Deep Dive Episode 216 – Title VI, College Admissions, and Public Opinion

With the Supreme Court about to hear two cases involving the use of race in admissions at Harvard and the University of North Carolina, what do Americans actually think about preferential treatment? Dr. Althea Nagai, Senior Research Fellow at the Center for Equal Opportunity (CEO), presented her analysis of recent data from the Pew Research Center on what Americans believe colleges should consider when deciding whom to admit. Her study focuses on the attitudes of some of the beneficiaries of affirmative action, based on a large sample of black and Hispanic respondents as well as Asians and whites. Joining Dr. Nagai on the panel discussion were Theodore Johnson, Director of the Fellows Program at the Brennan Center for Justice, and moderator Linda Chavez, CEO Chair.

Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

On April 6, 2022, the Regulatory Transparency Project hosted a virtual event titled, “Title VI, College Admissions and Public Opinion.” The following is the audio from that event. We hope you enjoy.

 

Nate Kaczmarek:  Good afternoon. And welcome to this Regulatory Transparency Project webinar. Today, we will be discussing “Title VI, College Admissions and Public Opinion.” We are very much looking forward to an informative discussion. My name is Nate Kaczmarek. I am Vice President and Director of RTP. As always, please note that all expressions of opinion are those of our guests today. And we are very happy to once more welcome an excellent moderator in Linda Chavez. 

 

Hi, Linda. How are you? I see you’re muted, so I’ll — 

 

Linda Chavez:  I’m great.

 

Nate Kaczmarek:  Good, and glad to have you. I think Linda is certainly well known to our audience. She serves as Chairman of the Center for Equal Opportunity. She has published opinions and columns in newspapers across the country, and appears regularly on cable news. She’s an author of three books: Out of the Barrio: Toward a New Politics of Hispanic Assimilation, An Unlikely Conservative: The Transformation of an Ex-Liberal, and Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics

 

Linda has a very distinguished career, which you can read about in full, along with the complete bios of all our guests today, on our website, RegProject.org. In a moment, I’ll turn it over to Linda. Once our speakers have had ample time to debate and discuss our topic, we’ll go to audience Q&A. So please think of the questions that you’d like to ask them. 

 

Audience questions can be submitted via the chat function on Zoom. And we will endeavor to answer as many of the questions as you submit through the chat function. With that, thank you everyone, for being with us today. Linda, the floor is yours.

 

Linda Chavez:  Thank you very much, Nate. It’s a pleasure to be with all of you and to talk about what has been a controversial issue for my entire career, dating back to the early 1970s when I taught at UCLA in one of the affirmative action programs at UCLA. 

 

We talk about affirmative action in higher education. It is a program that goes by that name and other names, and has been used by public colleges and private colleges and universities, going back, as I say, to the late 1960s, early 1970s. But it has been controversial from the beginning. And the Center for Equal Opportunity, which has existed since 1995, has done a number of studies of affirmative action admissions to colleges and universities. We studied dozens of such schools. And one of our speakers today, our main speaker, has been a participant in those studies going back more than 25 years now. 

 

The practice began to be most controversial in legal circles during the 1970s. And the first big Supreme Court decision involving affirmative action was filed by a man named Alan Bakke, who was twice turned down for admission to the University of California Medical School at Davis. In 1978 his case came before the court. And the court struck down part of the UC Davis program, which, essentially, set aside a certain number of slots that would be available only for minority applicants.

 

The court decided that that constituted a quota and was unconstitutional. However, in a very convoluted study, convoluted finding by the court, the court determined that diversity could be a compelling state interest. And, so long as the university did not use a specific quota or give particular — make race the only factor in consideration for certain slots, diversity could be considered. 

 

That case in 1978 stood pretty much until it was challenged in 2003 by a student at the University of Michigan. And in that particular case, which was known as Grutter V Bollinger, a 5-4 decision, found — on this, by the way, the decision was authored by Sandra Day O’Connor — that race could be considered as one factor that campus diversity was, in fact, a compelling state interest. But she also opined that she expected that race, as a factor in admission, was a temporary measure and would probably not be needed after 25 years. We are coming very close to the 25-year anniversary of that case. 

 

Then, also in 2003, another case at the University of Michigan, Gratz v. Bollinger, involved the law school there. And, in that case, much like in Bakke, there was an actual points system, with a certain number of points being allotted to people, based on their skin color. That, in fact, was struck down. So two decisions came out in 2003, one upholding diversity and using race as a factor, but striking down, again, the notion that race being the determining factor did not go.

 

Then, in Texas, there was a Fifth Circuit court opinion, in the Hopwood case, involving a student named Cheryl Hopwood, who applied to the University and also alleged that race being a factor in the admission denied her her rights under Title VI and the Constitution. And the Fifth Circuit basically struck down the University of Texas’ system that used race as a factor. And so Texas decided to adopt — by the way, that decision was appealed to the Supreme Court. The Supreme Court decided not to take it. So that decision reigned throughout the circuit.

