race and ethnicity -- of which race, and ethnicity are a piece, and we shouldn’t lose that. And I would say a lot of the ways in which institutions sometimes talk about these issues -- you talked about sort of the websites and how they report on their class becomes very categorical. That can certainly lend itself to that understanding. I will tell you, from my experience, that kind of rigid or systemic or mechanical lens is not the reality when you are looking at the authentic individual in a context. Again, that’s not to say there are outliers. I can’t speak for all of higher education. But I can say that I think that’s really what’s part of it because it’s not going into individualized holistic review and saying, “Is this student an Asian American or is this student black or is this student Hispanic.” It’s actually going to see what the lived experience and background and perspectives and interests may be that could easily be associated with that that will bring some richness to the dynamic about this learning community you’re looking for.

 

And I think ultimately, we’ve got to acknowledge that the reality is -- the aim for the institution is to assemble a robust class. And by design, they want students from a vast array of backgrounds and experiences. And that’s going to mean some judgements of who gets in, who doesn’t. Your point on the test scores and grades -- if Harvard had gone to, I think, based on the data, if Harvard had gone to just a top SAT score criterion, they would have knocked out a lot of perfect SAT scores because there were more perfect SAT scores on the record than they are admitting in any one class. So these are human judgements at an ultimate level around the profiles of the students. And again, I’ll acknowledge that sometimes the way we talk about it and the way we frame it and even the way that websites articulate, “Here’s our class for the coming year,” overly simplify and overly categorize the complexity and the richness of the decision making that’s going on there.

 

Cory Liu:  My response to that is that I actually really think the insights of implicit bias that have been raised in recent years and which came out in the Harvard case show that what some might consider to be a rich holistic admissions, others would find to be a limited biased process. I think everybody carries with them -- every reviewer -- carries with them their own personal experiences, their own judgements based on who they are. And everyone’s limited in that respect because we don’t have the life experiences of so many different people. And so this is where you see, for instance, in a lot of Justice Thomas’s opinion this sort of resentment of the purportedly well-meaning white liberal who actually is not seeing a lot of the complexity of what’s going on. And so the great thing about this lawsuit I think is that it’s given a voice to a lot of Asian Americans, journalists, writers who’ve been telling these stories that -- honestly, I google, and I would never find anything like this. But because of this case, so many have come out and written really interesting and thoughtful pieces that really resonated with me including people who would not identify as conservative or politically kind of trying to disrupt the system. They’re just Asian Americans describing their stories.

 

So if I could just read a couple of excerpts. I have two. One is Professor Jeannie Suk Gerson. She’s a Harvard Law School -- a professor there. She talks about how she, “The application process for schools, fellowships, and jobs always came with a ritual -- a person who had a role in choosing me. An admissions officer, an interviewer would mention his congratulations that I was different from the other Asians. When I won a scholarship that paid for part of my education, a selection panelist told me that I got it because I had moving qualities of heart and originality that Asian applicants generally lacked. Asian applicants were all so alike, I stood out. In truth, I wasn’t really much different from other Asians I knew. I was shy and reticent, played a musical instrument, spent summers drilling math and had strict parents to whom I was dutiful. But I got the message. To be allowed through a narrow door, an Asian should cultivate not just a sense of individuality but also, ways to project ‘Not like other Asians.’”

 

