Affirmative Action's Origins and Legacies
U.S. Law and Race Initiative
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10/31/2023
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4
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UNL Law Faculty Eric Berger, Danielle Jefferis, and Catherine Wilson provide an in-depth look at the policy, delving into its origins and tracing its impact up to the present day.
Dr. Jeannette Eileen Jones of UNL's U.S. Law and Race Initiative moderates the discussion and invites questions from the audience, including our students.
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- [00:00:03.460]Good afternoon, everyone.
- [00:00:05.280]Thank you for joining us today
- [00:00:06.920]for the second U.S. Law and Race Initiative webinar.
- [00:00:10.620]My name is Elodie Galeazzi
- [00:00:12.120]and I'm a PhD candidate in history
- [00:00:13.920]at the University of Nebraska-Lincoln,
- [00:00:16.620]studying Black media in the Great Plains
- [00:00:18.220]in the 20th century.
- [00:00:21.320]Launched with support in fall of 2023,
- [00:00:23.380]the U.S. Law and Race Initiative
- [00:00:24.780]explores new approaches to research,
- [00:00:26.860]teaching and public engagement
- [00:00:28.360]with the history of law, race, and racialization in the U.S.
- [00:00:33.080]Funded by the Andrew W. Mellon Foundation,
- [00:00:36.320]the initiative brings together
- [00:00:37.660]large university teaching programs,
- [00:00:40.760]immersive new forms of digital media content,
- [00:00:42.860]and community partnership storytelling
- [00:00:44.880]in order to connect Americans to their history
- [00:00:47.920]in ways that repair the fractures
- [00:00:49.920]in our national understanding of race and racialization.
- [00:00:54.080]Dr. Will Thomas,
- [00:00:55.300]Dr. Jeannette Eileen Jones and Dr. Katrina Jagodinsky
- [00:00:59.280]are the faculty leads on the U.S. Law and Race Initiative
- [00:01:02.460]along with an array of expert partners
- [00:01:05.280]in the College of Arts and Sciences
- [00:01:06.660]and the College of Law at UNL.
- [00:01:09.140]We are hosting a series of webinars
- [00:01:11.220]deepening the national conversation
- [00:01:12.620]on the legal history of race.
- [00:01:15.200]Today, we are excited to host a new discussion,
- [00:01:17.380]this time about affirmative action's origin and legacy.
- [00:01:21.100]And so we invite our panelists right now to turn on
- [00:01:23.220]their cameras if it's not already the case.
- [00:01:25.920]Today, UNL laow faculty, Eric Berger,
- [00:01:29.700]Danielle Jefferis, and Catherine Wilson
- [00:01:31.400]will provide an in-depth look at the policy,
- [00:01:33.700]delving into its origin and tracing its impact
- [00:01:36.260]up to the present day.
- [00:01:38.300]Our first panelist, Eric Berger
- [00:01:40.160]is the Earl Dunlap Distinguished Professor of Law
- [00:01:43.400]at the University of Nebraska-Lincoln.
- [00:01:46.120]His scholarship focuses on constitutional law,
- [00:01:48.260]and much of his work explores a judicial decision making
- [00:01:51.500]in constitutional cases
- [00:01:53.260]with special attention to different fact-finding,
- [00:01:56.980]rhetorical strategies, and other under-theorized factors
- [00:02:00.560]that help shape traditional opinions in constitutional cases.
- [00:02:04.400]His article, "Individual Rights, Judicial Deference,
- [00:02:07.140]and Administrative Law Norms
- [00:02:09.040]in Constitutional Decision Making"
- [00:02:10.780]was named the 2011 winner
- [00:02:13.060]of the American Constitution Society's Richard D. Cudahy
- [00:02:16.740]writing competition on regulatory and administrative law.
- [00:02:20.740]Professor Berger has testified in the Nebraska legislature
- [00:02:24.320]about a variety of constitutional issues,
- [00:02:27.300]including free speech, lethal injection,
- [00:02:29.400]and the process of amending the U.S. Constitution.
- [00:02:34.300]Our second panelist, Danielle Jefferis,
- [00:02:36.360]is Assistant Professor of Law
- [00:02:38.460]at the University of Nebraska-Lincoln.
- [00:02:40.920]Her research focuses on theories of punishment
- [00:02:43.340]and the law and policy governing prisons and detention
- [00:02:46.480]with an emphasis on the for-profit prison industry
- [00:02:50.120]and immigration-related confinement.
- [00:02:52.260]She takes both critical and comparative approaches
- [00:02:55.040]to her work, looking at carceral systems, practices,
- [00:02:58.500]and theories around the world.
- [00:03:00.600]And Professor Jefferis scholarship is informed
- [00:03:02.160]by her unique teaching and practice experience
- [00:03:04.480]which lie at the intersection of constitutional law
- [00:03:07.800]and prisoners rights, immigration law, and federal courts.
- [00:03:11.440]She has an extensive civil rights litigation experience
- [00:03:14.100]and has represented plaintiffs in federal courts
- [00:03:16.960]around the countries, including in the U.S. Supreme Court.
- [00:03:21.020]Prior to joining the Nebraska law faculty
- [00:03:23.120]Professor Jefferis taught
- [00:03:24.480]at California Western School of Law in San Diego
- [00:03:27.080]and in the Civil Rights Clinic
- [00:03:28.980]at the University of Denver College of Law.
- [00:03:32.460]Our third panelist, Catherine Wilson,
- [00:03:34.220]is Associate Professor of Law
- [00:03:36.380]at the University of Nebraska-Lincoln.
- [00:03:38.800]Her research and teaching focus on economic justice,
- [00:03:42.120]banking law, sales, payments law, security and transaction,
- [00:03:45.720]bankruptcy, and election and commerce.
- [00:03:48.580]After law school, Professor Wilson served as a law clerk
- [00:03:51.260]to the Honorable Robert S. Vance,
- [00:03:54.140]U.S. Circuit Judge for the Eleventh Circuit.
- [00:03:57.420]And prior to joining the Nebraska faculty,
- [00:03:59.180]she was a litigation associate
- [00:04:00.740]with the Atlanta law firm of Sutherland
- [00:04:03.920]Asbill & Brennan.
- [00:04:05.440]Professor Wilson also has been named Chair
- [00:04:07.760]of the Chancellor's Commission of the Status
- [00:04:09.740]of People of Color at UNL.
- [00:04:12.880]Finally, today's discussion will be moderated
- [00:04:15.060]by Dr. Jeannette Eileen Jones.
- [00:04:17.480]Dr. Jones is the Hubble Professor of History
- [00:04:19.660]and Ethnic Studies at UNL.
- [00:04:21.700]She's also the Director of the 19th Century Studies Program.
- [00:04:25.540]She's a historian of the United States
- [00:04:27.620]with expertise in American cultural
- [00:04:30.680]and intellectual history,
- [00:04:32.640]African-American history and studies,
- [00:04:35.040]pre-colonial Africa and the transnational history
- [00:04:37.440]of race and racialization.
- [00:04:39.600]Her research reflects her desire to contribute
- [00:04:42.360]to the larger critical conversation
- [00:04:44.660]taking place in this field,
- [00:04:46.480]specifically around the role of race
- [00:04:48.000]in shaping American cultural
- [00:04:49.620]and intellectual discourse and production.
- [00:04:53.100]So right now, Dr. Jones and our panelists
- [00:04:55.840]are going to be in conversation for about
- [00:04:58.700]35 minutes before we turn to your questions.
- [00:05:01.580]Please feel free at any time to submit your question
- [00:05:03.920]in using the Q&A function on Zoom.
- [00:05:07.460]And live captioning is also available to audience members.
- [00:05:10.960]Thank you, Professor Berger, Jefferis, and Wilson
- [00:05:13.000]for being here.
- [00:05:13.820]And now I'll turn things over to Dr. Jones
- [00:05:16.240]and see you all again at the end of our discussion.
- [00:05:20.020]Thank you.
- [00:05:22.160]So good afternoon.
- [00:05:24.380]So to the panelists and to the audience,
- [00:05:26.740]as you know, the topic of affirmative action
- [00:05:29.060]has re-entered the American public discourse
- [00:05:31.940]over the recent years,
- [00:05:33.900]specifically in response to movements to dismantle
- [00:05:37.040]or discredit diversity, equity and inclusion efforts
- [00:05:41.200]in all sectors of society,
- [00:05:43.660]including the military, the workplace,
- [00:05:49.020]education, sports, the arts, et cetera.
- [00:05:53.320]However, Americans seem to have focused almost exclusively
- [00:05:57.100]on affirmative action in higher education,
- [00:06:00.660]questioning the qualifications of Black, Latinx,
- [00:06:04.060]Indigenous students, and other students of color
- [00:06:06.960]for attaining post-secondary degrees.
- [00:06:10.700]Professor Wilson, can you expound on the origins
- [00:06:14.060]of affirmative action, a term that,
- [00:06:18.420]or a phrase that emerged to address
- [00:06:20.840]and redress entrenched discrimination?
- [00:06:24.760]Thank you, Dr. Jones.
- [00:06:26.220]And thank you for inviting me to be a part of this panel.
- [00:06:31.020]I wanted to take just a little bit of time as we begin,
- [00:06:34.420]just to think about the question that you just posed to us.
- [00:06:37.760]That is, it's a phrase that was emerged to address
- [00:06:41.160]and redress entrenched discrimination.
