Courthouse Steps Oral Argument: SFFA v. Harvard

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Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin and I'm Associate Director of Practice Groups at The Federalist Society. Today, we're excited to host a Courthouse Steps discussion on today's oral arguments in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. We have a great panel with us today who bring a range of views to the topic. I'll keep intros brief now so we can get the discussion going, but you can view our speakers' full bios at fedsoc.org.

 

      Professor Amanda Shanor is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania Wharton School where her scholarship focuses on constitutional and administrative law. She has particular expertise in the First Amendment and worked on the Masterpiece Cakeshop case while working in the ALCU's National Legal Department.

 

      Devon Westhill is President and General Counsel of the Center for Equal Opportunity, a nonprofit organization that promotes equal opportunity and nondiscrimination. Mr. Westhill speaks widely on the topic and related issues in the media and at events across the country and his writing has been published in numerous outlets including the Wall Street Journal and National Review.

 

      And our moderator today, Curt Levey, is President of the Committee for Justice, an organization devoted to advancing constitutionally limited government and individual liberty. He's a veteran of Supreme Court and other judicial confirmation battles and serves on the executive committee of The Federalist Society's Civil Rights Practice Group.

 

      After opening remarks and discussion between our speakers, we'll go to audience Q&A. So please enter any questions for the panel into the Q&A function at the bottom right of your window. And finally, I'll note that as always, all expressions of opinion on today's program are those of our guest speakers. And with that, Curt, the virtual floor is yours.

 

Curt Levey:  Thank you, Jack. Well, we're getting to you a little bit later than we had planned. It was an oral argument for the ages -- lasted about five hours for two cases. So you can't say the Court didn't give this issue the time that it deserved. I kind of like it, it's -- before Covid, it used to be each case gets one hour and it's pretty much a hard cut off. But I kind of like it this way.

 

Other than how long the argument went and the fact that O'Connor's reference at the 25-year eliminating Grutter was debated, my takeaway is that the arguments haven't changed much since Grutter and Gratz were argued. That's a case that me and my colleagues litigated 20 years ago. That makes me feel very old. For those too young to remember, Gratz and Grutter were lawsuits against University of Michigan's college and law school respectively. We lost the law school case and won in the college case. But it was mostly a loss because in Grutter, the Supreme Court said the educational benefits of intellectual diversity are a compelling interest that can justify at least a modest narrowly tailored use of racial preferences in admissions. It replaced the less decisive divided opinion in Bakke from 25 years before that.

 

And I'll leave it to the speakers to debate whether the narrow tailoring part is real or fiction, but for one way or the other, diversity rational for race-based admissions has become a justification for the practice ever since. And that's what's at stake today. Although the plaintiffs and courts have focused on the alleged harms done to Asian applicants, this case is really about whether the larger diversity rational survives. Although we heard some references to possible remedial justifications for preferences, the school's attorneys disavowed that. They all made clear that they just want Grutter to be upheld. So I'll turn it over now to the speakers to tell us how the diversity rational faired today. And let's start with Devin.

 

Devon Westhill:  Thank you very much, Curt. And really appreciate being a part of another Federalist Society program on a really fun topic. As Curt suggested, this was a marathon of arguing -- almost five hours -- didn't get lunch. I think we're going to have [indiscernible 4:37] at 5:00 for food before trick or treating and that's a good thing so I don't fall out going door to door tonight with my children.

 

Yes. It was a stimulating five-hour simulation. What I want to do I guess is just -- and there's absolutely no way that we can just cover everything that was covered during these arguments. So hopefully you'll have your questions, audience, for specific things that you want to hear about, and we'll respond whether those things were covered and how they were covered. I want to go through each one of the justices and discuss what I thought their main interests were only briefly. Then I also want to talk about a thread that I think -- or threads that run through the UNC case and the Harvard case that seem to be of most interest to Court. Let me start there actually.

 

I think the biggest question that the Court had for the advocates today was, what's the end point here? We're approaching now -- and it was referenced several times by several of the justices -- the 25-year termination date of the Grutter opinion that Sandra Day O'Connor wrote to the Grutter opinion. What weight does that hold? Are we going to see an endpoint at that time? Is that an automatic trigger that ends race preferences in college admissions? Is it even legally a part of that decision? I think for the most part the advocates suggested that, no, it was just an expectation that the majority put into the opinion. It's not binding in any way. And a number of other things I would get into some detail in the question-and-answer section. I think I've got some direct quotes that are interesting.

 

The second really big question, I think, was, what are the benefits of a diverse student body? This was a question that I think Justice Thomas asked at least three times with three different advocates and got a number of interesting responses. It's something that I've always thought is a difficult question. One of the advocates for North Carolina, North Carolina Solicitor General Ryan Park, suggested the benefits were fivefold. One, a deeper, richer learning environment, richer more creative thinking among students, greater racial happiness and harmony, folks who go to school in a racially diverse climate perform at a higher level -- he gave an example of stock trading -- and reduction in group think. I don't think any of those go directly to Justice Thomas's question about, how does that help you learn physics better? Or differential equations and the like. But those are elements that would go to an enriched learning environment which I thought were fairly good answers.