 

And, in that case, the University of Texas decided that they would adopt a plan in which ten percent of the student body in the UT system would be admitted, as long as they were graduates of the top ten percent of their local high school. But 90 percent would be admitted under a different program that, again, would take race into account as one factor in admission.

 

That case was — even though it was only in the circuit, there was a student at University of Texas who filed suit in the mid-2000s, 2016, in the case Fisher v. University of Texas. A decision was handed down that said that the 90 percent admission program that the University of Texas used where race was considered a single factor was permissible, that it did pass the strict scrutiny question. And that decision was handed down 4-3, with Justice Anthony Kennedy handing down the decision. There were only seven members who considered that case. Justice Scalia had recently died. And Justice Kagan decided to recuse herself from the case.

 

So that’s sort of where we are now. The Supreme Court is taking up two cases this term, one involving Harvard University and the other involving the University of North Carolina. And that’s the lay of the land, legally. What we’re here to discuss today is how the public feels about that. And we have an excellent analysis that Althea Nagai has produced for the Center for Equal Opportunity. And it’s available and up on our website. 

 

Althea is a Senior Research Fellow at the Center for Equal Opportunity. She has done, as I mentioned, many of CEO’s studies, all of which are available on our website, including studies at Virginia and Michigan and Arizona, as well as others. And she has written two papers for the Center for Equal Opportunity. Among her many published works, one was called “Too Many Asian Americans,” and the other was, “Harvard Investigates Harvard.” 

 

Joining us today, in addition to Althea, is Theodore Johnson, who is a Senior Fellow at the Brennan Center. He is also Director of the Brennan Center’s Fellows Program. He has a very distinguished and long career. I won’t go into all of it. But he is a retired commander in the U.S. Navy. He was a White House fellow. And he was also a military professor at the Naval War College. He’s also the author of a very distinguished book, one that I commend to all of you. And that book is called When the Stars Begin to Fall: Overcoming Racism and Renewing the Promise of America.

 

So, without further ado, I’m going to turn it over to Althea to present her paper. 

 

Althea Nagai:  Hi. Okay. I’m going to talk about public opinion. Am I coming on here?

 

Linda Chavez:  Yes.

 

Althea Nagai:  Okay. Good. Now, public opinions generally show that, when asked, Americans reject the idea of racial preferences in college admissions. And these polls typically report on the public as a whole. Now, the problem occurs when they sometimes will pull out the subgroups. And the subgroups are relatively small. And here we’re talking about fewer than 200 blacks, even fewer Hispanics, and, typically, no Asians. 

 

So what Pew did in 2019, they surveyed an enormous number of different racial and ethnic groups so that we could do subgroup comparisons comfortably. In the Pew survey we had roughly 1500 blacks, 1600 Hispanics. We had also 300 Asians. And we had about, fewer, about 3000 whites. So with this large number, they could ask all sorts of different questions regarding encounters about race. And one of the things they asked was about college admissions.

 

They wanted to know — they listed eight factors, and Pew wanted to know whether respondents thought each of these factors should be a major factor, a minor factor, or should not be a factor at all. The factors were academic factors, high school grades, and test scores; the non-academic, community service, athletics. They asked about being the first in their family to go to college. And they also asked legacy, race, and gender. 

 

So I’m going to talk about each of these factors and how the whites, blacks, Hispanics and Asians felt about each of these factors as it related to college admissions. Now, essentially, regarding academics, there was a large consensus. There was an overwhelming majority in each of these groups, saying that grades should be a major factor in college admissions. 

 

Test scores came in second. And four out of ten whites, blacks, Hispanics, and two out of three Asians said test scores should be a major factor. So we have grades and test scores. There was some agreement. There was a plurality that also said community service should be a minor factor in college admissions. And, from there on, we start to see that the other factors, there’s some disagreement. And then it breaks down by race. There was disagreement among the racial groups regarding whether first in the family should be a factor in college admissions. 

 

Most whites thought being the first in the family, most whites thought being first in the family should not be a factor in college admissions. In contrast, half or more of blacks, Hispanics, and Asians thought being first in their family should be a factor in college admissions. So if you think about this as social mobility and class, you really have this kind of breakout. I use that as an indicator of how much these groups favor social class as a factor. 

 

The others have to do with — oh, the other one that was not popular was athletics. The majority thought athletics should not be a factor. Six in ten whites thought athletics should not a factor at all. And in agreement were roughly half the blacks and half the Hispanics, not a factor. Now, most Asians thought it should be either a major or minor factor in college admissions, which I was kind of surprised. 

 

After that, they asked about legacy. In other words, should having a relative that attended a college be a major, minor, or not a factor at all in admissions? Most in every group thought legacy, these legacy connections, should not be a factor. So we have that kind of agreement. 

 

Now, finally, there is the issue of race and gender. On the issue of race, significant majorities of every group thought that race should not be a factor in college admissions. And let me go over the numbers a little bit. Seventy-eight percent of whites thought race should not be a factor. But it also included 66 percent of Hispanics, 62 percent of blacks, and 58 percent of Asians, race not a factor. How many thought race should be a major factor? We’re talking about four percent of whites, roughly one in five blacks, a little over ten percent of Hispanics and Asians. So race was not a popular — was rejected by those surveyed. Of course, it doesn’t matter, given, court opinion is not, court decisions are not dependent on public opinion. I realize that. 

