Diversity and Elimination of Bias CLE Teleforum: An update to the Harvard Case and the Meaning of Diversity in a Multi-Racial Era

Professional Responsibilities Practice Group Diversity CLE Teleforum

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The Federalist Society offers a unique opportunity for attorneys in New York, California, Minnesota, and Illinois to fulfill the one-hour “Diversity and Elimination of Bias” CLE requirement in those states.

On September 30 a federal district judge in Massachusetts issued a ruling rejecting discrimination claims in Students for Fair Admissions v. President and Fellows of Harvard College, 2019 U.S. Dist. LEXIS 170309 (D. Mass.), a case that many expect to go to the U.S. Supreme Court and potentially redefine affirmative action law.  In the case, Asian-American students allege that Harvard’s racial preferences for other minority groups discriminate against them in violation of Title VI of the 1964 Civil Rights Act.  The students introduced evidence that Asian enrollment at Harvard is less than half what it would be if admission was based solely on academic achievement; that Asian applicants receive the lowest scores on an amorphous “personal rating” assigned by admissions officials who have not met them; and that Harvard’s “holistic” admissions system, touted by the Supreme Court as the model for permissible racial preferences, was originally devised to exclude Jews.

The case raises the question of the meaning of “diversity” in an increasingly multi-racial era, and the continued justification for affirmative action in that era when its burden may now fall largely not on the white majority but on another historically marginalized racial minority group.

Dennis Saffran, a New York appellate attorney and Vice President of the Federalist Society Long Island Lawyers Chapter, submitted an amicus brief in the case on behalf of the National Association of Scholars and has written about the case for the Manhattan Institute’s City Journal.  He will review the Supreme Court’s major affirmative action precedents since Bakke in 1978 and the arguments in the Harvard litigation in light of these precedents.

 

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Event Transcript

[Music]

 

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.

 

 

Micah Wallen:  Today’s Federalist Society telephone call is titled “Diversity and Elimination of Bias CLE Teleforum: An update to the Harvard Case and the Meaning of Diversity in a Multi-Racial Era.” Our speaker is Dennis Saffran, who is a New York appellate attorney, and Vice President of The Federalist Society of Long Island Lawyers Chapter. And he submitted an amicus brief in this case on behalf of the National Association of Scholars and has written about the case for the Manhattan Institute’s City Journal. After Dennis’s opening remarks, we will then go to an audience Q&A at the end of the program.

 

      Without any further ado, Dennis, I hand it over to you.

 

Dennis Saffran:  Micah, thank you very much, and thank you all for calling in.

 

      So, since this is a CLE, I thought we were obligated to start with the case law. So diving right in, I want to go through the five major Supreme Court precedents in this area. The first is the Bakke, the famous Bakke case, which you may remember reading about in law school or maybe, like me, you were in law school when it was handed down. And that was the first time the Court dealt with the issue of racial preferences in colleges and universities on the merits. As I’ll get to at the end of this case-law discussion, they had punted several years before and got rid of case on mootness grounds.

 

      But the Bakke case concerned the UC Davis med school, which had a specific set-aside of 16 of 100 places in each class were set aside for under-represented minorities, particularly blacks and Latinos. That was a hard and fast set-aside. Only under-represented minorities could compete for those 16 slots while everybody could compete for the other 84 slots.

 

      The Court struck that down 5-4, or really 4-1-4. There were six opinions, going on for hundreds of pages. But the main ones were from Justice Brennan on the left, who, writing for four liberal Justices, would have upheld the program across the board. Justice Stevens, who was only on the Court three years then, was then a conservative Republican appointee writing for four conservative justices who would have completely struck it down. He would have done so on statutory Title VI grounds rather than constitutional grounds, but that’s something of a distinction without a difference.

 

      And, then, the swing vote was Justice Powell, whose opinion determined the outcome of the case and went on to be the controlling law in this area. And Powell strikes a balance. There are really four major prongs to his ruling. First, he holds for the first time that reverse discrimination, as it was then known, racial preferences for minorities, was subject to strict scrutiny. There was a lot of debate about that beforehand, with, generally, the progressives claiming that strict scrutiny was only applicable to programs that discriminated against discrete and insular minorities, not the programs that discriminated against the white majority. Powell rejects that.