 

Justice Thomas asked the question of Mr. Hinojosa as well. He suggested that there are three things that benefit students academically by diversity. One was fostering innovation, that it broadens the perspectives of the students, and that it reduces stereotypes. I certainly don't know about that last point. One of the arguments on the other side of the race preference question is that it may reinforce some ugly stereotypes about black and brown people if they're given massive preferences to go to an institution that they're not academically qualified for. So I don't know exactly where that -- I don't believe Mr. Hinojosa gave a citation or reference to where he got that suggestion from. But again, I don't think terrible answers to the question that Justice Thomas asked on several occasions.

 

There were also suggestions that -- from the justices themselves -- that there are benefits to diversity for a number of different reasons not least of which that, on college campuses, these individuals are going to be leaders in our country, and if we can make sure that these campuses are diverse, we will know that our leadership cadre in the future will have diversity as well. That's good for a lot of different reasons. And this gave a sense that some of the justices -- Justice Sotomayor and Justice Kagan, who suggested this -- suggested to me that they would be willing not only to preserve the current Grutter diversity rational for higher education but potentially even expand it to other areas which I thought was a little curious.

 

There was also a lot of talk about race preferences or race consciousness being a small factor among many in admissions decisions. And so why should we really care too much when it created a strange tension, when on the other hand or the other side of the coin, the suggestion is that, well if we get rid of it then the sky is going to fall. It was a bizarre and interesting tension throughout both the UNC and the Harvard argument.

 

And then we heard -- and actually, I don't think we heard at all from Justice Jackson on this point but -- although we did in Merrill oral argument about what originalism leads to in terms of the Fourteenth Amendment. There was some talk about Title Six as well in the context of originalism. I think at the end of the day -- so we got to a point going back and forth on this originalism thought -- that the history is mixed here. Largely, the laws that Congress was passing at the time the Fourteenth Amendment was ratified that may have been race conscious or seemed race conscious made more sense then and they were really remedial. Freedmen's Bureau, for example, was referred to and a suggestion was made that, well that was remedial, and it made no racial distinctions, which is what history bears out. In fact, there were white "refugees" from the south who benefited from provisions within the Freedmen's Bureau.

 

I want to make sure I'm right about this particular point. It was Patrick Strawbridge who was arguing for SFFA in the UNC case, and he suggested that the best originalist case for the Fourteenth Amendment being color blind or for the principal that we cannot make distinctions based on race in any context is the US brief  -- reargument brief in Brown. So I wanted to make sure that I mentioned that. Now, really quickly, I think generally, the chief justice, who a lot of people that I've talked with were concerned might waiver a little bit on this particular difficult issue based on his institutional instincts, notwithstanding what he's written in the past on racial distinctions, was quite active. He seemed very friendly to the petitioners and advocates in this -- today. And he functioned quite frequently as a traffic cop when things were getting a little feisty or heated and interrupted his colleagues two or three times -- at one point, asking Justice Sotomayor to allow one of the advocates to actually answer the question she had asked. Very interesting and also incredibly interesting was a comment that he made in the UNC argument which was, "Asians are discriminated against." He said, "Asians are discriminated against in higher education" which I thought was quite a definitive statement.

 

Justice Sotomayor along with Justice Kagan, I think, were very, very active, suggesting that they had not changed their views on whether or not Grutter should stand or fall. In fact, as I suggested, it almost seemed as though they were suggesting the diversity rational in Grutter should expand to other areas of American life which a curious thing. In fact, Justice Sotomayor -- I wrote down this quote -- said, "Race is part of culture and culture part of race." I'm not fully sure what she meant by that, but it did suggest to me that she would support potentially race consciousness in other areas of American life.

 

Justice Kagan suggested that it's important that we have diverse doctors, diverse judges, and I think made an oblique reference to Justice Kavanaugh when she suggested that judges should be able to look at the racial diversity of their clerks or all sorts of diversity of their clerks. Because, as folks may know, Justice Kavanaugh, I think his first term, had only female clerks and has made an effort to have a very diverse clerk group each term.

 

Justice Jackson was really quiet in the Harvard case because she's recused from it. But her comments in the Carolina case were sort of interesting. Again, she didn't go to -- she didn't talk about originalism, I think, hardly at all or at least, she didn't start the conversation on originalism and what's required under the Fourteenth Amendment. She made comment about having concerns regarding standing and how the use of race -- how race is used in college admissions and therefore, how applicants are injured. And another interesting point which no other justices seemed to pick up on or to comment on and that is, it seemed as though she thought the fact that identifying your race in your application to a university being voluntary helped her case somehow. I don't understand how it does. I've been thinking about that in the last hour that I've had a break and I don't understand how that furthers an affirmative action scheme like the one in Carolina.