- [00:06:44.220]So the first time that phrase "affirmative action" was used
- [00:06:49.160]was back in 1961.
- [00:06:51.580]And where were we as a nation at that time?
- [00:06:54.300]We were 174 years after the signing of the U.S. Constitution
- [00:06:57.800]that provided that persons who were not free
- [00:07:00.320]would be counted three-fifths of a free person.
- [00:07:03.160]It was 98 years, almost a hundred years
- [00:07:05.140]after President Abraham Lincoln signed
- [00:07:07.040]the Emancipation Proclamation.
- [00:07:09.260]And it was amid the civil rights marches
- [00:07:11.040]to call attention to the Jim Crow laws and other measures
- [00:07:14.020]producing inequality.
- [00:07:16.320]That order in March 6th, 1961,
- [00:07:19.700]signed by President John F. Kennedy,
- [00:07:23.640]its Executive Order No. 10925,
- [00:07:26.760]required all federal regulators to take affirmative action
- [00:07:30.620]to ensure applicants are employed
- [00:07:32.960]and that their employees are treated
- [00:07:35.300]without regard to their race, creed, color,
- [00:07:39.300]or national origin.
- [00:07:41.080]The order created the Committee on Equal Employment Opportunity
- [00:07:49.000]which is a precursor to the EEOC.
- [00:07:52.840]Now, in contrast to these recent U.S. Supreme Court decisions
- [00:07:56.060]that talk about the use of race and college admissions,
- [00:07:59.680]the early history of affirmative action
- [00:08:02.340]relates largely these steps taken by the federal government
- [00:08:05.140]to require companies seeking a federal contract
- [00:08:08.120]to take affirmative action
- [00:08:10.720]to assure that they employ minorities.
- [00:08:14.480]President Kennedy was assassinated in 1963,
- [00:08:18.440]so Johnson became president,
- [00:08:19.760]and almost immediately we passed the Civil Rights Act of 1964
- [00:08:24.160]which prohibited employment discrimination
- [00:08:26.740]by all companies with more than 15 employees.
- [00:08:29.820]And it removed any sort of obstacle,
- [00:08:34.540]any sort of modifier that was all employers
- [00:08:39.860]whether or not they had a government contract.
- [00:08:43.580]That act also created our EEOC.
- [00:08:46.580]So Johnson, now president, took a couple of steps
- [00:08:49.320]in the next year, 1965.
- [00:08:52.740]One was the speech that he delivered to Harvard
- [00:08:55.780]in June of '65
- [00:08:57.720]where he reasoned that the civil rights laws
- [00:09:00.080]were not gonna be sufficient to
- [00:09:01.800]remedy discrimination.
- [00:09:04.380]And if you don't mind,
- [00:09:04.940]I'm gonna read a tiny bit of that commencement speech.
- [00:09:09.920]"You do not wipe away scars of centuries
- [00:09:11.920]by saying now you are free to go where you want,
- [00:09:14.460]to do as you please, and choose the leaders you please.
- [00:09:17.520]You do not take a man who for years
- [00:09:19.080]has been hobbled by chains, liberate him,
- [00:09:21.960]bring him to the starting line of race,
- [00:09:23.600]saying you are free to compete with all the others
- [00:09:26.200]and justly believe you have been completely fair.
- [00:09:29.760]This is the next and more profound stage
- [00:09:31.820]of the battle for civil rights.
- [00:09:33.580]We need not just freedom, but opportunity,
- [00:09:36.400]not just legal equity, but human ability,
- [00:09:40.440]not just equality as a right and a theory,
- [00:09:43.040]but equality as a fact and as a result."
- [00:09:46.260]Shortly thereafter, about three months later,
- [00:09:48.180]he issued Executive Order 11246,
- [00:09:51.700]which was implementing that Civil Rights Act
- [00:09:55.380]by prohibiting all federal contractors
- [00:09:58.160]and subcontractors from discriminatory practices
- [00:10:02.360]in hiring, firing, training,
- [00:10:05.060]and the recruitment of employees.
- [00:10:07.580]It required that all government contractors
- [00:10:10.180]and subcontractors take affirmative action
- [00:10:13.080]to expand job opportunities for minorities.
- [00:10:16.880]And it established this office,
- [00:10:19.140]the Office of Federal Contract Compliance,
- [00:10:20.960]in the Department of Labor to enforce the order.
- [00:10:24.640]He would later amend that order
- [00:10:27.420]to include affirmative action for women.
- [00:10:32.060]So during Johnson's administration,
- [00:10:34.120]he started to implement this order.
- [00:10:36.860]There was a federal affirmative action program
- [00:10:40.160]that started where they were trying
- [00:10:43.740]to integrate the building construction trades.
- [00:10:47.220]The initial plan was deemed to be illegal.
- [00:10:51.040]And at that point, we were just at the end
- [00:10:53.500]of his administration, and he decided not to run
- [00:10:57.440]for election in March of 1968.
- [00:11:01.560]And so we then changed administrations to Nixon.
- [00:11:06.240]Now Nixon did quite a bit.
- [00:11:09.020]He took several steps that are important
- [00:11:11.060]in this history of affirmative action.
- [00:11:14.640]In 1970, he ordered Order No. 4.
- [00:11:18.840]That was by his Department of Labor,
- [00:11:22.320]which authorized the use of flexible goals
- [00:11:25.900]and timetables to remedy under-utilization
- [00:11:29.360]of minorities by federal contractors.
- [00:11:32.340]Again, they added women a year later in 1971.
- [00:11:37.400]In 1971, there was an executive order by Nixon,
- [00:11:41.240]Executive Order 1165, that directed federal agencies
- [00:11:45.060]to develop a comprehensive plan or program
- [00:11:48.200]for a minority business enterprise contracting program.
- [00:11:52.280]Again, a couple of years later passed
- [00:11:55.480]and Nixon's administration is issued a memorandum
- [00:11:58.960]that was designed to distinguish between goals and quotas.
- [00:12:04.920]He used the word affirmative action finally in 1973
- [00:12:10.020]in some legislation, the Rehabilitation Act of 1973
- [00:12:14.260]to require federal agencies to submit a plan to the EEOC
- [00:12:18.660]for the hiring, placement, and advancement
- [00:12:21.600]of individuals with disabilities.
- [00:12:24.700]Now these steps by Nixon must be taken in context.
- [00:12:27.900]As I said, Johnson had kind of started something
- [00:12:30.260]but then didn't pursue it.
- [00:12:33.240]But Nixon, in June of '69, revised that plan.
- [00:12:37.780]They called it the Revised Philadelphia Plan
- [00:12:40.040]where he was setting minimum numbers or floors
- [00:12:43.640]that employers should reach,
- [00:12:47.460]try to reach in good faith when hiring.
- [00:12:52.220]When he described this revised plan, Nixon said,
- [00:12:55.600]"We would not impose quotas
- [00:12:56.960]but would require federal contractors
- [00:12:59.300]to show affirmative action to meet the goals
- [00:13:02.300]of increasing minority employees."
- [00:13:05.680]So I've given you a bit of insight
- [00:13:07.660]on about a 10 to 12 year period from 1961
- [00:13:10.800]to the early years of the Nixon term
- [00:13:13.380]and the U.S. Supreme Court's first decision
- [00:13:15.980]on affirmative action in Bakke.
- [00:13:18.460]I could continue on?
- [00:13:20.460]I wanna just take a minute to hit on two other points:
- [00:13:24.040]President Jimmy Carter and President Ronald Reagan.
- [00:13:27.260]Shortly after Bakke was decided,
- [00:13:29.100]and I know others are going to get to that Bakke decision,
- [00:13:32.160]but after it was decided,
- [00:13:34.280]President Carter issued a memorandum
- [00:13:36.040]saying that that decision provided
- [00:13:38.420]that properly tailored affirmative action programs
- [00:13:41.780]that provided minorities with increased access
- [00:13:45.320]to federal programs and jobs
- [00:13:47.640]are consistent with the Civil Rights Act of 1964
- [00:13:51.060]and the Constitution.
- [00:13:53.500]Both President Jimmy Carter
- [00:13:55.840]and President Ronald Reagan issued executive orders
- [00:13:59.420]that again were dealing with providing opportunities,
- [00:14:04.320]in Jimmy Carter's case for women,
- [00:14:07.000]that was the National Women's Business Enterprise Policy
- [00:14:10.120]that required federal agencies to take affirmative action
- [00:14:13.240]to support women's businesses.
- [00:14:15.740]And then Ronald Reagan with Executive Order 12432
- [00:14:19.160]directed certain agencies,
- [00:14:21.500]those that were making substantial procurements
- [00:14:24.440]or grant-making authorities
- [00:14:26.260]to develop a minority business enterprise development plan
- [00:14:31.860]where they were trying to assist minority businesses
- [00:14:34.620]to procure contracts.
- [00:14:36.940]Now I've referenced executive orders, speeches, memorandum,
- [00:14:40.920]not court decisions in my remarks.
- [00:14:45.960]One scholar has observed that during this time
- [00:14:48.640]we saw both Democratic and Republican administrations
- [00:14:51.680]seeking to use race-conscious and gender-conscious tools
- [00:14:55.800]to end entrenched discrimination.
- [00:15:00.810]So I'm gonna turn it over back to you at this point.
- [00:15:04.670]Again, I just find it interesting
- [00:15:06.250]that both political sides–
- [00:15:08.850]Exactly.