 

      He also holds, quite notably, that reversing, redressing, past discrimination is only a compelling interest in situations where there has been a specific judicial, legislative, or administrative finding of such past discrimination. But that, if a government- or a state-funded -- government-funded entity without such a finding just wants to engage in affirmative action to redress discrimination, that that is not a compelling interest.

     

      As I was saying, Powell’s swing opinion in Bakke also held that reversing past discrimination, which had been the major justification offered up for affirmative action racial preferences, was not a compelling interest unless you had a specific judicial or administrative finding of such discrimination. So it seemed to completely undercut the basis for affirmative action.

 

      Related to that, he also held that the specific-percentage set-asides or any sort of racial balancing or proportionality was facially unconstitutional. So the specific program at UC Davis Medical School was unconstitutional. But he did hold that one of four or five proffered compelling interests by the University was -- could be a compelling interest for affirmative action, and that was diversity or, specifically, “the educational benefits of a diverse student body.”

     

      Before 1978, when Bakke came down, the word diversity was not used in the -- it was not nearly as common as it is today. It was not that often mentioned as a basis for affirmative action. It was Bakke that led to that. Also, but most notably, in doing this, in holding that the educational benefits of a diverse student body was a compelling state interest, he cites and specifically attaches Harvard’s admissions policy and related affirmative action policies as an example of the proper way to do affirmative action compared to UC Davis’s specific set-asides.

 

      And he talks about how, in the Harvard program––and Harvard had submitted this as part of its amicus brief in the case with other Ivy League institutions––Harvard talked about and Powell quotes that race was reportedly merely a plus factor in Harvard’s admissions program; that it was not a specific set-aside; that it was a very holistic program. I can’t remember if he specifically used the word holistic, but that’s the word that’s come to be used. He talks about plus factors as Harvard talked about plus factors for all sorts of different groups: the “farm boys from Idaho,” musicians, artists, football players, etc., etc. So race as a plus factor, along with being a farm boy from Idaho, is good, is okay; race as a specific set-aside is bad.

 

      Now, for 25 years after that, until the next time the Court revisited this, it was not clear if Powell’s decision was controlling. There were some courts that -- some circuits that actually proceeded to strike down all affirmative action programs, including Harvard, DIAL, holistic plus-factor programs, and there were others that upheld it across the board, though for the most part, Powell’s decision was followed. I won’t get into the esoteric of that Supreme Court -- the case law and whether a decision of one justice, that wasn’t the majority decision but swung the case, is or is not precedential. I won’t get into it because it’s not relevant and because I, frankly, just don’t understand it. But, for 25 years, Powell’s opinion was pretty much the governing law, though with an asterisk.

 

      Then the Court revisits this for the next time in 2003 in the [inaudible 00:09:45] cases Grutter and Gratz from the University of Michigan. Gratz involved a program for the undergraduate selection at the university; Grutter involved the law school. In the Gratz decision, the Court, in a 6-3 margin, struck down a program that was not quite a specific set-aside like in Bakke, but what it did was to automatically give under-represented minorities 20 out of 150 points toward admission, and 100 got you in. So they started out with a boost of one-fifth of the points they needed. And the Court says that’s very much like what you see Davis did with specific set-aside, and that’s not kosher.

 

      Interestingly, the dissent from three liberal justices was written by the same Justice Stevens after a 25-year ideological journey where he would have struck down the whole thing––wouldn’t have even allowed diversity as a compelling interest back in Bakke––and by 2003, he’d have completely upheld even the specific 20-point allotment.

 

      Grutter reached a different decision, handed down the same day, because the law school did not use a specific point set-aside or specific set-aside of slot. The law school had a more “holistic review” that was actually modeled on the Harvard program that Justice Powell had given his imprimatura to in Bakke.