 

Last two things. Justice Gorsuch seemed to be the justice who was most interested in religious affiliation and bringing up the issue that Harvard excluded Jewish applicants historically and that this looks a lot like, maybe, that and probing into that question. And then finally, I think the biggest moment in the five hours of oral argument -- and hopefully, Amanda, you didn't lose your connection during this, but if you did, here you go. Seth Waxman, a very, very accomplished lawyer, gave away the case in Harvard, I think, when he was being pressed pretty hard and quite frankly, I think his entire argument was -- he struggled the entire time. Seth Waxman gave away the bag when Chief Justice Roberts was questioning him pretty hard, and Mr. Waxman replied to a question asking whether or not -- basically, if there is a tie academically between two different candidates -- whether or not race has been and can be a determinative factor in breaking that tie. He said, "Race can be a determinative factor." Didn't expect that one.

 

In the Carolina case, the North Carolina SG had the same question and avoided it, but Mr. Waxman said it can be a determinative factor. And "Just as," as he went on, "being a very accomplished oboe player might be a determinative factor as well in a tie academically." And the chief justice raised his voice in replying to that -- the suggestion that those things are similar -- by saying, "We did not fight a civil war over oboes." A very interesting exchange indeed. I'm going to stop there. Hopefully, we get some good questions, or any questions really are welcome. Thanks.

 

Curt Levey:  And I'll ask a few questions and turn it over to the audience. But before we do that, let's hear from Amanda.

 

Prof. Amanda Shanor:  Hey you all. Thank you so much for coming. It's great to be here with you and to talk about, I think, some of the most important cases being heard this decade. So I guess I want to just highlight a few themes. I also want to be quick because I'm more interested in your questions than our discussion. The first is originalism. Devon is right that Justice Jackson didn't raise originalism but a number of the justices from all different parts of the bench raised the question of, what was the original intention of the First Amendment and what did people at the time understand it to be?

 

And there were a number of briefs that argued that there are significant legislation that we might describe today as affirmative action. And I think I've said this in other panels, but if you think about, what is 40 acres and a mule? 40 acres and a mule sounds a lot like affirmative action to me in light of the nation's history of not just slavery, but of systemic oppression of black people. And a number of those programs were open to all black people, not just to formerly enslaved people so they're not remedial in the narrow way that the Court has understood it to be in other contexts.

 

One of the things I thought was really interesting -- I always like listening to Justice Barrett's questions. She asks really smart, and I think, different questions than a number of the other justices. But she said from the bench that that is the case. That the history shows that, at the time of the Fourteenth Amendment, the Fourteenth Amendment was not understood to be colorblind. I thought that was really interesting. And then she asked a smart question about, what does that mean? Does that mean you're not supposed to have strict scrutiny or does it -- how should we understand the history to matter?

 

And I guess -- and then Justice Jackson's point on this -- she was the original one who had raised this question of originalism and the Fourteenth Amendment in the Merrill case about voting rights. She said we can agree that the history certainly isn't just colorblind. And if that's the case, is there enough history to overcome stare decisis? I thought that was an interesting way to think about it. I guess the most important thing I'll say of the things is, I'm really interested to see how whatever majority we see talks about history because history and tradition were so critical in Dobbs.

 

And I think, insofar as the Court is -- a number of the justices think of themselves as originalists. I think there's some hard questions here. Or I guess I'll say, given my read of the history is, like I said, it was very clear around the Fourteenth Amendment that the goal of the Fourteenth Amendment was to make sure that there was racial equality. And that meant that there's something different between Jim Crow laws or Black Codes on the one hand and things like what the Freedman's Bureau was doing which was trying to ensure forms of racial equality. Okay. So I think the originalism point will be really interesting to see. And I am not sure how different members of the Court are going to come out on that question or if they're going to decide to dodge it all together, which they might do.

 

One other argument that I found really interesting was Justice Jackson had a hypo in which she said, "Okay. What if you have a student who's from five generations in North Carolina and it's a white student and they say, 'My family's been here from before slavery. Five generations have gone to UNC, and I would really honor my family to be able to go to UNC.' And another student says, 'My family's been in North Carolina since before the civil war,' or 'My family was enslaved. They've not had the opportunities to go -- people in my family have not had the opportunities to go to UNC and it would really honor my family and my history in North Carolina to do that." And she basically -- she flipped the argument on its head and she said, "Under the petitioner's argument, the first guy, the white guy, can get a -- can have his history give him a bump whereas the second guy cannot because it would be understood to be a plus factor on the basis of race," including, the petitioner said, any kind of basis of your family and slavery is considered such a proxy for race that it couldn't be a plus factor in any kind of university consideration. I thought that was really interesting -- an interesting argument. And one that, again, we'll see whether or not the Court deals with it.

 

The final thing I'll say is, what was really interesting to me was the -- I have said before, depending on how these cases come out, it strikes me that things like Title Seven and the race neutral plans are definitely under threat because if the Court were to say, "Educational -- diversity in educational context is not a compelling interest," they might say, "If you adopt a race neutral plan but with the goal of encouraging racial diversity, that alone violates the constitution." And I took the oral argument not to be going that direction whatsoever and I think that's fascinating because it sounded to me like there are enough justices on the Court to protect race neutral plans even if the race neutral plans are adopted in part for the reason of encouraging racial diversity which I think would mean that things like the top ten percent plans, Title Seven, that would really effect -- there's a case coming up now, Thomas Jefferson High School, raising the same question I think. If I'm right, I think that that's a different outcome. It may mean that we get a narrower opinion than I had expected and some of the other commentators has expected.