The other article is by Aaron Mak from Slate, and he talks about how, “I carefully manicured my identity to cater to the admissions committee, but that effort also involved erasing it in order to appear white or at least less Asian. I chose to leave the optional race and ethnicity blank in the form -- a practice common among Asian applicants. I assumed Mak isn’t a popularly known Chinese surname in the US. My dad used to jokingly point out that it’s one letter off from the Gaelic surname Mack, M-A-C-K. Maybe an oblivious admissions officer would mistake me for Scottish. I didn’t tell my father how much I’d hoped our family would be misread. I marked my intended major as philosophy, thinking this was one of those impractical fields that most sensible Asian parents would not allow their children to pursue. I had no intention of actually following through. I avoided,” another excerpt from the same piece, “I avoided participating in a future doctors’ association ping pong club, the robotics team, and the Asian culture group. I quit piano -- viewing the instrument as a totem of my race’s over eager striving in America. I opted to spend much of my time writing plays and film reviews -- pursuits I genuinely did find rewarding but which I also chose so I wouldn’t be pigeonholed. I enrolled in a Mandarin course during my senior year of high school, never having learned a Chinese dialect as a kid, but I dropped it a few weeks in. I told the people it was because I was too busy but in actuality, I didn’t want Mandarin on my transcript as a second language on my application which I feared could be a red flag for the admissions committee.”

 

And so I think what you’re seeing here is that there’s -- in trying to please the admissions officers, many Asian Americans are actually feeling like they have erase their own sense of identity and who they are as a person in order to basically consider what they think a white person would find interesting. And this is certainly something that I experienced and felt when I applied for college, and that I -- honestly, if you just googled and whatnot, you wouldn’t find any discussion of this from any of the folks who are in power -- the university administrators, the judges who had judicial review who were empowered to apply our civil rights equal protection laws. And so I think this case has, again, it’s brought to light so many of these important experiences. And I think it does show that there is discrimination against Asians --that Asians have been overlooked for decades whether the court does what I consider to be the right thing, we will see. But I’m hopeful that they do. And even if they don’t, I think there’s going to be -- the discussion that was generated will make these policies never be seen the same again.

 

I think whatever opinions come out of that will engage with these issues. And then, for me that’s -- that leaves me with a good feeling. And I think, if these policies are ultimately upheld, that the litigation will continue because inevitably, these considerations of factors -- again, some of which end up getting prioritized over others because just the finite number of factors that can be considered and the inevitable prioritization that comes from that. I don’t think this ideal of, “Let’s treat everyone as an individual,” is ever going to be possible because of politics, because of human biases, because of the way these get implemented. So I think fundamentally, there are factors other than race, but race has become such a politicized topic, and our constitution’s Equal Protection Clause -- if it protects any identity from discrimination, it is race.

 

And so I think we can talk about other -- I know in the description for the event, we talked about also just the fairness in admissions in general and legacy. And I find that very problematic as well, but when people ask, “Why aren’t you focused on legacy?” First of all, I say, “I would. if I was a congressman, I would vote to defund universities that use legacy because I think it’s a corrupting practice.” It’s basically to perpetuate the wealth and privilege of the university through their connections. I don’t think we should be publicly funding any institution that does that. But the constitution does have an Equal Protection Clause. We do have civil rights laws that specifically were passed to address race discrimination. So I think Asians do have a legitimate grievance here based on their experiences under these policies since Grutter.

 

Art Coleman:  Let me just pick up on one point, I think, Cory that I think we could agree on. When you were describing sort of the student or the applicant who feels like they’ve got to present themselves as something that they are not authentically -- like that’s painful to me, personally. I’ve lived this space. I care about this process a lot. But it is also in my mind sort of antithetical to what this really should be all about which is the individual identity and dignity of the individual. And that really ties back into -- to take it back to a legal context -- the Fourteenth Amendment. I think the Equal Protection Clause is grounded in the notion of the individual. We’ve had an evolution of law over decades on that. But I think we are now about the individual and the dignity of the individual. And I will say, one of my concerns about the ongoing litigation and the request, beyond just the facts of the case, just sort of wipe out any consideration of race or ethnicity in admissions as SFFA seeks to do in this case, is the notion that you would lose the ability for a student to tell his or her story. You would lose the ability for a student to say, “This is who I authentically am, and that should be considered as part of the calculus in the admissions decision.” And I think that the dignity of the individual is at core. The authenticity of being able to tell your story is at core. And I’m bothered by anything that would cut against the grain on that.