 

      And two justices switched. Two Justices––O’Connor, who wrote the majority opinion, Justice Breyer––were both in the majority in striking down the Gratz set-aside but upholding the more “holistic program” in Grutter, the law school.

 

      And there were six main points in Justice O’Connor’s decision. First, she formally adopts, this time for a majority of the Court, the Powell opinion. So those esoteric questions about whether it was binding or settled -- it is Bakke -- Powell’s decision in Bakke is made controlling law. And she also specifically reiterates this holding, that the various holdings that diversity is a compelling interest but racial balancing is patently unconstitutional.

 

      Like Justice Powell, she specifically cites the Harvard plan approvingly and specifically talks about how it’s fine if race is merely a plus factor or a goal, but quotas are bad. So quotas bad, goals good. Interestingly––and it’ll become a little bit more relevant later––she stresses deference to the university, academic freedom. The decision almost, as lawyers say, sounds in the First Amendment, though it’s not a First Amendment case, of course. But she cites a lot of the precedent on academic freedom that the Court isn’t going to interfere with the university’s academic freedom to judge its admissions standards.

 

      Since she rules that universities are not required to exhaust all race-neutral alternatives for achieving the goal of diversity, but that they must give serious good-faith consideration to whether there are such alternatives, but she specifically rejects the main one that had gotten a lot of currency in the intervening 25 years of a 10 percent set-aside plan for the top graduates -- now, the top graduates, usually in a college level, top high school graduates. Like I’ll get to in a second, Texas had done that.

 

      Now, of course, she just says and rightfully so, I think, that, how would you work that at the law-school level? You know, the top 10 percent of which colleges would you use - every college in the state? But the law school attracts the national applicant pool. But she also seems to pooh-pooh the idea of it even at the undergraduate level.

 

      Then, the most important thing of the O’Connor opinion, at least one of the most-quoted portion of it, is she says at the very end that affirmative action is limited in time. “Race-conscious admissions policies must be limited in time. Government use of race must have an end point,” and closes by saying, “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”

 

      So the clock began ticking toward 2028. But query; note the inherent contradiction there. “It will no longer be necessary to further the interest approved today.” But remember, the “interest approved today” and the interest approved 25 years earlier in Bakke was not redressing past discrimination––it had been the major justification offered up before and where it would make logical sense to say, okay, our battle against the legacy of discrimination is proceeding apace, and we’ll have won it in 25 years––but, if diversity is the goal and a compelling goal, why will the interest in diversity be any less in 25 years or in 100 years, even if we’ve utterly eliminated all vestiges of discrimination?

 

      So, with that thought, we move on to the next time the Court takes up this issue ten years later, in 2013, in the first of two Fisher cases. Fisher and Fisher 1, involved the University of Texas and all the undergraduate system there. Now, it did not involve what you may have heard of and associated with Texas, which is this 10-percent plan which the Texas Legislature had instituted back in 1996. So that was at a time when, remember, it wasn’t clear if the Powell opinion in Bakke controlled, and the Fifth Circuit decided it didn’t.

 

      In a decision called Hopwood, in 1996, it struck down all affirmative action, all racial preferences, by public universities, no matter what the proffered compelling interest, diversity or whatever. In response, the Texas State Legislature and then-Governor George W. Bush set aside 75 percent of the slots at UT for those graduating in the top 10 percent of their classes, which is a race-neutral way of largely increasing minority enrollment without specifically favoring by race. And that had actually really increased black and Latino representation at UT.

 

      Despite that, as soon as––that was ‘96–– as soon as the Court decided Grutter in 2003, the faculty at the University of Texas was then freed of Hopwood and said, “Oh, we can institute, for the remaining 25 percent, a holistic racial-preferences plan, which they did.

 

      And Fisher didn’t get in under either. I guess she went to a relatively competitive high school, so she was a good student, but not in the top 10 percent. But she would have had the grades and scores to get in to one of the remaining 25-percent slots except that, since 2003, Texas had reinstituted racial preferences. Or, at least, she claimed that.