 

Oh, wait, one more thing. Okay. One more thing is, I think it's really interesting too -- the SG put forward a strong argument about national security interests in the military. And the justices were interested in that and whether or not military schools and military issues should be treated differently to which the SG responded, essentially, ROTC programs are important. They're important not just to us but also to business in terms of racial diversity in nonmilitary academy settings. But also, she said basically, for the 25 years question, places move at different paces. You have a very different history of race in the context of North Carolina. I'm from Atlanta. I can tell you that is true. And so it may be the case that some states and some schools -- it would be unconstitutional for them to use any form of race conscious admissions whereas that -- we shouldn't think that's the case in other contexts. Which is to say, the 25 years rule was aspirational, and the problem is not that race conscious admissions hasn't worked but that our society hasn't become as less racist as the Court had hoped in Grutter. Okay. I'll be quiet. I'm interested in your questions.

 

Curt Levey:  Thank you, Amanda. Let me ask a few questions. Well, let me start out with your last point. Which is, you said that society is still racist. But isn't that something that would go to a remedial justification for preferences? And again, the lawyers for the schools disavowed any remedial argument here.

 

Prof. Amanda Shanor:  No. I think it goes to the question of whether or not the 25 years is a rule of law or whether or not instead we should understand it to remark on the possibility of us getting rid of racial considerations in college admissions.

 

Curt Levey:  Now, I mean, I thought it was interesting that the solicitor general pointed to the states in which they don't use preferences and the fact that those states have maintained diversity for the most part and gave that as an example of the fact that the end is in sight. But those are states not where all racism has been eliminated but those are states where, by law, they can't use preferences. So doesn't that make the argument for the other side, that the only way we're really ever going to get rid of the use of explicit race is to just say it's illegal and force schools to use race neutral alternatives.

 

Prof. Amanda Shanor:  I don't think so. I don't know why -- I don't think that follows, at least. I mean, it strikes me that, particularly if the Court were to take the invitation from the solicitor general and Seth Waxman, Counsel for Harvard, and remand that case and say, "Narrow tailoring is really narrow tailoring," that would encourage schools to go faster in the way already that Gratz and Grutter have for a number of schools. So I don't necessarily think so. I think the real question then, again, like I said before is, is the Court then going to uphold or strike down race neutral alternatives that are undertaken with at least some hope of encouragement of racial diversity?

 

Curt Levey:  And I mean, I agree with your read, by the way, which is that this Court is not ready to say that race neutral alternatives are all off the table. And can you live with that? I mean, would a world in which race wasn't used explicitly but largely the same effect was accomplished in a race neutral way, would you be happy with that?

 

Prof. Amanda Shanor:  So I mean, would I be happy with that? Yes. I think one of the questions though is, is that possible in this world and society in which we live at least right now? And with a sufficient number of the schools that it's not and that's a factual question, like whether or not you could have a -- if you could have Harvard and it'd still be Harvard and as competitive and intellectual etcetera and still not have any consideration of race and still be diverse, I think that that's a factual question. I mean, were Justice O'Connor correct that there would be no need of this 25 years later, that would be amazing. I just don't think we live in that world, and I also don't think that affirmative action programs contribute to racial strife or the like but instead the opposite, as a bunch of the filings I think demonstrate.

 

Curt Levey:  Devon, are you happy with race neutral alternatives? I'm guessing that you would say, "Not if they are merely a cover for racial balancing." But what if they're -- that's partly the goal and the other part of the goal is genuinely to take into account all types of disadvantage?

 

Devon Westhill:  I certainly would support that. In fact, I think it's perfectly permissible. And I do think and hope that we'll move closer to what was discussed at oral argument as well and has been debated quite a lot and whether or not there are race neutral alternatives like considering factors such as social and economic status. Now, I still have concerns, very strong concerns, about mismatch -- putting students into an environment that they're not prepared for based on -- academically prepared for -- based on a factor outside of how they tested and courses they've taken at the high school level, how they've done academically and the effects I think that are negative that flow from that. But small bump here or there because a student is from a lower SES bracket to help diversify the campus, like a campus such as Harvard which was, as stated in oral argument, not very diverse at all when it comes to those sorts of factors. I think the statistic was something like 70 or 80 percent of Harvard students come from wealthy families. Very few come from poor families. I'm not concerned about that. I am concerned at when those preferences become very, very large and lead to that mismatch.

 

Curt Levey:  Let me ask this to both of you. I would say there were two justices, both Jackson and Sotomayor who -- one got the sense are certainly not ready to give up on the explicit use of race. Where do you think Kagan stands and what do you think we can draw from the fact that she did seem very interested in race neutral alternatives? Either of you.