 

Alison Somin:  Cory, did you want to respond to that?

 

Cory Liu:  No. I think we’ve had a good discussion. I don’t know if you want to go to any questions or --

 

Alison Somin:  So I jotted down a couple of questions of my own. And then, depending on how much time we have left, we can move on to audience questions. Art kicked off his remarks by noting that there’s an ideal that holistic admissions should approach but that it often does imperfectly of true full individualized consideration. I’m curious how closely you both think the typical selective college admissions process approaches that individual holistic ideal and whether you think that the two admissions processes at Harvard and University of North Carolina that are subject to challenge -- how well you think that those university’s procedures approximate that ideal of true individualized holistic consideration.

 

Art Coleman:  I’ll jump in. I’ll say, I don’t think there is any typical university when I go behind closed doors with institutions. The first thing they tell me is, “We’re different, and we’re unique.” And that’s actually authentically true. Like everyone’s got a different mission. Everyone’s got a different design, but they operate within these parameters. My general experience has been -- are there tweaks and refinements that are often necessary and important to make in this continuous improvement model? Of course. But the fundamentals are there because, in my experience -- and you alluded to this in my background at the outset – literally, I helped form the Access and Diversity Collaborative in 2004 following a meeting of 60 admissions teams who were reacting to Grutter and Gratz and trying to figure out what do we do next. It was literally an enterprise to say, “We’ve got the rules of the road. Now, the question is how do you integrate that in your design.” So not just that I’m following the law, but literally, the law is integrated in the policy and practice. And that’s been the work I’ve helped lead for a decade and a half. So I think that is really an important feature to understand in this broader context. I’ve not read all of the record in Harvard and UNC. I’m basing my judgements on some of the briefs, and then, ultimately, the district court opinions which are heavily factually detailed as well as the one appellate decision. I see the hallmarks of individualized holistic review. I see the hallmarks of the consideration of race as part of the entire applicant in those cases.

 

Cory Liu:  Well, I think you probably know where I stand on this, but I don’t think -- in my mind, the question is, are they sincerely trying their best or do they deep down inside know what they’re doing is wrong and nonetheless feel compelled because that’s what their job is? That’s what the Supreme Court has said to frame their process a certain way. But even assuming the intentions of these admissions officers are the best and they’re doing their best, I think the mission is hopelessly doomed because, as I mentioned, implicit bias -- there’s just too many factors to consider. And so for instance, the lack of transparency, I think, to me, is indicative that deep down inside, the people who are doing this know it’s a doomed -- or there are certain intractable flaws that can’t be discussed because it would be too uncomfortable.

 

      So, for instance, if I -- I’ve never -- I often write and I often talk about this issue, but I’ve never actually sat down with, for instance, with Miguel Wasielewski, the admissions director at the University of Texas. And, if I were to tell him, “Did you know that there are Asian students who are intentionally not learning their own language or trying to erase that aspect of their identity because they know that people like you are going to think that there’s too many of us and what kind of psychological and dignitary harm that inflicts on us?” And then, as 100 percent sincere, I think he would look -- he would listen and say, “That’s terrible. There’s also a lot of other people who -- but what about this? What about that?”

 

And so inevitably, I think a lot of Asian Americans -- where the frustration grows is, we talk about our lived experiences, our discrimination that we face. And what we get is a look of, “Well, you guys are doing okay. You guys seem to be doing fine relative to your people -- whatever slice of the population we judge you against.” And then, there are these other groups where we feel worse about it. And so again, as I said, that’s where you can kind of see an undercurrent in a lot of Justice Thomas’s opinions of this resentment of the sort of privileged white liberal who is -- appoints themselves the arbiter of who is most deserving of sympathy and additional attention and consideration. And then, the inevitable result that some people are going to feel excluded by that process. And so I think -- I would say that I think probably the folks in these universities are trying to do their best. They’re told what the mission is and they’re trying to execute it. I feel like on a deep-down level inside, they know that they’re making these judgement calls that if it was perfectly transparent would make people very uncomfortable.