- [00:15:10.130]–were taking these steps.
- [00:15:12.490]Absolutely, thank you so much, Professor Wilson
- [00:15:14.650]for that detailed summary.
- [00:15:17.590]Again, emphasizing that this is something
- [00:15:19.810]that was taken up on both sides of our political spectrum.
- [00:15:24.370]So as you alluded to,
- [00:15:25.590]there were some important cases outside of the Bakke.
- [00:15:29.130]So Professor Jefferis,
- [00:15:30.910]the first federal district court cases
- [00:15:32.770]regarding affirmative action
- [00:15:34.330]dealt with contracting and hiring practices.
- [00:15:37.850]And so can you speak about one or two of those cases
- [00:15:40.410]to follow up on what Dr. Wilson laid out for us?
- [00:15:43.870]Thank you.
- [00:15:45.230]Sure, and thank you so much, Dr. Jones,
- [00:15:46.810]for organizing this and having me here.
- [00:15:49.750]And yeah, I wanna pull in the judiciary's role here
- [00:15:52.790]and use that to fill out what Professor Wilson spoke about
- [00:15:56.130]in terms of the executive side and the legislative side
- [00:15:59.210]with the passage of the Civil Rights Act of 1964.
- [00:16:02.990]And all of this, of course, comes about a century
- [00:16:06.230]after the ratification of the 14th Amendment,
- [00:16:08.870]which promised equal protection to all.
- [00:16:12.190]And so in thinking about the judiciary's role,
- [00:16:14.310]I wanna talk about Alabama and its state troopers,
- [00:16:17.830]because I think the litigation around that executive agency,
- [00:16:21.470]that state level agency is emblematic
- [00:16:23.650]of the way that courts were viewing
- [00:16:25.910]and in many ways aligning
- [00:16:28.250]with what Professor Wilson spoke about on the executive side.
- [00:16:31.770]So as a bit of context,
- [00:16:34.010]the Alabama State Police Force is the state police force
- [00:16:37.210]that stood behind Governor George Wallace in 1963
- [00:16:40.910]to block Vivian Malone and James Hood
- [00:16:43.670]from entering the University of Alabama
- [00:16:45.390]after a federal court had ordered the university
- [00:16:48.230]to allow their admission.
- [00:16:50.330]The Alabama State Police Force
- [00:16:51.570]is also the same state police force
- [00:16:53.550]that deployed tear gas and used clubs
- [00:16:55.890]on civil rights marchers in Selma in 1965.
- [00:17:00.430]So it might not come as quite a surprise
- [00:17:03.050]that by the early 1970s still,
- [00:17:05.290]the state troopers was still an all white institution.
- [00:17:09.290]And for several years, Black men at the time
- [00:17:11.690]had sought positions as police officers within the agency
- [00:17:15.470]and they had been refused.
- [00:17:17.590]So the NAACP sued on behalf of its members,
- [00:17:21.850]alleging a pattern and practice of discrimination
- [00:17:24.390]against Black Alabamans in the state's refusal
- [00:17:27.410]to hire them as state troopers.
- [00:17:30.030]If true, because this is a public agency,
- [00:17:32.930]a government agency,
- [00:17:33.810]this would have constituted a violation
- [00:17:35.630]of the 14th Amendment.
- [00:17:38.290]The district court, the federal district court in Alabama
- [00:17:40.570]took a look at the case and very clearly
- [00:17:43.570]and directly unambiguously said,
- [00:17:47.210]"plaintiffs have shown without contradiction" –
- [00:17:50.150]In other words, the state had no evidence to rebut this–
- [00:17:52.890]"that the state has engaged in a blatant
- [00:17:55.230]and continuous pattern and practice
- [00:17:57.190]of discrimination and hiring."
- [00:17:59.190]And the court recognized in the 37 year history
- [00:18:01.830]of the patrol, there had never been a Black trooper.
- [00:18:05.350]The only Black Alabamans who had ever been employed
- [00:18:07.570]by the department had been in non-merit labor positions.
- [00:18:11.990]And the court went on to say, "this unexplained
- [00:18:14.090]and unexplainable discriminatory conduct
- [00:18:17.350]by state officials is unquestionably
- [00:18:19.790]a violation of the 14th Amendment."
- [00:18:22.690]So the next step for the court then,
- [00:18:24.470]in light of that clear demonstration of discrimination
- [00:18:27.590]was what do we do about it?
- [00:18:29.270]How do we remedy this?
- [00:18:30.590]And the court recognized that it had the authority
- [00:18:34.010]and the duty both to end discrimination at that moment,
- [00:18:38.530]to stop it from happening further,
- [00:18:40.930]but also to correct the past effects of discrimination
- [00:18:44.530]or the present effects of the past discrimination.
- [00:18:47.790]And so to fulfill both of those duties,
- [00:18:50.170]the court did a couple of things.
- [00:18:52.150]It enjoined, it stopped, it ordered the end
- [00:18:56.070]of all further discrimination,
- [00:18:58.150]and it ordered the affirmative steps
- [00:19:01.010]that the department had to hire one Black trooper
- [00:19:04.250]for every white trooper.
- [00:19:06.730]This one-for-one hiring scheme
- [00:19:08.530]until at least 25% of the police force
- [00:19:11.330]was comprised of Black troopers.
- [00:19:13.950]So pretty clear remedy there.
- [00:19:15.950]You have to affirmatively do this
- [00:19:17.950]to remedy these harms of past discrimination.
- [00:19:22.650]The court clarified in a later proceeding,
- [00:19:25.350]because this litigation went on for well over a decade,
- [00:19:28.590]clarified in a later proceeding
- [00:19:30.690]that that 25% hiring threshold applied
- [00:19:34.590]not just to entry-level officers.
- [00:19:37.170]So you weren't done, Alabama, once 25%
- [00:19:40.970]of your entry-level officers were Black,
- [00:19:43.290]but it applied to the entire force.
- [00:19:45.870]So all levels of the department.
- [00:19:49.130]As you might imagine, and as the court recognized,
- [00:19:51.430]when you have a decades long history of discrimination
- [00:19:54.250]as blatant as that of the Alabama State Police Force,
- [00:19:58.410]hiring entry-level officers
- [00:19:59.950]doesn't impact those more senior ranks.
- [00:20:03.370]And so several years later, as late as 1978,
- [00:20:08.110]there were 232 state troopers
- [00:20:10.290]at the rank of corporal or above,
- [00:20:13.470]still not a single Black officer at those higher levels.
- [00:20:17.370]So the parties went back to court.
- [00:20:19.550]The court again unambiguously said,
- [00:20:21.610]look, you can't just focus on entry-level positions.
- [00:20:25.670]To do so, the court explicitly said,
- [00:20:28.010]would be to ignore the past discrimination
- [00:20:30.350]that was pervasive.
- [00:20:32.250]Its effects persist and they are manifest.
- [00:20:35.990]So several years later, again,
- [00:20:37.470]now we're entering the early '80s,
- [00:20:39.690]the district court is still heavily involved
- [00:20:41.730]in monitoring its remedial order
- [00:20:43.870]and monitoring the state's compliance with it.
- [00:20:47.930]And with respect to this promotion issue,
- [00:20:49.950]the court observed that the state
- [00:20:51.790]still wasn't in compliance with its order.
- [00:20:55.030]And the opinion goes, "12 years had passed
- [00:20:58.210]since this court condemned
- [00:20:59.610]the racially discriminatory policies.
- [00:21:02.070]The effects remain pervasive and conspicuous at all ranks."
- [00:21:06.870]And the opinion continues,
- [00:21:08.110]"This is intolerable and it must not continue.
- [00:21:11.050]The time has now arrived again for the department
- [00:21:13.590]to take affirmative and substantial steps
- [00:21:16.630]to open the upper ranks to Black state troopers."
- [00:21:19.950]And so this time the court said,
- [00:21:21.610]look, for a period of time,
- [00:21:23.570]our first order didn't work.
- [00:21:25.650]We didn't get the point across clearly.
- [00:21:27.410]So now we're going to order the state
- [00:21:29.450]that for a period of time,
- [00:21:31.570]at least half of all troopers who you promote
- [00:21:34.870]to corporal or above have to be Black troopers,
- [00:21:36.695]so long as there are qualified Black troopers to promote.
- [00:21:41.890]So another one-for-one promotion scheme.
- [00:21:45.310]So if you're going to promote a white trooper,
- [00:21:46.990]you have to also promote a qualified Black trooper.
- [00:21:50.570]This case made it up to the Supreme Court,
- [00:21:52.370]and the Supreme Court affirmed
- [00:21:53.650]what the lower court had said.
- [00:21:55.510]It was a plurality opinion.
- [00:21:57.130]So there was a bit of a fractured decision,
- [00:21:59.910]but the justices affirmed the lower court's orders
- [00:22:05.490]and specifically affirmed
- [00:22:07.030]this one-for-one promotion requirement.
- [00:22:10.470]So we get some more pretty clear language
- [00:22:13.470]from the Supreme Court on this.
- [00:22:15.090]Justice Brennan says, the government unquestionably
- [00:22:18.090]has a compelling interest
- [00:22:19.410]to remedy past and present discrimination.
- [00:22:23.230]And here the way that the lower court had done so,
- [00:22:26.750]the way that had fashioned its remedies,
- [00:22:28.930]they had amply shown that to be sufficiently tailored
- [00:22:31.690]to serve that purpose.