 

Devon Westhill:  Well, I can be very quick about this because I stated my thoughts in my intro as it pertains to Sotomayor and Kagan on this. I thought both Justice Sotomayor and Kagan were sympathetic to an idea that race should be taken into account in many other aspects of American life. So I mean, my -- clearly implies that, I think, Justice Kagan would be perfectly happy to see Grutter stand and the explicit use of race in college admissions continue.

 

Curt Levey:  Or -- all right. Let me rephrase the question, perhaps, for Amanda. Who knows what Kagan wants in her heart, but the fact that she did talk about race neutral alternatives, does that indicate to you, Amanda, that she may realize that the votes are just not there to save the explicit use of race?

 

Prof. Amanda Shanor:  Yeah. I mean, she's real savvy. She's a super smart human. I think that -- I agree with Devon that she thinks that Grutter is correct. I think she's also concerned about stare decisis and legitimacy of the Courts. If you see a bunch of her recent public statements -- this question of, how far is the new Court going to go? How far or how fast -- overruling all of affirmative action after doing away with abortion. These are big social moves in a very divisive world.

 

But I think that she may have come into it closer to what I was worried about which is that the Court was going to issue a broad holding that says, "No affirmative action whatsoever and if you even think about race, then that's unconstitutional." And that would be the biggest cut, I think, to say there's no constitutional interest in diversity whatsoever. I think that maybe what we saw today also has to do with her talking through with people and maybe trying to move people to a more moderate position. I don't know, but that would be my guess. That would be my guess.

 

Devon Westhill:  Yeah. Yeah. And follow up to that. Thank you for rephrasing the question also, Curt. But I got the sense that Justice Kagan was much more inclined to be the persuader on the left side of the Court as opposed to Justice Sotomayor who I got the sense was talking more to the American public, it seemed like, than to her colleagues. She was very strong in her positions, wasn't as interested in race neutral alternatives or at least discussing them to the length that Justice Kagan was, and just struck me as though she was not talking to her colleagues in the same way as Justice Kagan. 

 

Prof. Amanda Shanor:  I will say one of the more -- to talk about Justice Sotomayor -- one of the more striking parts of the argument to me actually came in a colloquy with her in which she was asking about -- so let me back up and say, the petitioner's counsel argued that, for example, if there was a plus factor or any type of additional consideration given to a person who wrote an essay about how they come from a family of formerly enslaved people, that that would be impermissible because it would be a close proxy for race and therefore unconstitutional. I thought that was staggering in a lot of ways. Like, what's the purpose of the Fourteenth Amendment in the context of the end of slavery?

But putting that aside, I thought it was interesting how Sotomayor drew out -- I can't remember who it was from -- the SG maybe or somebody else -- the contemporary racial problems in North Carolina that are real. I mean, you all know. We've been here for the last five years. Think about the march on Charlottesville and all this sort of stuff. It's hard to not admit that there are significant racial issues, particularly in the part of the world that I come from. And I thought that she did a good job of drawing out those contemporary harms and connecting them with the history -- with North Carolina's institutional history. For example, opening UNC to educate the children of slave owners.

 

Curt Levey:  Again, though, let me ask Amanda, doesn't that get into the remedial interest though? And perhaps even not just the remedial interest that the school might have, but isn't it more a societal discrimination type argument which --

 

Prof. Amanda Shanor:  So I don't think so. And I think that that's a legitimate constitutional interest myself. But I think that the issue goes to this background, what is society? It goes to, when can we end consideration of race in university admissions? Because those people will become leaders in our democracy in which we need people -- we need to feel that our leaders are representative of the public at large. I thought that the SG made a very powerful argument about that in terms of military leaders. And the business community has filed a very -- a terrific brief about -- signed by, like, every major company -- not just the ones that you would expect -- to say, "This is really important to business."

 

So it strikes me as not a question of remedial. It's a question of the fact that the world is not where the petitioner acts like it is. If the world was a place in which our country had dealt with systemic racism, then just race neutral alternatives would be fantastic. But, like I said, I think if you look around -- anyone looks around -- at the state of the country and discussions on race -- the storming of the capitol with tons of confederate flags -- it's not a place that I think resembles in any way the world that the petitioner seems to think it does.

 

Curt Levey:  And some of the conservative justices had questions -- I don't disagree with you that the world isn't perhaps what O'Conner had hoped it would be -- but they were concerned -- what if we don't reach that point of an ideal society? Does that mean these preferences will go on forever? And I was a little bit surprised because at least the counsel for the other side pretty much all seem to agree that if it went on forever, that would have major constitutional problems. So let me ask you about that. But let me also ask Devon, do you have any faith that we can continue this for another 25 years without it going on for -- basically for infinity?

 

Devon Westhill:  I'll answer first, and I'll say I have no confidence at all. I think it was pretty clear, when pressed time and time again, what's the end date to this? I think every -- almost every justice asked the advocates that question and there was never a hard and fast answer. I can't remember exactly some of the language that was used but it essentially implied that this is something that must go on forever. The SG suggested that we have to evaluate whether -- I wish I could remember her terminology -- there was something like sufficient diversity on campuses but did not further explain what exactly that sufficient diversity would look like and suggested that this could not be reduced to some numerical percentage to determine whether or not we could stop the outright use of race in admissions. So I -- no, I have no confidence that this would not endure indefinitely.