 

So for instance, in the University of North Carolina case which is the companion case to the Harvard case at the Supreme Court right now, there’s one exchange. You can see a text message right now where one person says, “2400 perfect SAT.” The other person says, “Wow. Brown?” And the other person says, “No, Asian.” And of course, that -- setting aside the crassness of the discussion, I mean, I think a lot of people who are classified as Asian actually would also identify as brown such as those from India -- South Asian countries. But you’re seeing that that’s what we’re dealing with. These are human beings. They’re imperfect, and the categories of criteria they’re told to implement are imperfect. But I think, if they were given the truth serum and they were honestly talking about what they were doing, it would be -- it would come off as so flawed, so biased, so limited, so inevitably intractably dehumanizing as you’re trying to weigh these factors and think, “Who do we feel is the most underprivileged?” Or “Who looks the most different from the typical person of this profile?” It would outrage people, and the whole system would come crumbling. Which is why Harvard fought so hard in discovery to keep so much information out, and these cases get delayed because I think you can’t -- there’s just no way to talk about how it really honestly works behind the scenes without engendering a lot of criticism and resentment.

 

Art Coleman:  Can I -- let me just say this in response to that on the point of transparency which resonates for me. I will be the first to say, I don’t think higher ed community writ large has done a good enough job about being transparent about our processes and practices, and there’s a whole conversation about that. But that said, it is also a deliberative judgement around lots of factors that are unique and tied to private confidential student files – like, the notion that you would be perfectly transparent about who’s getting in a who’s not, forget the issues of race and ethnicity, you’d have chaos tomorrow because, at a fundamental level, as my admissions friends constantly remind me, it’s fair if I got in, and it’s not fair if I didn’t. And so there is this lens and this layer of complexity that goes into the mix of decision making that I think -- I have been an advocate for more transparency over time, but that sort of perfect transparency, at some point then funnel the applications into some computer, and let test scores and grades be the defining feature which I think totally would destroy the process and is not any notion of authentic merit, for reasons I’ve alluded to. But I don’t want to see us get there either.

 

Alison Somin:  Could you elaborate a little bit more about ways in which the admissions process at the typical selective college could be made more transparent, while acknowledging that there are concerns about applicant privacy etc. that limit the extent of true transparency?

 

Art Coleman:  Yeah. In my ideal, I’d have a very clear articulation of the array of mission interests -- not just the diversity interests, but clearly, the diversity interests -- that go into the class, again, that these admissions teams are trying to assemble. Some people are going to get in. Lots of qualified people at selective institutions are not going to get in. You cannot admit all qualified applicants. So the question is, what judgement you’re making around what set of factors in that context. The models I like the best are when I then see an institution take that more generic global sense of sort of mission and goals and collapse it into a set of, what are the qualities of students we’re looking for? Who are the students? What kind of backgrounds? What kind of interests? And that you get a little more concrete there, and then, you then articulate, “And here are the factors we consider and why.” It’s not just, “I’m considering x, y, and z.” “Here’s the rationale for considering x, y, and z.”

 

And I’ll go back to demonstrate just how old I am or how much of a nerd I am, but I remember this policy in great detail. One of my favorite ever admissions policies that I’ve ever read or have been part of developing was the University of Michigan’s Law School policy in Grutter. And what I loved about that policy, which was quite extensive and frankly unlike almost any I think I’ve ever seen, was not only that it talked about the institutional goals, and it talked about the importance of many factors, and it emphasized the importance of grades, it emphasized the importance of tests, it emphasized the importance of lots of other background elements, but it then surfaced actual concrete examples scrubbed for identity to say, “And this is how this principle or this interest plays out in our process. And here’s student A, and here’s student B, and here’s student C. And this is what was decided, and here’s why.” It gives a kind of almost tangible feel to the process in a way that I think is -- materially shapes an understanding that you don’t often get from colleges and universities.