 

      And the Court, in the 7-1 decision, doesn’t strike down the Texas decision, but it seems to foretell the end of Affirmative Action. Fifteen years earlier, then-Justice O’Connor had said it would have to end. When it remands the Texas plan back to a Fifth Circuit, holding that they had been far too deferential to the university and that some, but not complete, deference is owed to the academic judgment that diversity is compelling. So, even that in play, the Court refuses to say they’re going to automatically approve diversity as a compelling interest.

 

      And it further says that no deference whatsoever would be accorded to whether the means chosen for achieving diversity, even if compelling, are narrowly tailored to actually achieve it. And, specifically, there would be no deference whatsoever to whether there were, in fact, adequate race-neutral alternatives for achieving diversity.

 

      That leads to the main holding of Fisher 1, which is that the Court “must be satisfied that no workable race-neutral alternatives exist,” that that’s a “searching inquiry,” and that a Court cannot “accept a school’s assertions” or “presume it acted in good faith.” And when we get to the Harvard litigation, we’ll see the relevance of those quotes.

 

      And, most notable, reasoned observers across the political/legal spectrum thought that this was putting racial preferences on death watch was the overall tone of the opinion. In fact -- and, if I didn’t mention, I should say now that it was written by Justice Kennedy. And you’ll see in a second why that’s very relevant.

 

      But the tone -- Kennedy questions whether diversity is a compelling interest at all. And he raises that issue and seriously suggests that they might strike it down entirely, and then says, “Well, we won’t get to it here because the Plaintiff didn’t raise it.” But very unusual in a Court decision to reach out and dangle something like that. And then he ends with Justice Marshall’s famous quote about “strict scrutiny is strict in theory but fatal in fact.” Then he says, well, it shouldn’t always be fatal in fact, but it can’t “be feeble in fact, either,” suggesting to the Court he was remanding to do a more stringent job here. So that came down in June of 2013, and that really set the tone for the filing of the Harvard case the next year, which we’ll get to in a second.

 

      At the time the case was filed in 2014, Fisher 1 was the controlling law. Then the case gets remanded down to the Fifth Circuit, and the Fifth Circuit doesn’t remand it to the district court even though the Supreme Court had just told them this has to be a searching inquiry, and neither you, Fifth Circuit, which isn’t supposed to do searching inquiries, or the district court did one.

      The Fifth Circuit, instead, just reaffirms again Summary Judgment for the university on the exact same record, and, so, the case comes back up to the Supreme Court on the exact same record.

 

      And yet––and that’s in June 2016––and yet, this time the Court goes the other way in a 4-3 decision authored by guess who -- the very same Justice Kennedy. It was 4-3 because Justice Kagan had to recuse. On the, presumably, one side, Justice Kagan recused herself because of her involvement in the case as Solicitor General. And Justice Scalia, unfortunately, had heard oral arguments but then passed away before the decision on the case.

 

      So, in 4-3, Justice Kennedy, on the very same record, now upholds the University of Texas plan. And I’ve read over Fisher 2 a bunch of times. I try to look at it any time I talk about this case, and I have no idea what it means. I’m not going to pretend to you that I understand it. And it’s now the governing law.

 

      The things we can glean from it are, it does reiterate the Fisher 1 holding that no deference is owed to the university on the question of narrow tailoring, and specifically reiterates that the university bears the burden of proving that there are no workable, race-neutral alternatives. And, yet, this time it finds that the offered race-neutral alternatives offered up by the plaintiffs, such as expanding the 10-percent plan to all 100 percent of the slots, would not be workable.

 

      Interestingly, Justice Kennedy said his reasons for rejecting the 10-percent set-aside for top high school graduates is that he says, well, it’s not really a race-neutral alternative because, come on, everyone knows that its real goal is to increase the black and Hispanic representation.

 

      But, then, what is a race-neutral alternative? If this whole idea is, okay, conceding arguendo, that diversity is a compelling interest, but can we achieve it through the back door, so to speak, by not formally discriminating on the basis of race? And Kennedy says aha, no. Because your goal is racial proportionality, that doesn’t count as a race-neutral alternative. So it’s not clear what would count as a race-neutral alternative.