 

The least popular factor in college admissions was gender. Eighty-six percent of whites thought gender should not be a factor at all. In agreement, we had 72 percent of blacks, 76 percent of Hispanics, and 68 percent of Asians. That was the most significant finding, I think, is how much the surveyed public rejected gender as a factor. Let’s assume that there’s a certain — this is just a survey. And the question becomes, then, what does this look like in reality. 

 

And here I’m going to turn briefly to California, because we did a short study of California Proposition 16. And in 2020, California had on the ballot a proposition that would bring back affirmative action, in other words, bring back racial preferences in government hiring, government jobs, and government — government jobs, government contracting, and public higher education. 

 

In the California case, 2020, Biden won California 64-34. Proposition 16, which wanted to bring back racial preferences in these categories, Prop 16 lost. Voters rejected Prop 16: 57 no, 43 yes. Even in L.A. County — which was the largest county, it’s a majority minority county — Prop 16 won with only 51 percent of the vote. So from all this public opinion and the case study of California, I don’t think there’s a lot of support when the public has a chance to weigh in. I don’t think there’s a lot of support for using racial preferences in government contracts, government hiring, and, of course, public education. Thank you.

 

Linda Chavez:  Thank you very much, Althea. And I’m going to turn it over to Ted. And, Ted, we’d like to hear your response.

 

Theodore Johnson:  Thanks so much for having me. I love that we’re having this conversation and wish there were more like it. And I found the findings from the research really fascinating. But I’ll be honest that they weren’t that surprising to me. 

 

I’m a black dude, grew up in North Carolina the son of a father who was Republican, a mother who was a Democrat. And if you were to ask them whether or not they think race should play a factor in whether or not they got accepted to the colleges that they went to or whether they got hired by the corporations, they would say no, that they would want to be considered on the merits of their work, on their intelligence. 

 

Yet, we live in a society where meritocracy is not always the thing by which we — it’s not the system by which we judge people’s talents or ability to do work. And so, as the Supreme Court has said, and, frankly, a question we should still ask ourselves is whether or not diversity is really a compelling state interest. 

 

And, if the answer is yes, then even when people say that they prefer race not be considered at all, if, under such a construct, we don’t create diverse environments, either for our students or for our workplace, and the state has said that diversity is a compelling state interest, then the state has a duty to incentivize that diversity, or allow organizations or entities that want to pursue diversity to do so, even if the people say, “We don’t want you to think about race.” And this plays out in a few ways. And I think the way to tackle it that may be most tangible is to ask why most black Americans, most Hispanic Americans, most Asian Americans, don’t like race, don’t want race to be considered when it comes to hiring or to admissions. 

 

And I can tell you, as was mentioned up front, that I spent 21 years in the military. And I have heard on two occasions, myself, said directly to me, that my selection as a White House Fellow and my promotion to Commander, were — the latter was said to be an affirmative action handout. And, again, that wasn’t hearsay. Someone said that to me. And the other, my selection as a White House Fellow in the first Obama administration, it was said that it was because I was black with a black president that this was how I landed these two things. 

 

Now, the military is supposed to be maybe the most meritocratic institution, when it comes to promotion, in the United States. And I had fellow officers telling me, basically, you got it because you are black. One of the reasons that we don’t see large support for race as a factor in admissions, as this survey sort of shows, is the stigma attached to you when you actually accomplish goals. 

 

When you overachieve, or when you meet all and exceed all expectations, there is an assumption that the only reason you can be in that space is because race helped you get in the door. And what I see these numbers telling us, the story that they’re saying is that minority Americans are rejecting the implication that their achievements are only a result of their race or ethnicity group. 

 

And so it is not so much that they reject the idea that having diverse campuses or workplaces are not good. It is a rejection of the idea that every one of their achievements should be, an asterisk should be attached to it. Because it was only because of that factor, and not their grades and not their test scores, that allowed them to that achievement. 

 

Now, whatever you might think of Judge Katanji Brown Jackson and her judicial philosophy, etc., once President Biden said that he was going to nominate a black woman to the Supreme Court, immediately, there were comments about, whoever this person is, being less qualified. And whoever this person is, being — I think a couple of Senators, one called her the beneficiary of racial quotas, another, an affirmative action handout. And she had not even been named when these things came out. 

 

This is what I’m talking about. So now, after Biden does name her, she has the stigma attached to her that the only reason she could have ever been a Supreme Court justice is because of her race, and, in her case, her gender. And so a rejection of these kinds of preferences, racial preferences or consideration of race, is a rejection of the idea that folks like us can only belong in places, only achieve certain things because of our race and not because of the other talents. 