 

Alison Somin:  Thank you. An additional question, in your opening remarks, Art Coleman discussed that universities should avoid using race mechanically per the Grutter decisions and the Fisher decision interpreting it. I understand that many say that some institutions that claim that they’re using race flexibly and holistically are in fact, when you look carefully at their numbers and the consistency in their outcomes across years, that they are actually using it mechanically. I believe Rehnquist raised this point in his dissent in Grutter. I’m curious what you both think of this claim.

 

Art Coleman:  I think you’ve always got to go behind the numbers. Like numbers -- statistics as the court, I think, in both of these cases said, provide important information but they don’t define the totality of the information. So the mere fact you’ve got consistency is, I think was true in the law school example, doesn’t tell you that somehow there’s this mechanical operation at play. And I think, in fact, the majority opinion in Grutter rebutted that point. So I would always consider data and numbers to be the flag or a trigger for further inquiry, but I don’t think you can step back and say, “The numbers look like this, therefore there’s discrimination.” If that were the case, then the disparate impact standard which is triggered by statistical discrepancies would then be the foundation for defining discrimination, and that’s not the case there either.

 

Cory Liu:  Well, I think you will inevitably see quota like thinking because I question the extent of the educational benefits of diversity as conceived of by these universities, but I think at least part of the motivation for these policies, I think, is just political in terms of, I guess, what you might call PR or virtue signaling or whatever terminology you want to use, which is that if the race doesn’t look a certain way, then -- we’ve seen this all before, The New York Times, “X percentage of this institution is this.” “This many percentage of law firm partners are women.” Or “This many percentage of law firm partners are people of color.” And in order to avoid that criticism, you’re going to have to take whatever steps it takes to get the numbers up. And so that seems mechanical to me. That seems like a quota. Because, I mean, quite frankly, if you didn’t have the numbers and the outcome, you would be criticized as to whether you were even doing this race conscious or whatever -- identity conscious policy correctly. Are they even doing it if the numbers don’t look different?

 

So I think there’s a political criticism component to that. And should a school be allowed to consider that? I can see why they would want to in terms of, if it’s a private university, they got to compete in the marketplace for donor dollars and prestige. If it’s a public university, they have to appease the legislature and get funding. And I’ll just say, here in Texas, University of Texas and Texas A&M, they know how to play that political game well. They’ve got lobbyists at the capital, the football game box seats. I’ve never seen that much political activity in one place. It’s just not that different from the capital. And so these -- it’s about maximizing their power in kind of a political way. And so what you end up seeing is, in the same way you might figure out, who do we endorse for a campaign? Or who do we feature on a political slogan? Or who do we appoint? When you see those identity politics come in there in terms of trying to be popular as a political party, you see that same kind of thinking come to universities.

 

So then, the question is, is that what we want our universities to be doing? And, in my mind, it shouldn’t be. I think I can understand why in politics, you might do that because you’re – again, we’re a democracy. And so we have to make those calculations as to what’s popular. But I think education is supposed to be something that transcends race, and so there's a wonderful law review article that I wrote. W.E.B. Dubois and The Souls of Black Folk talks about how when he’s reading Aristotle and the great books, for a moment this veil which obscures his ability to -- his interactions with people of other races, it lifts, and we’re all just discussing ideas. And this is something that carries us outside of that, at least in this context while we’re having this educational discussion.

 

And unfortunately, I think when you allow -- when you prioritize part of your educational mission as this political kind of diversity, I think you end up politicizing campuses more. And it detracts from what I ultimately think -- higher education should be something that transcends race. That we’re all studying the same curriculum whether it’s in the sciences, the natural world, these great books, these ideas that ought to persist regardless of time over centuries, regardless of their race -- that there’s something worth studying there that transcends all of that.