- [00:22:33.790]And in affirming what the lower court had done,
- [00:22:36.990]the justices said, look, there's claims out here,
- [00:22:41.050]white candidates for promotion, for example,
- [00:22:42.790]are making claims that this one-for-one hiring scheme
- [00:22:45.970]or promotion scheme harms them.
- [00:22:49.150]And the court rejected those claims.
- [00:22:50.770]At least four justices rejected those claims saying,
- [00:22:53.330]look, this is a temporary measure.
- [00:22:55.770]It's a limited measure that is designed, again,
- [00:22:58.510]to remedy that past discrimination,
- [00:23:00.950]remedy the effects of past discrimination.
- [00:23:02.930]And it only postpones their promotions
- [00:23:05.090]of qualified white people
- [00:23:06.390]if they are in fact awaiting such promotions.
- [00:23:09.510]And so a pretty clear endorsement
- [00:23:11.870]from the Supreme Court there
- [00:23:13.150]and what the lower court in Alabama had done
- [00:23:15.550]to affirmatively end those effects of past discrimination
- [00:23:20.430]in line with what the executive branch,
- [00:23:22.810]as Professor Wilson said,
- [00:23:23.890]was emphasizing and articulating at the time.
- [00:23:27.510]And I think that this case
- [00:23:28.490]and the kind of the trajectory of its litigation
- [00:23:30.550]is emblematic of the federal government's commitment
- [00:23:33.990]to these efforts at the time,
- [00:23:35.910]and perhaps foreshadows what I think Professor Berger
- [00:23:39.490]is gonna speak about when Bakke comes along.
- [00:23:44.760]Thank you so much for that, Professor Jefferis.
- [00:23:48.080]And creating that through line
- [00:23:50.720]from what Professor Wilson was talking about,
- [00:23:53.060]again, how it involved not just the executive branch,
- [00:23:58.720]but eventually, of course, the legislative branch
- [00:24:00.960]of various levels all the way up to the Supreme Court.
- [00:24:03.940]And as you noted, then came Bakke.
- [00:24:07.480]And so Professor Berger,
- [00:24:09.520]can you discuss this case and the SCOTUS decision,
- [00:24:13.780]inform our attendees on what basis did the Supreme Court
- [00:24:19.320]find in favor of Bakke in an 8-1 decision,
- [00:24:23.140]and what central question or questions
- [00:24:25.640]informed the decision?
- [00:24:27.820]Thanks very much, Dr. Jones, for organizing this event.
- [00:24:33.640]So the Bakke case involved the University of California-Davis
- [00:24:39.340]Medical School's Admissions Program,
- [00:24:42.040]which in the mid 1970s set aside 16 slots
- [00:24:47.080]out of a class of 100 for minority students.
- [00:24:51.440]So this seemed very much like a quota.
- [00:24:53.840]Case made it all the way up to the U.S. Supreme Court.
- [00:24:56.020]And like the Alabama decision Professor Jefferis
- [00:24:59.160]was just talking about,
- [00:25:00.580]the court was very fractured in the Bakke case.
- [00:25:03.400]So as in the Alabama case, there was no majority opinion.
- [00:25:06.840]Four of the justices in Bakke
- [00:25:09.360]would have applied intermediate scrutiny
- [00:25:11.840]for racial classifications benefiting minorities.
- [00:25:15.320]And under that standard,
- [00:25:16.380]they would have upheld Davis' Medical School's
- [00:25:18.960]Affirmative Action Program.
- [00:25:21.420]Four other justices concluded that affirmative action
- [00:25:25.440]violated Title VI of the Civil Rights Act of 1964,
- [00:25:29.360]which prohibits discrimination by institutions
- [00:25:32.420]receiving federal funds.
- [00:25:33.840]And those four justices
- [00:25:35.500]wouldn't even have reached the Constitutional question.
- [00:25:39.000]So that left just one justice, Justice Powell,
- [00:25:42.220]who announced the judgment of the court
- [00:25:44.320]writing just for himself.
- [00:25:46.000]So one of the peculiar things about Bakke
- [00:25:48.520]is that it's Justice Powell's opinion
- [00:25:51.340]that really set the groundwork
- [00:25:53.840]for how both the Supreme Court and all the lower courts
- [00:25:57.100]would think about affirmative action
- [00:25:58.620]for nearly half a century.
- [00:26:00.680]But his opinion was written just for himself in that case.
- [00:26:06.640]So Powell's decision makes clear
- [00:26:09.040]that strict scrutiny applies
- [00:26:11.420]for all racial classifications, including
- [00:26:14.480]affirmative action.
- [00:26:15.480]In other words, including programs designed
- [00:26:17.420]to benefit racial minorities who have been subjected
- [00:26:20.720]to horrendous discrimination through the years.
- [00:26:25.380]So in other words,
- [00:26:26.040]whereas four justices would have applied
- [00:26:29.380]intermediate scrutiny to policies
- [00:26:31.180]that benefit racial minorities,
- [00:26:33.860]Justice Powell said the court should apply strict scrutiny.
- [00:26:37.840]And without getting too into the doctrinal weeds,
- [00:26:41.340]strict scrutiny is more searching
- [00:26:43.360]at sort of a harsher level of review
- [00:26:46.240]than intermediate scrutiny.
- [00:26:47.940]Under strict scrutiny, the court needs to find
- [00:26:51.040]that the government has a compelling governmental interest
- [00:26:54.080]to do what it's doing.
- [00:26:56.080]And the challenge policy needs to be necessary
- [00:26:59.080]to achieve that interest.
- [00:27:01.940]So in other words,
- [00:27:02.660]strict scrutiny is very hard for the government to win.
- [00:27:05.260]It's not impossible for the government to win,
- [00:27:07.520]but usually the government's gonna lose
- [00:27:09.520]when the court applies a strict scrutiny.
- [00:27:13.360]Anyway, applying that strict scrutiny test in Bakke,
- [00:27:18.180]Justice Powell concluded
- [00:27:19.620]that the medical school's admissions program
- [00:27:22.160]was unconstitutional.
- [00:27:25.240]Primarily because it set aside a certain number of seats
- [00:27:28.340]for minority students.
- [00:27:30.740]So Powell said this is effectively a quota,
- [00:27:33.160]and that's not acceptable under the Constitution.
- [00:27:36.820]However, Powell also wrote that it was permissible
- [00:27:40.040]for race to be used as one factor in admissions decisions
- [00:27:44.480]to enhance a university's diversity.
- [00:27:47.360]And he cited favorably an admissions plan used at the time
- [00:27:50.780]by Harvard University as a model of an approach
- [00:27:54.060]that probably would be constitutional.
- [00:27:56.980]So I think three major takeaways
- [00:27:59.600]from Justice Powell's opinion in Bakke.
- [00:28:02.820]One, the court since Bakke has followed
- [00:28:08.040]Justice Powell's strict scrutiny approach.
- [00:28:10.980]I think there are some commentators who argue
- [00:28:13.160]that until the recent decision this year,
- [00:28:15.920]the court maybe applied sort of strict scrutiny light,
- [00:28:18.960]that it applied a sort of watered down version
- [00:28:21.400]of strict scrutiny.
- [00:28:23.060]But for the most part, the court has followed
- [00:28:24.980]Justice Powell's articulation and strict scrutiny
- [00:28:27.380]as the test that applies for any racial classification,
- [00:28:32.160]even those designed to try to benefit racial minority groups
- [00:28:36.320]that have been subjected to discrimination in the past.
- [00:28:39.780]Second, the court until this year
- [00:28:42.040]has followed Justice Powell's finding
- [00:28:44.600]that diversity is a compelling governmental interest
- [00:28:47.680]that at least in theory can justify
- [00:28:50.320]affirmative action programs.
- [00:28:52.700]And third, because Justice Powell
- [00:28:54.520]cited the Harvard plan approvingly,
- [00:28:57.280]in the years and decades after Bakke,
- [00:29:00.040]lots of universities designed their affirmative action
- [00:29:02.560]program with sort of an eye to what Harvard had been doing.
- [00:29:06.900]In other words, under the Powell approach,
- [00:29:09.260]affirmative action programs
- [00:29:10.600]are not automatically constitutional.
- [00:29:12.720]In fact, the Davis Medical School Program
- [00:29:15.400]was unconstitutional.
- [00:29:16.880]But if a school designs its affirmative action program,
- [00:29:20.340]its admissions policy carefully enough,
- [00:29:22.820]it can pass constitutional muster.
- [00:29:27.830]Thank you for that.
- [00:29:28.870]And as you were talking, you said again,
- [00:29:31.310]that you were alluding to the present decision.
- [00:29:34.250]So maybe take us home to 2023, so to speak.
- [00:29:37.890]So how do we go from Bakke to Grutter, Gratz, and to Fisher,
- [00:29:43.090]and then to the recent Harvard,
- [00:29:44.630]so those were before that, but to the recent 2023
- [00:29:47.430]Harvard and University of North Carolina decisions?
- [00:29:50.890]And if you have time, can you touch on Justice Ketanji Brown
- [00:29:54.650]Jackson's dissent in the UNC decision,
- [00:29:57.910]She recused herself on the Harvard,
- [00:30:00.130]especially her reading of the original purpose
- [00:30:02.570]of the 14th Amendment?
- [00:30:05.110]Sure, sure, those are great questions.
- [00:30:06.890]Thank you.