 

The open question remains. If race, if diversity is a compelling state interest — and I believe that it is — and if race is one of the considerations to create diverse institutions — which I think is also good — then the question of implementation, of execution, is the thing we’re actually arguing about. And this is where the Supreme Court has not given us very good guidance. Every time a new case comes up, it says, “For this particular instance, it’s no good. For this particular instance, that’s acceptable.” But there’s no blanket guidance, except for the fact that racial quotas are not acceptable when it comes to admissions or hiring. Some government contract quotas are still around.

 

So, I like Texas’ system, its university system, which says that if you graduate in the top ten percent of your high school class, no matter where in the state you are, you get automatic admission to the University of Texas. And that mean that the inner-city school in Houston, whose academic profile doesn’t look anything like the suburb school of Dallas, if you finish in the top ten percent of either of those schools, automatic admission. I like that. And then, for the remaining slots, race is a factor among many. And the Supreme Court, in Fisher v. Texas, both iterations, essentially said, “That sounds good.”

 

In Seattle, in the Parents Involved case, they said, “If you force a percentage of diversity by racial and ethnic group for your public schools, that’s not permissible. Because you’re basically setting some kind of percentage guidelines for each race and then moving students around to meet these guidelines. And that’s eerily close to a quota.” 

 

So this is where we are today. If we do believe that diversity is good for the country, if we do believe that racial diversity is one of the many diversities, including first gen, including class and gender, etc., if we believe that these things should be considerations, then the open question is how best to implement this, such that no one group is unduly preferred or unduly discriminated against in the interest of creating diversity. And this is — I think we’ll get another indication of where the Supreme Court is on this in the next term. 

 

Linda Chavez:  Thanks very much Ted. Let me just mention that in 1996, in the state of California — Althea talked about the proposal that was on the ballot in 2020 to reverse what was a constitutional amendment in California that essentially banned consideration of race in college admissions, in contracting, and in employment. Many people said, when that initiative passed in 1996, that we were going to have resegregation of colleges and universities in California. That is not, in fact, what happened. 

 

The numbers of black and Latino students who attended college in the state actually went up systemwide. There was a difference in some of the schools. Students who might have previously been admitted under an affirmative action racial preference at, say, UC Berkeley or UCLA, may have ended up going to Riverside, or Santa Barbara, or one of the other schools in the system. But the overall numbers of students graduating actually went up. And, if my recollection is correct, so did the numbers of students who actually graduated from college. Because, after all, getting in is just the first step.

 

But I wanted to talk and throw a question to Althea. Because I think Ted has done a very good job in describing the complaints about banning race as a consideration, that somehow we would have a lack of diversity. But the two cases that are going to be before the courts this year, Althea, you’ve written about them extensively. And in this instance we have not — 

 

Althea Nagai:  — I think I lost you, here.

 

Linda Chavez:  — not white students, who have been denied access to Harvard, but Asian students, another racial minority and one that, frankly, has experienced significant discrimination over the long history of their tenure in the U.S. So maybe, just for a minute, you might respond to that, Althea.

 

Althea Nagai:  I lost you in the connection, there. I’m having an unstable internet connection. So if you can condense it into one question. 

 

Linda Chavez:  So my response was, what about Harvard, where it’s not white students? It isn’t that Harvard would become all white. 

 

Althea Nagai:  Right.

 

Linda Chavez:  It’s that Harvard might become increasingly Asian. And yet, Asians are a minority that has been discriminated against over the long history of their tenure there.

 

Althea Nagai:  I have to say, in the 80s, where I think — and there are some schools where Asians are given a small preference. In the 80s, Asians were considered in the preference group. And all of a sudden, the thing switches. And it is head-spinning. I think, in Harvard’s case, my impression was, given their models, that, had they just looked at academics, I think it would be a majority Asian. 

 

And so they started, they have all these other — I mean the parallel is also when, in the 1920s, when they wanted to keep down the, have an informal quota, have a limit on the number of Jewish students at Harvard, they would introduce all these other factors. And most significant was the personal interview. And we find, when we look at the Asian kids in Harvard, that the personal interview, again, was the most significant factor, regarding predicting admissions.

 

So in those areas where you, I think, where you have a lot of flexibility and judgment, and you can play with decisions, you can actually introduce some of these. You can actually have race as a bigger factor, but, under the guise of other things like the personal interview, which, of course, doesn’t apply to public universities, where you have 60 thousand applicants. But the smaller private schools, that’s where it does make a difference, I think. 

 

Linda Chavez:  Let me throw open some of the questions that we’ve gotten from the participants. The first question from Christopher Aquilina (sp) is, “Let me ask something no one has been able to answer. How do we define what category someone can check for their race on an application? Do we go by skin color or bloodline? How far back in the bloodline do we allow someone to go? They might have Hispanic heritage five generations back. Does that make them Hispanic? As for skin color, I am white, but have been mistaken for being Cuban, and can tan dark enough to look Egyptian. Doesn’t that throw skin color out?”

 

I’m going to throw that one to you, Ted.