 

      The Court does say––and this is the closest to a holding––that the educational benefits of diversity writ large is not a sufficient compelling interest, and that the goals can’t be illusory or amorphous. They must be sufficiently measurable. But they can’t be numerical, he reiterates, because that would be a quota. But they can’t be illusory or amorphous. So it has to be sufficiently measurable, but it can’t be a number. So how do you measure something without a number?

 

      So that’s what I’m saying. Justice Alito just eviscerates this reasoning in a dissent in the case in which he also notes, interestingly, that the Court totally ignores discrimination against Asians. Even though that wasn’t the subject of the case, but it was -- in talking about diversity, Asians were already a big factor in the applicant pool there. And Alito says the Court acts as if they don’t exist.

 

      And he also notes that the Court’s problem with the top-10-percent rule is that it “admits the wrong kind of African-Americans,” that is, that the universities, and even Harvard in the current litigation, has been very open that it doesn’t like the 10-percent set-aside, which gets you, i.e., the top graduating 10 percent from a poor ghetto school, because it doesn’t bring in enough upper-status blacks and Latinos.

 

      And maybe that’s an unfair way of skewing it because their argument is, we have to lower our standards too low if you force us to take poor African-Americans and Latinos. And Justice Alito says this stands Affirmative Action on its head. The whole point, for 45 years, has been to help poor minorities, and now the argument is no, they’re too poor. We want more affluent minorities.

 

      On the subject of dissent, one thing I forgot to mention and, going back quickly to the Grutter and Gratz case, is that Justice Souter, who was one of the liberals who would have upheld everything, had a very interesting dissent in Gratz, where he talks about the distinction made in both cases between “numerical quotas are bad, but plus factor is good,” and then he says, “What’s the difference?” Like, generally, when you say “plus,” it’s followed by a number, so how can you say a plus factor is okay but a numerical quota is bad? Plus what?

 

      Finally, on the subject of interesting dissents, I want to close out with––and it’s the last case in the material––four years before Bakke, the Court had punted the first time this issue came to it in a case called Defunis v. Odegaard by an applicant to the University of Washington Law School. By the time the case reached the Supreme Court, Defunis had been admitted to another law school and graduated another law school, so the Court held it was moot.

     

      Justice Douglas, in a long dissent from the denial of cert in the case, strongly signaled that he would have voted to strike down racial preferences. And I’ve highlighted -- and I’d recommend taking a look at the highlighted passages there. And, for those of you who don’t remember Justice Douglas, he was not just a liberal, he was the Bernie Sanders of his day. He was an old New Dealer, but he had grown increasingly radical from that time and was a pretty-far leftist on the Court.

 

      And, yet, he strongly suggested he would have sided with the conservatives and strike down racial preferences even though he stresses that he fully believes in the concept of preferences for the disadvantaged, notwithstanding grades. But he would have done it based on economic class. And he specifically says, why just by race? “What about a poor, Appalachian white or second-generation Chinese in San Francisco?”

 

      And, then, he specifically talks, I think, in two passages I may not have highlighted, at the end of page 333 and on 338. He really foreshadows the issues we’re confronting in a lot of cases now, and specifically in the Harvard litigation, of doing it by race is, as he says, “fraught with danger. Educators and courts are immediately embroiled in competing claims of different racial and ethnic groups.” And Douglas, who came from Washington State himself and, so, was very familiar with the Chinese-Japanese immigrants there, points out, “What standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit,” and talks about the history of discrimination against Asians.

 

      So, I think he foreshadowed something very important there, and I would submit to you, as we turn toward the Harvard litigation and leave the survey of the case law, that things would have gone very -- might have gone very differently, and that the history of race relations in this country might have gone a lot better if the views of the radical Justice Douglas rather than the slightly-less-radical, progressive liberals had prevailed. But I end it with that editorial comment.