 

Curt Levey:  Amanda do you have more confidence?

 

Prof. Amanda Shanor:  Yeah. And I actually -- I was impressed particularly with the SG's answer to that question, which is to say, what's been happening is we're moving more and more in that direction and the consideration of race by these schools has been reduced in part because there have been strides to make the world a more equitable place. But she also point -- so the SG pointed to a bunch of things and said, "Different communities move at different rates on this question. Different parts of the country have different histories with regard to race." And so already there are places in the country that, by her lights, it would be unconstitutional for schools to explicitly consider race even as part of a holistic review but that other places it wouldn't be.

 

And then she suggested a number of different factors of how to think about -- and I think some of these are drawn from the voting rights context -- but she said, "Things like, disparities in graduation and attrition rates -- they can also measure race related issues on campus in terms of how much people in different groups feel comfortable speaking." She said, "Demographics may be relevant, particularly in a context where you see very extreme disparities between different groups." And she used the example of, what about female advocates in the Supreme Court? There's like never -- I mean, not never. She's the SG, but there are very few female Supreme Court advocates. And she said, "If you're looking at the world, it may suggest to you that that's a type of leadership position that's not open to you." And then she also suggested qualitative analysis of students and their experiences.

 

So I felt like that there was a fair bit of concrete things that she gave particularly Justice Kavanaugh to say, here are the types of things we would measure to actually decide this question that's already been met in some places in the country. And the question will be, like, when can it be in other places like North Carolina? And that strikes me just as an empirical question. And I'll say -- I'm going to be an optimist and say, I really hope, and I really hope within my lifetime that places like North Carolina are -- have open opportunities and forms of social equality that would mean, in fact, that race neutral alternatives would be great.

 

Curt Levey:  Devon, your answer implied that you don't think we're going to be able to achieve at least racial diversity without substantial preferences certainly any time soon. And I won't agree or disagree, but let me ask, if that's the reality, could one argue that society wants to live with the fiction that we have now which is that we're achieving diversity but we're also -- race is not a determinative factor? In other words, is this current state of affairs perhaps a compromise, given that diversity can't be achieved without substantial preferences?

 

Devon Westhill:  Well, I think diversity can be achieved. It is achieved in many different institutions of higher education. It's interesting that Berkeley was used as an example of where diversity was drained from the campus after Prop 209 was passed which outlawed racial classifications in higher education. The rest of that story is interesting. In fact, enrollment went up among minorities on University of California system campuses. The GPAs on average of those minorities rose as well. Minorities were more likely to graduate, as well, in the University of California system. Yes, the very, very pinnacle of that University of California system, University of Berkeley, did go down, but diversity in many other places went up. And those diverse students did much better when they were paired with an institution that was better suited to their academic qualifications.

 

I think we can do even better at Berkeley too, though, and at all the elite institutions around the country which otherwise would see a draining of minorities. If we put more emphasis on the root causes of those things that cause disparities and economic and many other aspects of American life like better schools in predominantly minority communities and a number of other factors that we don't have time or need to go into right now. But I don't think there's a, keep it the way it is and use explicit race preferences, or we have the opposite result as you were suggesting, Curt, that we kind of just live in this fiction that we're just not going to have the diversity that we need. And I think we can do better than both of those things if we focus our efforts in the right ways. I think some of the evidence, not only -- some of the evidence that was presented in the -- that was cited or referenced in the oral arguments like the California system is indicative of what we could be doing.

 

Curt Levey:  Devon, you mentioned basically the use of the diversity rational against Jewish applicants a hundred years ago. Several of the justices mentioned it. And some would argue that there's a parallel to how Asian Americans are treated today. Amanda, I'm going to guess that you don't think it's the same. And tell us why we shouldn't be concerned that the current system is just a fashionable version of what was done to Jews a hundred years ago.

 

Prof. Amanda Shanor:  So I'm concerned actually that, in systems with a lot of discretion, you sometimes have abuses of discretion. So I'm both not surprised by the history of antisemitism, and I think this is a lot of the context where you see too in employment decisions or police -- a lot of discretion can be problematic. What I heard Seth Waxman say was those aren't the facts and those aren't facts that were found both by the district court and affirmed by the first circuit. And I guess I'll say, and he was like, "If those were the facts, that would be different." So I guess I'll say, if they are doing what they were doing with Jewish Americans, that would be -- with regard to Asian Americans -- that would be an atrocity and they should definitely be held liable. I think the point on the other side is, that's not actually what's happening as all of the fact finders have found. So I don't know, but I guess I'll say, that is a concern for me, but one that, at least with regard to the Harvard thing, they say the facts are different. And this issue isn't even raised in the North Carolina case. This isn't raised in the constitutional case. It's only raised in the statutory case.