 

Theodore Johnson:  So this is, when you hear people say race is a social construct, this is what they’re talking about, that it’s not just about skin color. It’s not just about physical or facial appearances. But there’s so much more built into it. And it’s a complicated question. I remember reading a study about black students at Harvard Business School, and how a large percentage of them were actually black immigrant students from Nigeria or from the Caribbean, and not actually black American students. And so, often, those black immigrant students had means to pay full tuition, in a way that, perhaps, many of the African-American students who applied may not have.

 

And so you sort of meet your black — you appear diverse, even though you have a very low number of black Americans there, but a very large number of black students, or some significant number. And so when we say we want diversity, we have to, one, be very cognizant of what it is we’re asking for, what kind of diversity we’re trying to build. And then, two, to the question how do we determine what someone is, Rachel Dolezal went around telling people that she was a black woman for many decades, even leading chapters of the NAACP. And it only came out that she was actually white because her parents are white and expressed so in their interviews and on their driver’s licenses, etc.

 

So I don’t know, current day, when someone checks the box, white and Hispanic, does the university do an investigation to determine where that Hispanic heritage comes in? Or if someone says that I am one-sixteenth Native American, do they have to produce papers to show that they have affiliated with the tribe before they’re eligible for particular scholarships or a different kind of racial consideration? 

 

There are no hard and fast rules here. And each institution will have to weigh this. I don’t know if this is a place for the government to make its — to stake a position here. When they’ve done so in the past, using things like grandfather clauses, it was actually a way, a means to discriminate against people and not a way to create a better kind of governance. But institutions will need to be very clear about these kind of categories, in service of the kind of student body they’re trying to build. And whatever procedures they come up with doing so will need to be justified, but will also need to be carefully thought through.

 

Linda Chavez:  Althea, do you want to weigh in on that?

 

Althea Nagai:  My impression was, for the most part, having known people who work in admissions, and having filled out those endless questionnaires and census things and other survey instruments, it’s really self-identification. And we don’t really, — my impression with admissions is they have so many applicants that, if you say you are X, Y, or Z, they will just take it as a category. You can check more than one now. So it does get more complicated. But my impression is that, for decades, it’s always been self-identification, and the institution will not ask questions. Again, probably so that they don’t get into any legal problems.

 

Linda Chavez:  I guess my response on this would be that the law is pretty clear. And, despite the Supreme Court’s finding the diversity rational, the law says you can’t discriminate against someone because of their race or their color. That would seem to make Harvard, if Harvard is, as Althea pointed out in her excellent paper, engaging in interviews where they can essentially downgrade Asian students as not having the personality they want at Harvard, despite having the best test scores and the best grades. That sounds a lot like discrimination to me, which is why we have a case before the Supreme Court.

 

I would also say, even in terms of self-identification, I am a contrarian and sometimes refuse to fill out the box. I did that a couple of years ago at my doctor’s office and was surprised when I later got a form back saying check off to make sure everything is correct. I hadn’t checked a race or ethnicity box. And what came back was that I was African-American, which I thought was quite peculiar. But maybe they were hoping to show that they had a very diverse patient clientele. Maybe it was a mistake. Who knows? So this whole identification issue, I think, is one that’s difficult. 

 

I’m going to go on to some more questions. This one is to you, Ted. “You say that,” and it’s from Theodore Gephardt. “You say that if the state has a compelling interest in racial diversity, it should trump popular opinion. The question is does a state have a mind? Who determines compelling interest? Aren’t people sovereign? Isn’t the state a creation of the people? Isn’t the state supposed to be subordinate to the people?”

 

Theodore Johnson:  Great question. And this is, it’s a difficult one. So, yes, states are, basically, they’re people. But states are not sentient beings. They are geopolitical entities that are governed by their interests. If we look at the founding of the country, it was in the states’ interest to create a nation where all men are created equal, where they have these unalienable rights, and government derived its just power from the consent of the governed. But they didn’t allow women to vote. They allowed the institution of slavery to persist. In the first presidential election of 1790, only six percent of the people in this country were able to cast a vote for George, or against, George Washington. 

 

So, if the state is only governed by the will of its people, sometimes the tyranny of the majority can cause a state to live in a way that contravenes its expressed ideals of equality, of liberty, of prosperity and opportunity. So in those instances, and the fact that we have a liberal democracy, it is incumbent upon the state to protect the rights of the minority, even if public opinion suggests that the majority would rather not do so. 

 

If we look at an issue like guns, the vast majority of Americans want more background checks on who owns a gun. And we don’t have gun reform in this country. It’s very difficult to pass, because those that have the most influence over the national interests don’t see it as an important issue that needs to be tackled. 

 

So, if public opinion, again, governed public policy, then our interpretation of the Second Amendment would look very different than what the Supreme Court said in Heller, or what the lack of action in Congress has led to. In fact, there’s a case in front of the Supreme Court this term around guns and whether they can be transported fully assembled and whether you need permits, etc. So it’s still an open question. 

 

So I don’t know if this is going to be a satisfactory answer. But, though people constitute nations, nations’ interests are not simply the expression of public will. Nations’ interests, they do what they perceive to be in their interests, which is often determined by those who lead and those who wield influence over those who lead, and not simply a translation of public will. And certainly not the activation or sort of the implementation of polling results.