- [00:30:08.590]So as Dr. Jones just alluded to,
- [00:30:11.010]Bakke was the court's most important word
- [00:30:12.790]on affirmative action in the university context
- [00:30:15.050]for a long time.
- [00:30:16.310]But a quarter of a century later in 2003,
- [00:30:20.490]two cases arose coming out of the University of Michigan.
- [00:30:25.150]Grutter was a challenge to the University of Michigan's
- [00:30:27.590]law school admissions process.
- [00:30:29.990]Gratz was a challenge to the University of Michigan's
- [00:30:32.050]undergraduate admissions process.
- [00:30:34.190]And the two cases came out opposite ways.
- [00:30:36.270]One of the programs was upheld, one of them was struck down.
- [00:30:39.370]So the details of how the admissions programs
- [00:30:43.010]are designed really mattered to the court.
- [00:30:47.390]The law school admissions program at issue in Grutter,
- [00:30:51.170]the one that was upheld,
- [00:30:52.830]looked at the entire file of the applicant
- [00:30:55.870]and considered diversity,
- [00:30:57.450]but really used race as a plus factor.
- [00:31:00.750]In other words, race wasn't a defining characteristic
- [00:31:03.050]of the applicant.
- [00:31:05.010]And the court concluded that using race as a plus factor
- [00:31:08.530]is okay so long as the law school is engaging
- [00:31:12.410]in an individualized consideration
- [00:31:14.530]of each and every application.
- [00:31:17.090]By contrast, the college admissions program
- [00:31:19.890]at issue in the Gratz case,
- [00:31:21.950]that was sort of a more mechanical admissions program.
- [00:31:25.530]That was a point system,
- [00:31:27.790]members of certain racial minority groups received 20 points,
- [00:31:31.770]you needed a hundred points to get in,
- [00:31:34.090]and the court struck this down.
- [00:31:37.170]And its reasoning seemed to be A),
- [00:31:40.110]that this point system isn't individualized enough.
- [00:31:45.270]In other words, it seemed too mechanical.
- [00:31:47.930]And B), a fifth of the points relied on race.
- [00:31:53.850]So in other words, you could get 20% of the points
- [00:31:55.790]you needed to get in just on your race alone.
- [00:31:59.150]And the Supreme Court seemed to say
- [00:32:00.950]that's relying too heavily on race.
- [00:32:05.470]So Grutter and Gratz basically reiterated Bakke,
- [00:32:08.810]affirmative action programs can be constitutional,
- [00:32:12.210]but they need to be carefully designed.
- [00:32:15.610]And there were two Fisher cases
- [00:32:17.150]coming out of the University of Texas in the mid 2010s.
- [00:32:20.930]And they might have ratcheted up
- [00:32:23.850]the level of strict scrutiny a little bit,
- [00:32:25.770]but the outcome in those cases,
- [00:32:28.270]the analysis was pretty similar to Grutter and Gratz.
- [00:32:31.690]I think I'm gonna skip ahead if it's okay
- [00:32:33.350]to the current decision just for lack of time.
- [00:32:36.830]So the decision Dr. Jones mentioned
- [00:32:39.610]that the Supreme Court decided this year
- [00:32:42.090]is called Students for Fair Admissions
- [00:32:44.370]v. Presidents and Fellows of Harvard College.
- [00:32:48.010]And this decision basically overturned
- [00:32:50.670]all those earlier decisions
- [00:32:52.050]and made it virtually impossible for universities
- [00:32:55.070]to engage in affirmative action.
- [00:32:57.690]I say basically overturned,
- [00:32:59.270]because the court didn't claim
- [00:33:01.130]to be overturning the earlier decisions.
- [00:33:03.210]But I think most commentators, myself certainly included,
- [00:33:07.130]believe that the court for all intents and purposes
- [00:33:09.950]overruled Grutter and those earlier decisions.
- [00:33:14.610]This case from this year involved challenges,
- [00:33:17.450]as Dr. Jones said, to Harvard's
- [00:33:20.790]and the University of North Carolina's
- [00:33:22.130]as affirmative action programs.
- [00:33:24.650]You may be thinking,
- [00:33:25.630]well, UNC is obviously a public university,
- [00:33:28.830]so that case was about
- [00:33:30.030]whether the equal protection clause permits
- [00:33:32.750]public universities from having affirmative action programs.
- [00:33:36.470]Harvard's a private university,
- [00:33:38.590]so the constitution doesn't directly apply to it.
- [00:33:41.550]But Title VI of the Civil Rights Act of 1964
- [00:33:44.950]prohibits recipients of federal funds
- [00:33:48.090]from discriminating on the basis of race.
- [00:33:50.690]And the court has held that the Title VI standard
- [00:33:53.430]is the same as the equal protection clause standard.
- [00:33:56.590]So in other words, under court precedent,
- [00:33:58.650]once the court holds that affirmative action
- [00:34:01.010]is not allowed under the equal protection clause,
- [00:34:04.770]then via Title VI,
- [00:34:05.890]it also would prohibit affirmative action
- [00:34:08.090]for private institutions as well.
- [00:34:11.090]So the court in this most recent case began by
- [00:34:14.470]arguing that under Brown v. Board of Education,
- [00:34:19.330]the constitution requires colorblindness.
- [00:34:22.070]That's obviously a controversial interpretation
- [00:34:24.730]of both the 14th Amendment and Brown,
- [00:34:27.370]but that was what the court said.
- [00:34:29.010]And then with that background in mind,
- [00:34:31.650]the court went on and said that Harvard and the UNC's
- [00:34:35.690]admissions policies failed strict scrutiny.
- [00:34:39.050]So whereas the earlier decisions like Bakke and Grotter
- [00:34:42.390]had agreed that diversity
- [00:34:44.310]was a compelling governmental interest,
- [00:34:46.830]the court now said that diversity cannot be subjected
- [00:34:50.850]to meaningful judicial review.
- [00:34:53.470]So in other words, in those cases,
- [00:34:55.430]the universities had said that diversity
- [00:34:57.570]was important to its educational mission
- [00:34:59.790]for all kinds of reasons.
- [00:35:02.070]Diversity helps train future leaders.
- [00:35:04.110]It helps prepare graduates to adapt
- [00:35:06.070]to an increasingly pluralist society.
- [00:35:08.470]It produces knowledge from diverse outlooks.
- [00:35:11.850]And the court responded, here I'm quoting,
- [00:35:15.390]writing for the court, Chief Justice Roberts wrote,
- [00:35:18.490]"although these are commendable goals,
- [00:35:20.430]they are not sufficiently coherent
- [00:35:22.130]for purposes of strict scrutiny."
- [00:35:24.590]And what Roberts went on to emphasize was that
- [00:35:27.570]he didn't know how courts could measure those goals
- [00:35:31.030]and determine if those goals had been reached.
- [00:35:34.790]So whereas earlier cases had said that yes,
- [00:35:37.230]diversity is a compelling interest,
- [00:35:39.290]this recent case seemed to say that because it's difficult
- [00:35:42.250]to measure the benefits of diversity,
- [00:35:45.350]and it's hard to know when you've achieved enough diversity
- [00:35:49.130]to satisfy the purported educational benefits of diversity,
- [00:35:53.430]it's not a coherent enough interest to qualify
- [00:35:56.470]as a compelling interest to strict scrutiny.
- [00:35:59.250]So notice that that marks a major break
- [00:36:02.590]from how the earlier decisions had thought about diversity
- [00:36:06.150]as a compelling governmental interest.
- [00:36:08.790]On the other prong of strict scrutiny,
- [00:36:10.970]what's sometimes called the narrow tailoring prong,
- [00:36:13.510]the court also said that the admissions programs at issue
- [00:36:16.950]did not articulate a meaningful enough connection
- [00:36:19.990]between their approach and their goals.
- [00:36:22.610]So one of the things that pointed out was that
- [00:36:24.710]the racial categories the programs drew
- [00:36:27.590]seem to be imprecise and arbitrary.
- [00:36:30.610]So for example, I believe both Harvard and UNC
- [00:36:33.790]had one category listed as Asian,
- [00:36:36.610]which as the court pointed out would encompass both,
- [00:36:40.350]for instance, South Asians and East Asians.
- [00:36:43.390]And the court's point was why treat those groups the same
- [00:36:46.570]given that they're culturally, ethnically,
- [00:36:49.990]religiously, linguistically, and so on very different.
- [00:36:53.850]Another point the majority made was that
- [00:36:57.290]universities may not operate their admissions programs
- [00:37:00.810]on the belief that minority students always
- [00:37:03.930]or even consistently express
- [00:37:06.230]some characteristic minority viewpoint.
- [00:37:09.930]So in other words, the court seemed concerned
- [00:37:13.410]that the universities were using race
- [00:37:15.890]as a criteria in admissions on the theory
- [00:37:19.370]that members of particular races
- [00:37:21.010]bring particular viewpoints to the table.
- [00:37:24.170]And the court thought that that was the universities
- [00:37:26.310]engaging in unconstitutional stereotyping.
- [00:37:31.270]So the court essentially said universities
- [00:37:33.890]cannot use race as a criteria in admissions,
- [00:37:36.870]but towards the very end of his opinion,
- [00:37:38.710]the chief justice added, and here I'm quoting again,
- [00:37:42.750]"nothing in this opinion should be construed
- [00:37:44.810]as prohibiting universities from considering
- [00:37:48.090]an applicant's discussion of how race affected
- [00:37:50.850]his or her life, be it through discrimination,
- [00:37:53.610]inspiration, or otherwise."