 

      Turn to the Harvard litigation. Filed by Students for Fair Admission, or SFFA, which is a group created by the same legal team that had actually been behind the Fisher litigation, filed a complaint in November 2014 in the wake of Fisher 1 under Title VI since Harvard is not a public institution, but it does take gobs of federal funds, therefore subjecting it to Title VI, under which the standards are essentially identical to those under the Equal Protection Clause.

 

      They raised five claims, four of which are just taken from the factors enunciated by the Court in Grutter and Fisher 1: (a) that there was intentional discrimination against Asian-American applicants; (b) that Harvard engaged in racial balancing––that is, that the racial proportions for every race of each class were strikingly the same from year to year; that Harvard did not just use race as a plus factor; and that there were workable race-neutral alternatives for achieving diversity.

 

      The fifth claim, though, is a specific call to overturn Bakke and Grutter and outlaw racial preferences. And the plaintiffs make this case by stressing two things: one, that the burden of racial preferences now falls not on the white majority, but on another minority group that historically experienced discrimination and marginalization; and, second, on the delightful or outraging irony that Harvard’s holistic plan, endorsed in Bakke and Grutter as the paragon of good affirmative action, was actually born of an attempt to exclude another upstart achievement-oriented minority; that it came out of and was specifically devised––an expressly anti-Semitic attempt by Harvard and by other Ivy League schools at the same time––to keep Jews out in the 1920s.

 

      And the anti-Semitic history -- and it’s outlined if you look at my brief in National Association of Scholars. And my article in the City Journal’s random materials summarizes that history, and it’s eye-popping. Just quick background, the Jewish percentage at Harvard had been increasing dramatically going back to the 1890s. But Harvard, in the 1890s, had shifted its focus to a much more academic focus. Before that, Harvard and the other Ivy League schools were more schools for the social than the intellectual elite.

 

      But they began to be much more academically exclusive just at the time when a large number of Jews, with their cultural emphasis on academics, were arriving. Harvard was already 7 percent Jewish by 1900, and those numbers just continued to expand so that, by 1925, it was up to 27 percent.

 

      And President -- that didn’t sit well with a lot of alumni, with a lot of staff. There is a shocking letter in the record from -- an alum of the class of 1901 wrote to President A. Lawrence Lowell after attending the Harvard-Yale game in 1921. He writes to President Lowell, “To find that one’s university has become so Hebrewized was a fearful shock. There were Jews to the right of me, Jews to the left of me.” And he beseeches Lowell, “Isn’t there any way to bring Harvard back to the position it always held as a white man’s college?”

 

      Now, you can imagine the reaction of a president of good, liberal Harvard University to a letter like that. Well, actually, unless you’ve read ahead, you can’t. Because President Lowell’s response was that he had foreseen the perils of having too large a number of an alien race and had tried to prevent it. And indeed he had.

 

      Lowell had been fulminating against Jews contaminating his university for at least several years at that point. By 1922, he proposed an explicit Jewish quota of 15 percent. The faculty rejected that, but came up with a geographic diversity plan to try to achieve the same result by get more of those farm boys from Idaho to offset all the Jewish boys coming in from New York. They implemented that geographic diversity plan; it didn’t work. The Jewish numbers kept going up, hit 27 percent.

 

      And, at that point, Lowell proposes what, 54 years later, was attached admiringly to the Bakke decision. He proposes the institution of a holistic plan of a de facto quota. He says, “To prevent the dangerous increase in the proportion of Jews, I know only one way, and that is a selection by a personal estimate of character.”

 

      Before that, Harvard had not required personal essays. It hadn’t required interviews. It was largely academic selection. No, of course, most of the applicants came from the upper crust, but the Jews were beginning to cut into that. And, so, the way of getting around that was to impose this personal estimate of character, to require interviews, essays. And it worked. The Jewish percentage at Harvard plummeted from 27 percent in 1925 to 15 percent in 1926, and then essentially flatlined right through World War II. The numbers didn’t begin to pick up until the late ‘40s.