 

Linda Chavez:  I would say, though, Ted, that, in the case of California, the sovereign people of California, in 1996, decided they wanted to ban race as a consideration in state hiring and contracting and universities. Interestingly, it was not challenged. It did not get challenged in the courts and up the chain to the Supreme Court. It held. And it held until 2020, when, once again, the question was put before the people of California. And they upheld the ban on race. 

 

So, if, in fact, banning race is a consideration, was unconstitutional under the Fourteenth Amendment, which applies to the states, it is surprising to me that some of the advocates of affirmative action have not decided to make that case and take it all the way to the court. So public opinion can play a role. The people deciding that they don’t want race used seems to be fine. And it would be one thing if, as all the doomsdayers said, we had seen a resegregation of schools in California. But, as I suggested, the numbers just don’t bear that out.

 

I’m going to move on to another question — and this is also for you, Ted — which is how would you remove the stigma that you described, while still maintaining racial preferences? How do you go about doing that?

 

Theodore Johnson:  It’s extremely difficult. And some of it, frankly, lots of it, is beyond ones’ control. Again, to the personal example, if I was a lieutenant commander in the United States Navy after 12, 13 years of, 14, 15, years of service, and had been selected for commander, why was the commander promotion an affirmative action handout, but not the previous promotions or the performance that allowed me to be selected for that? 

 

And so the easy answer is to say for those who are admitted to these universities or hired in particular jobs or given certain promotions, to really excel in those positions so that you become the rebuttal to the asterisk, to the stigma. But if that were sufficient enough, then I wouldn’t have had someone say to me that my promotion was an affirmative action handout.

 

So this is a societal issue. It’s what Princeton Professor Eddie Glaude calls the “value gap,” that we just have different conceptions of where races fit in a kind of social hierarchy in this country. And if we consider black people, on the whole, to be less academically inclined, to be less likely to assimilate to sort of a dominant American culture, to be inferior on a number of other characteristics, then, when someone excels, they become the exception to the rule, instead of a case that shows the rule is BS.

 

So in order for us to remove the asterisk, we have to tackle head-on the kind of hierarchies we create in our society. And that is, frankly, like a long-term cultural issue that public policy is not sufficient, in and of itself, to address. You’re muted, Linda.

 

Linda Chavez:  That’s what happens when you get old. And I was going to say, my experience, similar to yours, Ted, has been people questioning whether or not I benefited from affirmative action, particularly in getting into college. And I have a very easy and simple answer. And that’s, “I’m too old.” I was in school before they had such preferences. So that absolves me. 

 

There was one of the panelists, or one of the participants said that the case has been made that the court held that the state could afford greater protection from racial classification than the Supreme Court found the Fourteenth Amendment afforded, and that they held that the Fourteenth Amendment allowed, but did not compel, race-conscious admissions. And that, of course, is what the findings were in the Michigan case. And that’s one of the things that’s going to be being challenged this time. And I guess one of the responses to your answer, Ted, was wouldn’t eliminating racial preferences help remove that stigma?

 

Theodore Johnson:  No. Because there is no racial quota in military promotions. There’s no racial — there’s no affirmative action when it comes to promotions. And so, if that were the case, no one would have said that to me. But there is this implicit view that all of our nation has kinds of racial preferences. I’ve seen interviews on from NPR to CNN to FOX News, when it comes to welfare benefits, or when it comes to job call-backs or apartment call-backs, that white Americans saying, “If I were black, I would have gotten that job,” or ,”If I were black, I would have gotten that apartment,” or, “I would have gotten this.” 

 

So even in institutions like the military, where diversity is in the military’s interest, to create and sort of cultivate, there are no racial quotas. There are no, “We’ve promoted this many people to this rank, but only five percent are black, so go back and find five percent more black people to even the numbers out.” That doesn’t happen. So if that were the answer, then I would have seen it play out in my career, and it just hasn’t worked out that way.

 

Linda Chavez:  Althea, I’m going to follow up with this with you, because you have done many of the studies for the Center for Equal Opportunity, looking at the various factors that are taken into account in college admissions. And maybe you could just briefly suggest — one of the allegations is, well, race is just one factor among many, and it isn’t really all that significant. What does the bulk of your work show, in terms of how large a factor race is in determining who gets into colleges and universities, at elite universities where they are highly competitive?

 

Althea Nagai:  We’ve done studies of the flagship public universities. And, well, let’s say a place like the University of Virginia or the University of Michigan. Next to test scores and grades, race is the dominant factor. And, again, what we use in these studies, we actually use the applicant data, and we have race, and we ask for test scores, grades. We have in-state versus out-of-state, again, because these are all state institutions. And we found that in, let’s say, at a state like Virginia, I believe oftentimes black out-of-state students — again, controlling for test scores and grades — had the largest preference, as out-of-state was outweighed by being black. 