 

Devon Westhill:  The response that I heard from Mr. Waxman was really, I think, inadequate. He suggested that today's process is not the same as the process when Jewish students were being excluded from Harvard. That was an aberration that one president instituted as subterfuge to keep Jewish students off of the campus. But that's precisely what is happening in Harvard -- or that's the allegation. That based on a personal rating, which Asian Americans get the lowest score on by far, that they're doing the exact same thing to Asian American applicants now through a "character" or "personal" rating. When asked why? The answer is astoundingly muddled. I don't think there was a clear answer from Mr. Waxman on that point. I don't know if you heard it differently, Amanda.

 

Prof. Amanda Shanor:  I thought the SG answered better. But basically, that that's not what the -- no, and I'm being honest -- that that's not what the facts show and as the district court and court of appeals found. And so if you, Supreme Court, want to find different facts, then both of them suggested you should remand. And that sounds right to me if the question is a factual question. It would be interesting to see whether or not the Court takes it to be a factual question or not.

 

Curt Levey:  Well, we don't have much time left. So I better turn to audience questions. And in no particular order -- well, actually, yes. Let's start off with what was more a comment than a question where the person says, "Not a question but love the artwork behind Devon." So hopefully, that's a point we can all agree with here.

 

Prof. Amanda Shanor:  Me too. Me too.

 

Curt Levey:  Also have a question here that says, "Justice Gorsuch suggested that the solicitor general's argument undermines Bostock. Do the panelists share that view?" I thought what Gorsuch was saying was just that, one of the counsel were trying to say that Title Six does not define discrimination clearly, whereas Title Seven doesn't, but was there more to that point than I realized? I ask that to both of you.

 

Prof. Amanda Shanor:  I don't think so. I think it just shows -- oh, sorry. You can go.

 

Devon Westhill:  No, I think I agree with Curt here. Although, I would go one step further and say, although I think the solicitor general is exceedingly sharp and she was very good in the argument today. I think a disingenuous answer came out here which was essentially Title Six -- discrimination in Title Six is ambiguous whereas it's not in Title Seven. I think that really is just -- it's the exact same words. I think that was a way of saying we support race preferences, that's what we're here to do. But we also support SOGI efforts as well, so we like what you did in Bostock. Don't disturb that.

 

Curt Levey:  Gotcha. And I guess I should've said for anyone in the audience who doesn't know Bostock was the case that found that sexual orientation and gender identity were covered by Title Seven. All right. Here's a tough question for you --

 

Prof. Amanda Shanor:  Wait. Can I just say quickly?

 

Curt Levey:  Sure. Go ahead.

 

Prof. Amanda Shanor:  I disagree with that, but it doesn't matter why. But I will say, I thought what was interesting about that comment was he was staking out a textualist position at least in the Harvard case which is an interesting one and an interesting one about the relationship between Title Six and the constitution. And he seemed to be interested in breaking their meaning, and I think that that's a larger question, but I didn't hear other people taking up the textualist bandwagon. It seemed -- that didn't seem to be the center of the conversation. Okay. Sorry. Next.

 

Curt Levey:  Okay.

 

Devon Westhill:  Unfortunately.

 

Curt Levey:  Go ahead.

 

Devon Westhill:  I was going to say, unfortunately, I think. I think if we talked more about the text of the equal protection clause of the Fourteenth Amendment, we'd get closer to a reading that I think is right in a colorblind reading. But there's no talk about that, it was just the talk about the historical record which I think we really only get to if the words of the law are ambiguous which no one brought up which I was sad.

 

Curt Levey:  All right. Devon, here, well, I won't ask you the whole question because it's very long, but I'll ask you the first half. "You make the point that affirmative action has the potential to reinforce racial stereotypes by admitting black and brown students to programs for which they are not qualified. On what basis do you assume, as your point necessitates, that affirmative action tips the balance of admissions such that race supersedes qualifications and on what basis do you assume that students admitted via affirmative action come out to be both diverse and qualified?"

 

Devon Westhill:  I don't think I'm assuming that students who are admitted on the basis of affirmative action or race preferences are not qualified. I think the evidence suggests that and logic suggests that race preferences would be unnecessary if students of certain racial backgrounds who are given preferences were academically qualified. There would be no need for the bump -- for the tip. I think the evidence over the course of 20 years have borne out the case that students are placed into a position where, again, some of them do very well notwithstanding what their academic qualifications were at the time of admission -- admitted with lower academic qualifications or credentials than others. And what was the first question? Was there another question?

 

Curt Levey:  They were both sort of the same question which is, one was, why can't be diverse and qualified and the other is, why are you assuming that affirmative action tips the balance of admissions such that race supersedes qualifications?

 

Devon Westhill:  I'll just say one additional thing about that. I think I did answer both of those questions in my response. But the lawyer for Harvard asked -- was asked, essentially, if there is a tie based on academic credentials, can race be a determinative factor? Or has it been a determinative factor? Will it be a determinative factor? Can it be? He said, "Yes." He said it himself. I don't have to tell you.