 

      The experience at Harvard the last four decades starkly parallels that. And, if -- there’s one thing in your materials if you look at––and I certainly don’t expect everyone to read the materials, but look at one thing. A picture is worth a thousand words. Just scroll down to Chart 1. There’s a chart, “Harvard Jewish Enrollment 1908 through 1942 and Asian Enrollment 1976 through 2010.” And, as the subhead says, “During roughly equal 35-year periods separated by about 70 years, the representation of Jews and Asians at Harvard climbed steadily, dropped sharply, and then essentially flatlined.”

 

      The Asian experience, the big drop in the mid-‘90s, came after a previous civil rights complaint, an investigation by the Reagan and Bush 1 Justice Departments. And, as soon as that was dropped by the Bush 1 administration in 1990, you see -- within two or three years, when all classes had been admitted after that investigation, you see the Asian numbers begin to plummet, not quite as starkly as the Jewish numbers had, but still, it’s pretty clear on the graph.

 

      If you look at Chart 2, Ron Unz, a conservative author, found a similar effect, an almost-conscious parallelism, at other Ivy League institutions. They all seemed to have exactly the same number of Asian applicants, with the exception of Cal Tech, which is the only elite school that has never used racial preferences.

 

      Other evidence of anti-Asian discrimination events by the plaintiffs, they found that -- I just want to jump in -- there’s a famous study of a bunch of Ivy League schools by Professor Espenshade at Princeton about 15 years ago that found an SAT gap of some 400 points between Asian-Americans and African-Americans, Asians needing 400 points higher, similarly-situated Asian, to be admitted.

 

      The gap is not quite as stark at Harvard because Harvard gets the very top minority applicants, but evidence in the litigation still showed that the gap was 218 points between blacks and Asian-American applicants to Harvard. But an Asian applicant with a 25-percent chance of admission based on grades and SATs; would have a 36-percent chance if white; a 77-percent chance if Latino; and a 95-percent chance if black. Harvard’s own internal study found that, based on grades and scores alone, the Asian percentage there would increase from 19 to 43 percent. The plaintiff’s expert at trial found it would be 50 percent.

 

      And, most notably, there is overwhelming evidence that the personal -- Harvard has a personal rating as one of its five scales, and the personal ratings of Asian-American applicants are distinctly lower than those of other racial groups. Even though their academic ratings are higher, their extra-curricular ratings are about the same, and even though the alumni interviewers in their local towns, who actually meet them face-to-face, rate them just as high as other racial groups. But the bureaucrats in the admissions office in Cambridge then downgrade them.

 

      Two notable things -- the case was argued at trial in the fall of 2018. The decision comes down a year later on September 30, and two notable things about it––one is just the incredible deference to Harvard in violation of the rules enunciated in Fisher 1 and reiterated in Fisher 2. You can read -- the passages are laid out in Point 1 of my brief, and some of them are in the plaintiff’s brief as well. But the judge refers to the numerous, considerate, diligent, and intelligent admissions officers, who would never make selections based on race, and that the effect of the personal ratings was so slight… So, time at this incredible deference to Harvard and its careful, conscientious, diligent, considerate admissions officers, and you just think, boy, if only the judge in every discrimination case talked about the defendants that way. But, of course, if any judge did, they’d summarily reverse.

 

      The second, even more striking, thing is that the court essentially accepts Harvard’s argument, and Harvard essentially argued that Asians score lower on the personal ratings because “race correlates with personal qualities that affect personal ratings.” So, in other words, as SFFA put it in its appeals brief, “Maybe the stereotypes about Asian-Americans are true. Maybe Asians, just like Jews in the ‘20s, are deficient in the leadership skills and character of a Harvard man or woman.”

 

      And you can take a look at pages 12 and 13 of my brief for the National Association of Scholars and, where the continuous references to things like this throughout the court’s opinion––I list them; there’s about 8 or 9 of them––such as “it is possible that the Asian-Americans that applied to Harvard did not possess the personal qualities that Harvard is looking for.”         Now, the court does say at the end of this whole list of intimations that -- it reassures us that it “firmly believes that Asian-Americans are not inherently less personable than any other group.” But I submit that, in light of their repeated insinuations otherwise, that this awkward reassurance at the end comes across like Jerry Seinfeld, “not that there’s anything wrong with that.”