- [00:37:55.970]So in other words, the chief justice I think was saying,
- [00:37:59.190]universities cannot take race into account
- [00:38:01.730]just because an applicant checks a particular racial box,
- [00:38:05.170]but it might, they can take it into account
- [00:38:08.830]student essays that might discuss
- [00:38:10.770]how their race has affected their lives.
- [00:38:14.190]So obviously a big practical question moving forward
- [00:38:16.890]is how universities might do this
- [00:38:18.790]and what additional litigation might ensue.
- [00:38:21.630]And if you want, maybe we could talk about it
- [00:38:23.170]during the question and answer.
- [00:38:24.950]Dr. Jones mentioned the dissents.
- [00:38:29.030]I'll just summarize quickly, Justice Sotomayor's dissent
- [00:38:32.870]and Justice Jackson's dissent.
- [00:38:35.050]Justice Sotomayor's dissent was very historically focused
- [00:38:39.810]and made the argument that the 14th Amendment
- [00:38:43.370]is not colorblind.
- [00:38:44.590]So she basically marshaled a lot of historical research
- [00:38:48.110]to reject the position that the chief justice had taken
- [00:38:52.910]in his majority opinion
- [00:38:54.130]and also that Justice Thomas took in his concurrence.
- [00:38:58.470]Sotomayor pointed out, Justice Sotomayor pointed out
- [00:39:00.990]that the same Congress that proposed the 14th Amendment
- [00:39:03.470]also passed legislation including the Freedmen's Bureau Bill
- [00:39:07.490]which provided special benefits to African-Americans
- [00:39:11.070]including in the area of education.
- [00:39:14.830]She pointed out that the Reconstruction Congresses
- [00:39:16.950]also appropriated money in various legislative schemes
- [00:39:21.270]for the purpose of benefiting racial minorities.
- [00:39:24.410]So in other words, her basic argument was that the idea
- [00:39:26.970]that the 14th Amendment requires
- [00:39:28.670]governmental colorblindness
- [00:39:30.330]is just contrary to the original meaning and practice
- [00:39:33.230]under the 14th Amendment.
- [00:39:35.330]To the contrary, she argued, the 14th Amendment
- [00:39:38.290]properly understood, was really more
- [00:39:40.230]of an anti-subordination provision.
- [00:39:42.890]It prohibited government from creating a racial caste system
- [00:39:46.070]but that's different from saying
- [00:39:47.630]it's colorblind altogether.
- [00:39:50.970]Justice Jackson's dissent sort of built
- [00:39:53.650]on Sotomayor's arguments and Justice Jackson argued
- [00:39:57.150]that our country has never been colorblind,
- [00:39:59.950]and she cataloged very powerfully some of the many ways
- [00:40:03.850]in which racial minorities in this country
- [00:40:07.270]have experienced profound
- [00:40:08.710]and longstanding state-sponsored discrimination.
- [00:40:13.050]So she rehearsed the history of slavery and vagrancy laws,
- [00:40:17.630]Jim Crow, segregation, housing discrimination
- [00:40:20.810]including redlining, and so on and so on.
- [00:40:24.450]And the point she was making is that this discrimination
- [00:40:26.750]made it much more difficult for racial minorities,
- [00:40:29.730]especially Blacks, but others as well
- [00:40:32.310]to accumulate wealth in this country.
- [00:40:34.810]Today there's tremendous economic inequality in the U.S.
- [00:40:38.830]along racial lines.
- [00:40:41.110]She noted that white families have about eight times
- [00:40:43.510]the wealth level as Black families on average,
- [00:40:45.850]and that profound disparity is a direct product
- [00:40:50.310]of the history of those
- [00:40:52.070]of that discriminatory governmental treatment.
- [00:40:55.530]So Justice Jackson's takeaway point was that given
- [00:40:59.030]the historical governmental discrimination
- [00:41:02.930]against racial minorities, and the fact
- [00:41:05.470]that that discrimination created tremendous inequality
- [00:41:09.210]that persists to this day,
- [00:41:11.410]it's profoundly unfair and unjust to say
- [00:41:14.650]that now the government can't do anything
- [00:41:16.950]to try to remedy some of those disparities.
- [00:41:20.230]And she concluded, and here I'll quote her saying,
- [00:41:24.790]"It's a small irony that the judgment
- [00:41:26.830]the majority hands down today will forestall the end
- [00:41:30.490]of race-based disparities in this country,
- [00:41:32.570]making the colorblind world
- [00:41:34.590]the majority wistfully touts
- [00:41:36.390]much more difficult to accomplish."
- [00:41:40.050]All right, thank you.
- [00:41:41.270]I wanna go to the audience
- [00:41:42.370]because I see there's a question in the Q&A,
- [00:41:45.870]because I think it speaks to one of the questions
- [00:41:48.730]that I was gonna ask next, like where do we go from here?
- [00:41:52.450]And so I will read the question,
- [00:41:55.890]if that's okay with everyone.
- [00:41:57.790]It's actually a two-part question.
- [00:42:01.250]The participant asks, "What is the likelihood
- [00:42:03.630]that we could abolish preferential status
- [00:42:06.630]in legislation referring to legacy students
- [00:42:10.070]and non-legacy students
- [00:42:11.530]so that students are admitted to college across the U.S.
- [00:42:14.890]on the same ground?"
- [00:42:16.110]So I think what the person is asking is,
- [00:42:18.150]is there a case that could come forward
- [00:42:20.310]that would challenge admissions based on legacy?
- [00:42:24.890]And then the second part to that question is,
- [00:42:27.450]"What can we as students do to change the ideology
- [00:42:30.890]of legacy students being more important to a university?
- [00:42:34.890]In other words, that universities see legacy students
- [00:42:37.610]as being more important
- [00:42:38.810]than diversifying the student population
- [00:42:41.250]along race lines or what we would consider racial lines.
- [00:42:47.290]How can we make our institutions more inclusive
- [00:42:49.930]and push for honest emissions on the same grounds
- [00:42:53.330]no matter who you are or who you come or who you came from?"
- [00:42:57.970]I don't know if anybody wants to take that question,
- [00:43:00.250]but I think that goes into the question I was gonna ask is,
- [00:43:04.250]which is about our current climate,
- [00:43:07.130]and how do we deal with the harsh reality
- [00:43:11.130]of wealth and racial inequality and its consequences
- [00:43:14.630]for affirmative action in all sectors
- [00:43:18.690]but specifically, since we're talking about the university,
- [00:43:21.410]with regard to university admissions?
- [00:43:25.780]And anyone can take that question.
- [00:43:31.320]I mean, I guess I can start
- [00:43:32.460]but then, but professors Wilson and Jefferis,
- [00:43:35.140]and Dr. Jones, please feel free to just jump in
- [00:43:37.140]and interrupt me.
- [00:43:37.860]I guess I'll start by just throwing out some ideas
- [00:43:40.560]on the first one on legacy admissions.
- [00:43:43.500]I think the question asked about whether legislature
- [00:43:47.640]could do anything to get rid of it.
- [00:43:50.860]In theory, Congress could, I mean, in practice
- [00:43:54.540]Congress can barely keep the government funded,
- [00:43:57.580]so I wouldn't expect Congress to be able to do anything
- [00:44:00.340]on this or anything else important
- [00:44:02.180]for the foreseeable future.
- [00:44:04.340]However, as the question suggests, there is, especially
- [00:44:07.780]in the wake of the Supreme Court's decision this year,
- [00:44:10.580]I think new momentum towards getting rid
- [00:44:13.260]of legacy preferences and admissions.
- [00:44:15.480]And there's been some litigation filed,
- [00:44:18.460]and I think some of the Supreme Court justices,
- [00:44:21.580]including some of the conservatives, seemed open
- [00:44:24.560]to that idea.
- [00:44:25.820]So it's possible that you could get a court ruling
- [00:44:27.960]getting rid of legacy admissions.
- [00:44:30.440]It's also possible state legislatures would pass the laws
- [00:44:34.560]getting rid of legacy admissions.
- [00:44:37.000]It's also possible that some universities will sort
- [00:44:39.720]of feel the political heat of continuing legacy admissions
- [00:44:43.280]and just decide on their own to stop it.
- [00:44:46.860]But I'd say that this is obviously
- [00:44:49.940]an important issue and, it's just unclear right now
- [00:44:53.320]exactly how that's gonna play out.
- [00:44:57.220]Professor Wilson, do you wanna jump in
- [00:44:58.500]or Professor Jefferis?
- [00:45:00.960]Yeah, Catherine.
- [00:45:02.340]Yeah, I'll just add that I believe that there has been
- [00:45:06.500]a number of conversations across the country
- [00:45:08.860]to come up with some ideas as to how we might follow
- [00:45:13.580]the Supreme Court's guidance and still strive
- [00:45:17.820]for those goals of diversity in our classes
- [00:45:22.000]and at the university level.
- [00:45:25.120]And many of them discussed, many of them are being used.
- [00:45:30.300]The question is whether or not we can move as quickly
- [00:45:33.100]as perhaps we could have moved
- [00:45:35.500]under an affirmative action program.
- [00:45:38.900]I came across some statistics in federal government contracting
- [00:45:43.380]during the time periods that this was used
- [00:45:45.940]where you can see that it was very effective,
- [00:45:48.360]at least in federal contracting,
- [00:45:49.660]to move and open employment opportunities.