 

Curt Levey:  And Amanda, here I guess this question is aimed at you. "Some of the questions about standing troubled me. If race along with multiple other factors had been used to produce a result that clearly discriminated against blacks, there is no question that the Court would recognize standing. Do Asians lack similar standing because of their color?" Let me broaden it a little bit to say that, there was a lot of debate over whether race is ever a determinative factor or just one of many factors. And I guess let me ask you, would it ever be okay if you were using race against minorities but in a nondeterminative way?

 

Prof. Amanda Shanor:  I mean, that's the suggestion of the question, right? That it's being used --

 

Curt Levey:  I think so. Yes.

 

Prof. Amanda Shanor:  Right.  That it's being used against white people and against Asian people. So I thought that question was interesting but for a different reason which is, in the context of -- it was like a push back against this idea that education is a zero-sum game. That actually, what UNC is trying to do is get a group of the most well roundedly qualified people and part of that has to do with considerations of your background including race but also other things such that it isn't -- it can't be compared to a race. And in such contexts, how do you know that you would've gotten into Harvard or UNC in this context where we're applying all these things? And doesn't that raise standing issues? And I think that there's something compelling in that. I do not think that the Court is going to pick up on it, but I do think that that came out as a stronger argument at oral argument than I had expected.

 

Curt Levey:  Well, we're almost out of time. So let me just ask these last two questions from the audience. This person says, "Gorsuch asked a lot of questions about squash players. Should we take that to mean he believes Harvard could have achieved a critical mass of blacks and Hispanics if it wanted but would have to weaken its squash team?" So I think what they're -- I think they're probably not really asking about squash but they're asking about a question that was debated in today's oral argument which is, what if Harvard has to compromise a little bit and perhaps not have quite the same standards? Is it okay to make them compromise if that's the way to get rid of -- to achieve diversity without racial preferences? And that's for both of you.

 

Devon Westhill:  Well, I would just say, yeah. I agree with that analysis. I think that's what they were trying to get at. And I'll just say in closing -- we're going to be done here in just a minute that, I thought it was really entertaining -- for five hours -- but I thought it was a very entertaining argument session. We heard about squash players, the oboe, and art museums and the importance of those things. We also learned that, apparently there's de jure segregation still happening in the country. What Justice Sotomayor was suggesting, I think, was de facto segregation when she commented on that. But in any event, five hours of fun and excitement. Looking forward to trick or treating and getting this off my brain for a little while before getting back into it to really digest further.

 

Curt Levey:  Well, Devon, I'm going to force you and Amanda to answer one last question because I think -- from the audience -- because I think it's a good closing question. And it says, "Could the Court apply the 25-year sunset clause by ending race-based admissions for the class of 2028?" Or let me say the class that's entering in 2028. That would be more appropriate because admissions is applied when you enter, not when you graduate. But do you think that's a possible solution and do you think that's something the Court might do? And again, that's directed at both of you.

 

Devon Westhill:  Yes. Yes, I do think that's something that the Court could do. I think it's highly unlikely. Although that would be better than suggesting that race preferences are now prohibited and schools institute this with all deliberate speed.

 

Curt Levey:  Okay. So you would prefer that it not wait five years.

 

Devon Westhill:  Well, certainly, but that's preferable to some of its earlier precedence suggesting -- on race issues -- suggesting, for example, in Brown that schools should desegregate with all deliberate speed which the schools with race preferences I suspect would never do it kind of like the -- after Brown -- or take a very, very long time to actually implement their --

 

Curt Levey:  And Amanda, before we let you take your child out for Halloween trick or treating, what do you think? Could you live with, I guess, that would really be six years from now, 2028 -- or do you think that's just not nearly enough time?

 

Prof. Amanda Shanor:  I don't think they're going to do it regardless. I think it's -- talking about the 25-year thing is a way of getting at the question of, when will this end and on what basis? Is this -- do we have to wait until society becomes equitable and might that be a goal that we can't reach? And you had different folks taking different positions -- more or less optimistic, but I don't think that they're going to take that approach. I think -- I could be wrong, but I suspect we're going to have a more moderate opinion than maybe Devon wants but one that again says, explicit use of race is unconstitutional but it's okay to consider race as one factor in devising an admissions scheme -- one with an eye to diversity is going to be okay.

 

Curt Levey:  Great. That's a good note to end on. And although we did go about three minutes long, I thought it was an excellent debate, and of course, having great speakers helped a lot. So thank you so much to the speakers and thank you to the audience for tuning in, especially because we were a little late starting this event given the length of oral argument. Take care, everybody.

 

Prof. Amanda Shanor:  Thanks.

 

Jack Derwin:  Thanks so much, Curt. And thank you, Devon and Amanda, as well. I was thinking just now, this might be the most arguments we've ever broken down in one of these courthouse steps programs with the double case.

 

Prof. Amanda Shanor:  This is the longer argument I've ever attended.

 

Devon Westhill:  We'll have to come back and revisit this, I think, after giving it some time to think about it.

 

Jack Derwin:  And thank you to our audience for tuning into today's event. You can check out our website, fedsoc.org, to stay up to date.