 

So if you are black and out-of-state, you had a greater probability of getting in, given a certain test score and grade combo. You had a greater chance of getting in, as opposed to all other groups. And, if you were Asian, at that level, you were more likely to be rejected. I’m just using University of Virginia as an example.

 

The schools have gotten — what’s interesting is a place like Virginia, compared to the 1990s, they’ve used race, they’ve put less emphasis on race in admissions, that, in other words, our statistics have shown it reduced as a factor. And they put a lot more emphasis on being in-state. Again, it may be the politics of it. But I think Virginia was the only one I think we’ve really done over time. And this was something that I was surprised to find. But it is still a factor in Virginia admissions.

 

Linda Chavez:  We have a question from Devon Westhill, somebody I know well, because he is president of the Center for Equal Opportunity.

 

Althea Nagai:  Hi Devon.

 

Linda Chavez:  Devin asks, “Would the compelling state interest in the educational benefits that flow from a diverse student body — and he’s addressing this to you, Ted — require historically black colleges and universities and Puerto Rican schools to enroll less minorities and more whites?”

 

Theodore Johnson:  Yeah. It’s interesting. So, leaving the history of how these institutions came about aside, because there’s a whole case for the way their student body looks, connected to the history of their founding. I went to an HBCU. I went to Hampton University. And I remember telling this to one of my fellow colleagues when I first became an officer. And he was like, “HBCUs are racist, because white students can’t go there.” And I said, “That’s not true. In fact, you can get a minority scholarship for being a white student going to an HBCU.” And then he said, “Yeah, but why would I want to go there?” 

 

Even if HBCUs were to prioritize making their students — say, tripling the number of white students that go there, you have to find white students that are okay, that desire to want to go to an HBCU. And that is not easily done. So that’s one point. 

 

Another point is there is, actually, an HBCU that is almost 90 percent white. It’s Bluefield State College University in West Virginia, an HBCU because it was founded under the act that created many HBCUs in the 19th century. But the demographics of that community have changed drastically over the past century-plus. And so now it serves its mostly white community. And the student body, I think, is like 85-or-so percent white. But it is still an HBCU.

 

And so if HBCUs were not interested in a diverse student body — I think another one is Delaware State that is, I want to say, maybe a third of its student body, I could be wrong there, but a large number of its students are not black — this kind of goes back to the question of interests that was mentioned earlier. University interests are to bring, to admit students who attend, who graduate, who give back money, who pay tuition. And sometimes it’s in their interest to diversify their student body. And many HBCUs are learning this. White enrollment at HBCUs has increased over the last couple of decades, almost across the board. And then, again, in some places those numbers are vague. 

 

So if, again, as to the question, if we do believe diversity is a compelling state interest, shouldn’t we see these institutions increasing their white enrollment, HBCUs in particular? And I would say that’s actually happening. And one of the reasons it hasn’t happened more is because there are not a lot of white students who have HBCUs at the top of their list to attend.

 

Linda Chavez:  I’m going to throw this question open, probably to you, Ted, because you are a lawyer. But, Althea, you can weigh in as well. And it’s really a —

 

Theodore Johnson:  — I’m just a, I’m just doctoral guy. I’m not a JD.

 

Linda Chavez:  Oh, you’re not a JD.

 

Theodore Johnson:  No, no.

 

Linda Chavez:  Oh. Okay, right. All right. So you’re a Doctor of Law. Okay. So, well, then, but you can weigh in. Well, none of us, then, on this panel, are JDs. But the question has to do with the difference between public and private universities, and, of course, the cases before the court this term. One is a private school, Harvard University. The other is University of North Carolina, a state school. And, traditionally, Title VI of the Civil Rights Act, which says that if you receive a single dollar of federal aid, you are subject to the civil rights laws and you cannot discriminate on the basis of race. So that applies to Harvard, as well as state schools.

 

The Fourteenth Amendment, of course, applies specifically, makes it unconstitutional for the state to engage in discrimination. But, if we’re talking about private schools, the question is, why not just let private colleges and universities use any criteria they want to decide whom to offer admission? There are a couple of schools in the country that don’t take federal aid, Hillsdale College and Grove City College. These were involved in a very significant law case back in the 1980s, I believe. And because they don’t take aid, Title VI does not apply directly to them. But what about that, just in theory? Either of you or both of you can reply. Ted?

 

Theodore Johnson:  Yeah. So I think you’ve made all the points that I was going to make, that private institutions that take money from the government are bound. State institutions are bound by the Fourteenth Amendment. So if we were to say, “Let’s build a school,” or we pick one of these schools and say, “Okay, we’re just going to do whatever we want, and admit whoever we want, based on whatever set of characteristics we want,” I guess that is possible. But would we be okay if there was a school that said, “We don’t want any black people here,” or a school that said, “We don’t want any immigrants, or any Mexicans, or something, here”? 

 

I don’t think, if we are true to our principles, that we would be okay with that kind of school being allowed to openly and explicitly discriminate against a class of people, based on their race or ethnicity alone, just so that they can create the kind of environment that they hope to.