 

      So the case status quickly -- Harvard -- plaintiff submitted its brief in February. Harvard asked for and, surprise, surprise, was granted a two-month extension to submit its brief––and perhaps it’ll be further extended due to the COVID crisis––and, then, in a litigation like this, with a 130-page decision below, we’re probably not talking about arguments scheduled until at least the fall, and then six months, up to a year after that for a decision. So I wouldn’t look for something until at least mid-2021, maybe late 2021, and, then, the cert petitions.

 

      So I just want to say quickly and in conclusion, I think this case brings into stark relief the ironic impact of race-based admissions preferences in today’s multi-racial society, that whatever the justification for them in the essentially bi-racial era of 1978, when Bakke was decided, the burden now falls heavily on another historically-marginalized racial minority and that Affirmative Action, the flagship policy of the multi-culturalists, has founded on multi-culturalism itself.

 

      And, with that, if we have any time left, I’m happy to take any questions.

 

Micah Wallen:  Thank you, Dennis. All right, let’s go ahead and try to fit a question or two in here before our time expires. All right. A question just came in the queue. We’ll go to our first caller.

 

Richard Leska:  Dennis, it’s Richard Leska. Nice to hear you. Thank you for a very illuminating and erudite discussion. Dennis, what is your prognostication about Justices Kavanaugh and Gorsuch on the issue that you have briefed in the Harvard case?

 

Dennis Saffran:  I think, when this gets to the Supreme Court, I think both of them will be inclined to strike it down and to at least find that there was discrimination against Asian-Americans. I don't know it they would go all the way to overruling Bakke, but I don’t have the doubt that some conservatives have about them or the hope that some liberals may have.

 

Micah Wallen:  All right. We’ll now move to our next caller.

 

Melissa:  Hi. This is Melissa from Minnesota. I have a current Harvard student in undergrad. And, when we brought our student there, one of the things that they kind of bragged about was that there was no majority race at Harvard this year and that this was the first year that they were legitimately able to say that. And it appeared appealing on a number of levels, but it dawned on me––has anybody considered, in any of these court cases, the goal of having a multitude and not a majority, but a multitude, of cultures and races represented on campus in somewhat of an equal way so that they can craft their atmosphere and teaching curriculum accordingly?

 

Dennis Saffran:  Well, that’s one of the arguments that’s always made for diversity. You know, I question it. I think you get the advantage of that much better by removing discrimination and letting people of different ethnic, racial, demographic backgrounds, ideologies all congregate together, but freely, without artificial numbers. I also think, related to that––I mentioned these estimates of the Asian population could go up to 40 or 50 percent of Harvard and other Ivy League schools. And it’s been funny throughout this whole issue to hear many on the left talking about that, like, what a horrible thing.

 

      I think it was––I forget who said, a prominent liberal commentator––it might have been Chris Matthews––once said, in debating Abby Thernstrom, “Oh, will you be happy when Harvard looks like UCLA at 60 percent Asian?” This from -- the very same people who were exultant at the prospect of the United States becoming a majority-minority country fret over the far-less-disruptive prospect of Harvard or Yale becoming majority Asian.

 

      I’m not sure if that answers your question, but I’d rather have genuine diversity, as long as there’s no discrimination against blacks or Asians or whites or poor whites.

 

Micah Wallen:  All right. Unfortunately, that’s all the time we have for today, so we have to wrap this up. Dennis, did you have any closing remarks or anything you want to leave us with?

 

Dennis Saffran:  I tell you what. I’m sorry for monopolizing so much time. If anyone really wants to pursue this, please feel free to email me at djsaffran@gmail.com or tweet me at @dennisjsaffran.

 

Micah Wallen:  And, on behalf of The Federalist Society, I’d like to thank everyone for joining us today and thank Dennis for the benefit of his valuable time and expertise. Thank you all for joining us, and stay safe and healthy. 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.