- [00:45:53.160]But again, we can move on using these other strategies.
- [00:45:57.460]It just may not be as quick.
- [00:45:59.920]Yeah, I've heard the same thing
- [00:46:01.580]that there's a sense of lag.
- [00:46:03.100]And I like that you pointed out, Professor Wilson,
- [00:46:05.120]that if we look at the federal sector, right,
- [00:46:09.380]with labor practices and contracting,
- [00:46:11.500]we see that affirmative action work.
- [00:46:13.140]And you also said it was gender and race, right?
- [00:46:16.360]It wasn't just race, but we seem to only talk
- [00:46:19.240]about affirmative action as a racial preferential.
- [00:46:22.380]So thank you so much for raising that up.
- [00:46:24.500]Professor Jefferis, you wanna add on anything?
- [00:46:26.280]Yeah, I was just gonna, I don't have a lot to add
- [00:46:29.180]beyond echoing what professors Berger and Wilson said,
- [00:46:31.840]but in terms of thinking about what do we do
- [00:46:34.440]with this current composition of the Supreme Court,
- [00:46:37.580]and what they've told us the law says,
- [00:46:40.620]I've been really persuaded lately
- [00:46:42.760]by trying to attack this concept that colorblindness,
- [00:46:50.840]the colorblind Constitution is the way it is
- [00:46:54.340]because it requires us to respect individuals.
- [00:46:58.020]We can't consider race because doing so negates respect
- [00:47:01.700]for individuals and to put it differently,
- [00:47:04.820]the court said, "At the heart of the Constitution's guarantee
- [00:47:08.840]of equal protection lies the simple command
- [00:47:11.140]that the government must treat citizens as individuals,
- [00:47:14.140]not as simply components of a racial, religious, sexual,
- [00:47:17.580]or national class."
- [00:47:18.920]And I would direct people to an article by Benjamin Eidelson
- [00:47:22.980]at Harvard Law called "Respect, Individualism,
- [00:47:25.340]and Colorblindness," and he's in that article,
- [00:47:27.760]I think quite persuasively, attacking this notion
- [00:47:31.000]that the two are incompatible.
- [00:47:33.020]You can't respect someone as an individual
- [00:47:34.860]and consider their race.
- [00:47:36.220]And he's saying, well, in fact,
- [00:47:37.300]it might be necessary to do so.
- [00:47:39.760]And I've been thinking about that in light of
- [00:47:41.480]what the Supreme Court is telling us
- [00:47:43.160]the Constitution is colorblind for this reason,
- [00:47:45.160]and how do we respond to that?
- [00:47:46.720]How do we rebut that principle
- [00:47:48.500]that those two notions are incompatible?
- [00:47:51.260]And that might be a way forward.
- [00:47:52.900]I don't know, thinking about litigation
- [00:47:54.540]or challenges going forward
- [00:47:57.880]might incorporate something like that,
- [00:47:59.480]which I think reflects what justices Sotomayor and Jackson
- [00:48:02.680]are getting at a bit in their dissents.
- [00:48:06.320]Absolutely, thank you so much for that.
- [00:48:08.660]And I concur, I think there's a lot of ways
- [00:48:11.260]that we can make that argument.
- [00:48:12.660]It's just like legally, how does that parse?
- [00:48:15.360]And there have been cases where groups have gotten
- [00:48:17.760]restitution as a group.
- [00:48:19.840]I'm thinking about Japanese-Americans in particular.
- [00:48:22.900]And of course, that was because they were discriminated
- [00:48:25.120]against as a group, right, during the Second World War.
- [00:48:29.020]So I'm just thinking of ways that creatively
- [00:48:31.560]there could be a discussion about when it is appropriate
- [00:48:33.880]to think about restitution reparations.
- [00:48:37.100]And a lot of people have argued that affirmative action
- [00:48:39.860]is a kind of reparation for past injustices.
- [00:48:43.800]Or as I think you mentioned this,
- [00:48:46.800]past and present discrimination,
- [00:48:48.320]I think was the phrase that Dr. Wilson read from either,
- [00:48:52.320]it was either Carter or Reagan.
- [00:48:53.920]But it is really important for us to remember that,
- [00:48:56.840]that that was the goal.
- [00:48:58.620]And it was understanding that individuals alone
- [00:49:01.980]and quoting from the commencement speech as Dr. Wilson did,
- [00:49:07.260]that individuals alone could not face the challenge
- [00:49:13.080]of these structural forms of discrimination
- [00:49:15.920]that had been embedded in our society.
- [00:49:18.720]And so it was proper for the federal government
- [00:49:21.520]to invest in this kind of affirmative action.
- [00:49:23.960]So we have another question, I do believe, in the chat.
- [00:49:27.740]This is "In the Students for Fair Admissions case,
- [00:49:32.000]Justice Thomas wrote his own concurring opinion
- [00:49:35.560]in support of ending affirmative action.
- [00:49:38.160]He has many times in the past
- [00:49:39.560]voiced his displeasure towards it,
- [00:49:42.060]even though he was a recipient of affirmative action.
- [00:49:45.240]Do you think that Justice Thomas
- [00:49:46.680]was so against affirmative action
- [00:49:48.220]because he felt a chip on his shoulder,
- [00:49:49.780]and he felt inferior to his classmates
- [00:49:51.920]because he got into Yale because of affirmative action
- [00:49:54.880]and he didn't think he would have gotten in without it?"
- [00:50:01.100]Yeah, I do think that there's a lot to that.
- [00:50:03.720]I mean, he's spoken very candidly about this,
- [00:50:06.460]what he feels is the stigmatic effect
- [00:50:08.360]of affirmative action.
- [00:50:10.740]And he felt that as a recipient of affirmative action,
- [00:50:15.000]it stamped him with a badge of inferiority.
- [00:50:17.460]And I think, I don't agree with Justice Thomas
- [00:50:20.040]on this or many topics, but I think,
- [00:50:23.380]I think his position is one we have to take seriously.
- [00:50:27.300]And I think he's written quite powerfully about that.
- [00:50:30.440]Many years ago at our law school,
- [00:50:32.220]we had a visiting federal judge
- [00:50:34.880]as part of our jurist-in-residence program
- [00:50:36.440]who had been classmates of Justice Thomas's
- [00:50:38.980]at Yale Law School.
- [00:50:40.640]And he said in a conversation I was having with him
- [00:50:43.720]that just, that, you know, then Clarence Thomas,
- [00:50:46.520]now Justice Thomas, you know,
- [00:50:48.000]was talking about those feelings all the way back then
- [00:50:50.720]when he was in law school, and it pained him quite a lot.
- [00:50:53.540]So, you know, I think that is a,
- [00:50:57.080]I mean, my own personal view, is that is a non-frivolous
- [00:51:00.020]concern about affirmative action.
- [00:51:04.280]And, you know, one thing that, you know,
- [00:51:07.940]Nebraska obviously has a constitutional amendment
- [00:51:10.400]that prohibits affirmative action.
- [00:51:12.780]And I think there are a lot of things wrong with that.
- [00:51:15.520]But one of the, I suppose, benefits of that
- [00:51:19.700]is when I teach affirmative action,
- [00:51:21.540]I can make the point that none of the students in the room
- [00:51:24.740]are the benefits of affirmative action
- [00:51:26.380]because we don't have it.
- [00:51:27.820]And I think that, you know, to the extent
- [00:51:31.540]we're not as diverse as we should be,
- [00:51:33.900]as I think probably most of us would like us to be,
- [00:51:36.520]I think that's an important point to make
- [00:51:38.520]so that students don't feel
- [00:51:39.900]that other people are looking at them
- [00:51:42.200]as though they're the recipients of it.
- [00:51:43.960]So, you know, my own view is that the arguments
- [00:51:46.000]in favor of affirmative action,
- [00:51:48.440]including the arguments that Justice Jackson
- [00:51:50.380]makes very powerfully in her dissent
- [00:51:52.160]outweigh the other arguments.
- [00:51:54.780]But I do think if we're being
- [00:51:56.580]kind of intellectually honest about it,
- [00:51:58.140]we have to take seriously Justice Thomas's concerns.
- [00:52:02.420]But I mean, that's my, you know, that's my own view.
- [00:52:05.400]I, you know, I very much want to hear
- [00:52:07.380]what the rest of you think about that.
- [00:52:10.540]Does anybody else want to weigh in,
- [00:52:12.140]Dr. Wilson or Dr. Jefferis?
- [00:52:15.100]I mean, I'll say in my own, you know,
- [00:52:17.760]I've felt that before.
- [00:52:19.040]I know people have assumed that I've received a job
- [00:52:21.880]as an affirmative action candidate.
- [00:52:24.660]I've been told that, that was years ago.
- [00:52:28.720]But I think this, like you said,
- [00:52:31.320]the stigma is there in the mind of the person, right?
- [00:52:35.980]That is the person who is lodging that accusation.
- [00:52:39.880]And some people internalize it.
- [00:52:41.360]But I think you're right.
- [00:52:42.100]If we're intellectually honest, as you say,
- [00:52:43.860]we have to contend with that environment
- [00:52:46.940]that it creates for the student
- [00:52:48.800]who might be a beneficiary of such a program.
- [00:52:52.720]Does anybody else want to jump in
- [00:52:54.200]before I read another question?
- [00:52:55.860]And we do want to end at 1:30,
- [00:52:58.000]but I want to get some student questions in.