 

So, generally, I don’t think it’s a good idea to give private institutions the ability to openly discriminate on the basis of race. And I don’t know if I can answer it any better than that. And, certainly, if we were to allow such schools to sort of spread around, we know from our history that whenever people don’t like what their public school system is doing, the thing they do is create private schools to execute the kind of discrimination they wish the public sector had done. 

 

And so if we make the private sector a release valve for intolerance from our society, I don’t see how that benefits our society as a whole, never mind the people that aren’t admitted, but even the people that are admitted and attend. I don’t think they come out the other end better Americans from opting into an institution that explicitly discriminates on the basis of race.

 

Linda Chavez:  Well, and —

 

Theodore Johnson:  — I don’t know if that’s a good answer or not.

 

Linda Chavez:  And probably they’d have few students. By the way, one of the factors, in terms of being a recipient of federal aid, or of federal money, is if you take students who get federally guaranteed student loans, etc.

 

Theodore Johnson:  That’s right. That’s right. Right.

 

Linda Chavez:  So it doesn’t have to be direct. You don’t have to directly receive money. So there are very few schools where that’s the case. Again, Hillsdale, I think, does not allow federal aid to be used to pay for tuition there. They have a very generous endowment. And they give lots of scholarships as a result.

 

Let me ask something to follow up with something that is implicit in all of this discussion. And that is the criteria that are used for college admissions. We saw during the pandemic that many schools dropped the requirement for SATs or ACTs, the standardized tests that are usually used. MIT, I think, this last week, decided to reinstate that. And, of course, they are doing so because they want to maintain their elite status. And isn’t that one of the questions? 

 

If we had open enrollment at all schools, if there were no differentiation between schools that were competitive, with the best teachers and the top students and those who let, basically, anybody in who could pay the freight, that would resolve the problem of various barriers to access. 

 

Why do you think — Althea, maybe I’ll throw this one to you. Why do you think that universities do, and, MIT, now having reinstated SATs, what is the value of standardized testing?

 

Althea Nagai:  Standardized testing, combined with high school grades, they say are the best predictors of first-year college performance. Of course, after that, kids drop out. They change majors that are more in line with how they did. So it doesn’t, it’s harder to predict beyond it. But it’s definitely, those two in combination become the best predictors. 

 

I would add one more factor which has been, I think, only the last five, ten years: AP testing and AP classes, especially the AP tests. When schools, when universities, drop use of SATs, kids will still submit their AP scores. They will submit their AP classes. Because if you think of the process and the 60, 45, 50 thousand applicants that they get for someplace like Michigan, you have to figure out how are you going to differentiate yourself as the high school student from all others and all this other stuff.

 

Well it will still come in the back door. So, at least, in the case of MIT, I guess they’re just standardizing it. And they don’t have to deal with the issue of interpreting whether an AP class in this high school versus that high school is the same AP class. And not everybody submits AP tests. 

 

Linda Chavez:  I would also argue that the whole reason standardized tests were developed in the first place and used as a criterion was to try to eliminate the kind of discrimination, to make them more colorblind. You’ve got, in some cases, you have just numbers associated with an applicant, rather than a name. Because names can also be identifiers of race and ethnicity, in particular. But it was to try to, in a certain sense, level the playing field. And it’s ironic that now these very same tests are derided for being discriminatory and discriminating. 

 

Althea Nagai:  Yeah. In that regard, I do have to add that I came from a rural high school in Hawaii, very rural. And the SATs served as a way of flagging my application and standardized my abilities, in a way. Nobody would have noticed this rural high school. And back in the — I mean, they would just tossed it in the out basket, because we didn’t have AP classes. We had very few honors programs. So, in defense of those who would need something like an SAT score as a marker to single us out, I think that’s the plus side of having testing. Even if MIT would not use tests, students would still, I would argue, they would submit it anyway. It would be very hard not to notice.

 

Linda Chavez:  There is an excellent piece in the Wall Street Journal by Jason Riley, talking about the MIT decision. And it mentions the fact that not having the ACT and SAT scores did exactly what you feared would have happened to you, Althea, that it actually raised the socioeconomic barriers, it didn’t lower them. Because there were students who attended either inner-city schools or rural schools, may not have had access to those AP classes, and it was only their test scores that made them competitive. So I think that’s true.

 

Well, we have reached the end of our time. We didn’t get to all the questions. But I want to thank Althea and Ted, both, for participating, and turn it back to you, Nate.

 

Nate Kaczmarek:  Well, as advertised and expected, I think this was an excellent discussion. And great participation from our audience. Our thanks to Linda, Althea, and Ted, for your time and expertise this afternoon. From our audience, we welcome feedback by email at RTP at RegProject.org. Thank you, everyone, for joining us. Have a great day.

 

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Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

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This has been a FedSoc audio production.

Theodore Johnson

Director, Fellows Program

Brennan Center for Justice


Althea Nagai

Research Fellow

Center for Equal Opportunity


Linda Chavez

Chairman

Center for Equal Opportunity


Race & Sex

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].