 

Art Coleman:  I’ll just -- I’ll say, you referred to, like, the focus on diversity as what’s popular. In both my lived experience and my worldview, it’s also what’s important. Like, I don’t think you have the Fortune 500 companies and others -- our retired military generals that have weighed in on Grutter, and Gratz, and Fisher, and I would guess are going to in the UNC and Harvard cases talking about the imperative of diversity with a focus on racial and ethnic diversity for their organizational and institutional success being simple sort of politics or popularity. I think there’s an actual intrinsic reality. We won’t get into it today. I think there’s a foundation of systemic discrimination and racism that undergirds a lot of this.

 

But that’s not really -- the focus here is less about that, although it’s connected to that. And it’s about what we are achieving both educationally and ultimately, for the work force and for civic engagement in a world that is increasingly connected and in a society that is increasingly diverse. And so this notion of a kind of, sort of neutral science -- I’m putting words in your mouth -- but it’s the same science for everybody, like, what about the medical conditions that never surfaced that effect women uniquely or certain races uniquely until they were part of the medical school cohort? Like, you get a richness -- you get a breadth of perspective. You get a different lived experience that comes to the table for better decision making on a lot of fronts. And so I think there’s a real grounded reality in that not only from education but to the professional world of traditionally conservative corporate America that is weighing in pretty strongly on this set of issues.

 

Alison Somin:  Thanks. Since we have just a few minutes left, I’m going to turn to some of the questions for the audience. One question asks about the tension between the diversity goal and the rise of some racially separate affinity groups, dorms, graduation ceremonies on campus. If a university claims to be motivated by diversity but then, undertakes these programs that seem to undercut racial mixing or racial cross -- socialization across races, to what extent can they validly claim to be motivated by diversity in admissions goals?

 

Art Coleman:  I would say, I think it’s at least theoretically possible you can do both depending on your sort of broader design, but I will also say this, and I had some experience with this in my OCR days in the dark ages, in my view, under Title VI and Equal Protection, but particularly under Title VI, institutions can’t come in and then say, “I’m creating this organization or this enterprise within my institution, and only students of x color can join.” It’s got to be open. It may be focused on it as a matter of subject matter, as a matter of interest by students that may attract certain students by race or ethnicity more than others. But the notion that somehow, you can say, “This class or this program or this student activity is limited only to certain students based on race,” I was part of a lot of the conversations and enforcement actions where we said that would not hold up under Title VI. I can’t really speak to the issue of graduation and other sort of broader programs like that because I’m not familiar with those details, but I worked on a lot of programmatic design questions. My very thorough view is that door has to be open, even though it can be targeted as a matter of subject matter or educational focus.

 

Cory Liu:  I suppose true diversity means making room for self -- people’s free decision to self-segregate in that way. I don’t know. I’ll just say, from my own experience, I’ve never -- I certainly do share an affinity with other Asian Americans, but I’m also -- I’ve never made that one of my principle social groups just because I don’t see the value in limiting the people you associate with to just such a small percentage of the population. So I think that certainly, the extent to which you have separate dorms or graduations, I think that’s a troubling phenomenon. And I’m not really serving the minorities’ best interests because I think we have to know how to interact with people from backgrounds. But that’s just kind of -- it’s interesting, in some ways, diversity sows the seeds of its own destruction. I think in a truly diverse population where different groups and different ideas are allowed to flourish, you’re going to find the rise of more – whether it’s like black nationalism or white nationalism or different sort of ethnic identity groups. I think, the more race conscious we are, I think it does give rise to that type of discourse. And so I certainly am not in favor of that. But it seems to be where we are today.

 

Alison Somin:  Thank you. We’ve gotten a couple of audience questions about cases where racial preferences and class preferences would seem to cut in opposite directions. There are questions about the fairness of giving large preferences to applicants who may be from an underrepresented racial group but come from privileged backgrounds versus those who -- versus the children of recent immigrants who have come from poor backgrounds but are from a racial group that’s represented or “overrepresented.” I wondered if you can speak to the tension in these cases and whether you think that current practices at most universities are fair in this regard.