- [00:53:02.370]Okay, well, here's one.
- [00:53:03.250]Maybe this will help you, help a student.
- [00:53:06.510]I'm an education major.
- [00:53:08.170]Do you have any ideas as to how I can teach
- [00:53:11.610]and promote inclusivity in my classroom
- [00:53:14.290]amongst my students, regardless of their race?
- [00:53:21.670]And then the last question is, so you can take one or two,
- [00:53:25.930]does the ruling have any potential doctrine effect
- [00:53:30.530]on how funding can be guided by public universities
- [00:53:33.790]with regard to fellowships and scholarships
- [00:53:36.530]geared towards diverse students or research?
- [00:53:41.470]So for instance, research monies
- [00:53:43.530]that might be set aside for particular groups,
- [00:53:48.190]is that, does that ruling outlaw that?
- [00:53:51.270]Scholarships and fellowships or research for students?
- [00:53:56.890]Not explicit, to take the second question, not explicitly.
- [00:54:00.530]But there are right-wing groups
- [00:54:04.910]that are deeply opposed to affirmative action
- [00:54:07.350]that are sending letters to universities around the country
- [00:54:10.290]and businesses saying explicitly,
- [00:54:14.110]"We're watching you very closely."
- [00:54:16.310]And they think they have the court on their side,
- [00:54:19.130]they do have the court on their side,
- [00:54:20.290]so there will be more litigation fleshing that out.
- [00:54:22.810]But so far, no, but that doesn't mean
- [00:54:25.590]that the implications of this decision won't be pressed.
- [00:54:30.350]Dr. Wilson?
- [00:54:32.890]I wanna go back to that last question
- [00:54:35.410]and maybe a bit of the one before.
- [00:54:38.590]But if we think about why companies or corporations
- [00:54:44.250]benefit from affirmative action, it's the diversity.
- [00:54:47.130]It's that on one hand, it's the remedy,
- [00:54:50.990]but on the other hand, it's how do our decisions
- [00:54:54.410]lead to more growth for the organization?
- [00:54:58.210]And I don't know if there might be something
- [00:55:00.250]in that thought that guides us as to the question
- [00:55:05.830]about how do you teach or that stigma approach.
- [00:55:09.150]If we change and think about what is the benefit
- [00:55:12.070]of having a variety of folks in a classroom
- [00:55:16.130]or in a business, and try to draw, direct our energies
- [00:55:24.310]towards those thoughts, that might be a way,
- [00:55:29.570]that's what we want.
- [00:55:31.390]If you poll people, certain outcomes,
- [00:55:34.210]ask them certain ways, I think everyone is in agreement
- [00:55:37.990]that these are laudable goals.
- [00:55:42.260]Perhaps that should be the focus
- [00:55:43.420]of what we're thinking about.
- [00:55:44.720]I'm not sure that we have tools to get there,
- [00:55:46.880]but maybe if we can the mindset, some of those negatives
- [00:55:51.700]might be weakened.
- [00:55:55.540]Absolutely, I agree.
- [00:55:56.900]I think we need new language to think about
- [00:55:59.160]how we talk about affirmative action
- [00:56:00.880]and now that's all just diversity and inclusion, right?
- [00:56:04.760]Like, what does that mean and why it is a benefit
- [00:56:07.780]instead of being on the defensive, you know, just say,
- [00:56:11.300]this is what, and look at what it's brought
- [00:56:14.240]to various sectors of our society.
- [00:56:17.520]And one of the ones is of course the military.
- [00:56:19.640]And it was clear in that decision, please correct me
- [00:56:22.340]if I'm wrong, that they said they were not going
- [00:56:24.960]to address anything that had to do with affirmative action
- [00:56:27.880]in the military or any of the things that they're doing
- [00:56:30.580]to further diversify the ranks.
- [00:56:33.040]So it's important for us to understand
- [00:56:34.880]that there are certain forms of diversity.
- [00:56:41.140]This is the last question, and we gotta go
- [00:56:43.420]because it's 1:27. Do you personally believe
- [00:56:45.540]it is ethical to use race as a factor in college emissions
- [00:56:48.460]to promote diversity and address historical inequalities?
- [00:56:51.780]Well, I can answer that myself.
- [00:56:53.460]I have no, the question of it is ethical
- [00:56:56.220]to use race as a factor?
- [00:56:59.120]I think you can use race as a factor.
- [00:57:01.180]And I think there's, the ethics is in the ethical question
- [00:57:04.720]to me is, how do you repair structural, historic
- [00:57:09.140]discrimination that has left an impact
- [00:57:11.900]or a legacy on our current climate?
- [00:57:17.140]And for me, that's the ethical question
- [00:57:19.480]that as, if you remember what Professor Wilson was saying
- [00:57:23.860]in her presentation, that the executive branch
- [00:57:26.240]was trying to answer. How do we address the things
- [00:57:30.760]that have gone on in the past that still resonate
- [00:57:34.280]in the present so that you can have,
- [00:57:36.300]or even when Professor Jefferis was talking,
- [00:57:38.580]you can have an Alabama state trooper population
- [00:57:44.520]with no Black people.
- [00:57:46.060]And then when the Black people are in,
- [00:57:47.800]they're not in the upper ranks.
- [00:57:49.280]So the ethical question for me is not,
- [00:57:52.080]is not should we take race into account,
- [00:57:55.100]but what does race allow us to remedy and to repair?
- [00:57:58.820]And if we approach it from that place,
- [00:58:01.200]I think you get to a different answer,
- [00:58:02.820]or as Dr. Wilson says, how is diversity benefiting us all?
- [00:58:07.120]Because I think the problem is that is framed as if,
- [00:58:10.960]if you let this Black student in
- [00:58:13.060]or this Indigenous student in
- [00:58:14.920]or this Latino student in or Asian student in,
- [00:58:17.860]you're taking something from someone else.
- [00:58:20.060]And that's the narrative that is guiding the conversation.
- [00:58:23.020]That is not the case, right?
- [00:58:24.720]If you look at some of these schools,
- [00:58:26.260]their populations of non-white students
- [00:58:29.980]are like maybe 5% or 10.
- [00:58:33.360]So there, no one's getting, anything's not,
- [00:58:35.280]there's not anything really being taken away from them.
- [00:58:38.800]It's adding.
- [00:58:39.920]So what is that discussion about?
- [00:58:41.600]How do we think about the ethics of repair
- [00:58:44.280]and restoration and remedy?
- [00:58:47.840]And I think that's where we go from there.
- [00:58:50.280]So I think that's a great question.
- [00:58:51.820]Thank you.
- [00:58:52.260]Anybody else?
- [00:58:53.340]We got a couple of minutes.
- [00:59:00.440]Well, I wanna thank you all for participating.
- [00:59:04.080]Our wonderful law school faculty and partners,
- [00:59:07.760]Dr. Wilson, Dr. Berger, Dr. Jefferis.
- [00:59:11.440]This has been such a wonderful conversation.
- [00:59:15.140]If you can, students, I don't know all the rules,
- [00:59:18.600]but if you can take a law class?
- [00:59:20.960]I am not exactly sure that can happen.
- [00:59:23.560]But I know that you do teach
- [00:59:25.000]an undergraduate class, correct, Dr. Wilson?
- [00:59:29.570]Absolutely.
- [00:59:30.770]Because I think these are really great classes to help us,
- [00:59:33.650]as well as our own class, that History 115,
- [00:59:37.370]to help us really think about these important issues
- [00:59:40.210]in our legal system here in the United States.
- [00:59:44.150]So thank you for attending.
- [00:59:46.710]And Elodie Galeazzi,
- [00:59:50.030]can you talk about our next webinar briefly?
- [00:59:52.850]Yes, so thank you again, Professor Berger,
- [00:59:56.290]Jefferis, and Wilson, and Dr. Jones for his conversation.
- [01:00:00.050]It's been an honor to have you here
- [01:00:01.430]and we are so grateful for your time
- [01:00:03.630]and also appreciate the way your projects
- [01:00:05.850]are laying the foundation for some of the questions
- [01:00:08.710]that we are asking at the U.S. Law and Race Initiative.
- [01:00:13.650]So I'd also like to thank our audience for watching
- [01:00:16.510]and for sending in the questions,
- [01:00:18.090]and also the U.S. Law and Race team for the support
- [01:00:23.030]and helping create that webinar.
- [01:00:26.290]So for everyone, you can learn more
- [01:00:27.830]about the U.S. Law and Race Initiative
- [01:00:29.790]at uslawandrace.unl.edu.
- [01:00:33.910]And you also have their additional information
- [01:00:36.250]about our event series,
- [01:00:37.550]as well as some YouTube videos from our past events.
- [01:00:41.790]And you can find all that at
- [01:00:43.560]events.unl.edu/uslawandrace.
- [01:00:48.370]And so we're also thrilled to announce our next webinar,
- [01:00:51.310]which is actually next week on November 2nd
- [01:00:54.630]from 12:30 to 1:30 p.m. Central Time.
- [01:00:57.510]And then Dr. William Thomas will lead a conversation
- [01:00:59.730]about the history of equal protection clause
- [01:01:02.670]and the meaning of the 14th commencement.
- [01:01:05.850]So again, thank you, again.
- [01:01:07.450]Have a great rest of your day.
- [01:01:09.050]Go check the website to register for webinar,
- [01:01:11.030]and we'll see you next week.
- [01:01:13.170]Thank you.
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