 

Art Coleman:  I don’t -- my experience, and that’s all I can speak to, obviously -- my experience is not that you’ve got this categorical divide in that way because it goes back to this integrated set of factors. I will say, with respect to students of color who may be more affluent versus not, I mean, one of my critiques for much of the dialogue over time has been the assumption that the consideration of racial experiences and backgrounds from all economic backgrounds can’t be at play. I actually think the term affirmative action is a misnomer for what we are actually talking about in these cases. This is not a remedial designed program. This is not fixing issues of social justice from the past. It is a forward-looking, mission driven educational goal. And I think, in that context, you are looking for students of color who bring affluence. You are looking for students of color who don’t. you’re looking at that sort of broad range and mix because that’s the core of the design. So I don’t see it in those kind of categorical terms because that’s just not the way I experience the work of admission officers in that way.

 

Cory Liu:  Well, I think, if I’m understanding the question correctly, it’s about to what extent socio economic diversity can be seen as mapping onto racial diversity. But I think it’s noble and depending on the university’s mission to want to bring in students from underprivileged backgrounds socioeconomically, I think I can see where that comes from. I don’t think race is a perfect proxy for socioeconomic status, as you said, you have privileged students who are minorities and white students who are come from very underprivileged backgrounds and had a lot of difficulty growing up. So I think I could be in support of socioeconomic diversity policies that, especially, I think at a state university where there is some consideration that state funded activities ought to prioritize -- whether it’s the entire geography of the state, all these different communities that don’t get as many benefits or as many privileges and that have suffered disproportionately certain hardships.

 

So I can see the value of that. But I still think there’s going to be that New York Times headline or the twitter thing that says, “X percentage of the school is this.” And that type of discourse is just very common. I think anyone who finds themselves in the hotseat of having to make these difficult decisions will be the recipient of that type of criticism. And so that would inevitably give rise to the question of, “Do we take an any means necessary approach to get the numbers to look a certain way, or do we live with that criticism and understand that well, sometimes -- not every institution is going to be this perfect match of the demographics of the community. And sometimes, if you try to force it, it’s going to give rise to problems. And so I think part of it is just recognizing that there are those downsides that are not often talked about in terms of what has to be done to accomplish making the school look a certain way or to get to these x percentages.

 

And it’s sort of -- whenever you politically, whether it’s a corporation or a political party running a country, you set a goal and you don’t sort of describe what it takes to get there. You just look at the number or the outcome. My parents grew up under communism, and they said, “We’re going to surpass Great Britain in five years.” Someone just said that because it sounded good, and it was political. And what they ended up doing was, they had to export all their food. And then, people ended up starving to death because they were trying to accelerate the growth of the industrialization so fast. And so whenever you have that kind of just throwing out numbers as targets, I get very worried at what the costs are and the purpose of me kind of doing these talks is just to highlight them and to show that there are costs to achieving these goals whatever the intentions -- however noble they might be.

 

Alison Somin:  All right. I think we are passed one o’ clock, and this was supposed to be a one-hour long presentation. I think we’ve had a lively discussion and gotten lots of great questions from the audience. Thanks to all who attended.

 

Cory Liu:  Thank you.

 

Art Coleman:  Thanks very much.

 

Alison Somin:  Thanks to our speakers for your illuminating perspectives.

 

Ryan Lacey:  And on behalf of the Federalist Society, I would like to thank our experts as well for the benefit of their valuable time and expertise today. And I would like to thank the audience for joining us and for participating especially with all those great questions. We welcome listener feedback by email at info@fed-soc.org. As always, please keep an eye out on our website and your emails for announcements about upcoming webinars. Thank you for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.