Preet Bharara:

From CAFE and the Vox Media Podcast Network. Welcome to Stay tuned. I’m Preet Bharara.

Justin Driver:

And so the Supreme Court says, yeah, eliminating racial discrimination means eliminating all of it. Except if you happen to appear Mexican and be hanging out near a Home Depot, then it’s okay for you to be in effect thrown up against the wall and arrested.

Preet Bharara:

That’s Justin Driver. He’s a professor at Yale Law School and one of the nation’s leading scholars on constitutional law education and the Supreme Court driver has written extensively about the court’s role in shaping our education system. His latest book, The Fall of Affirmative Action, explores how decades of legal battles have redefined opportunity in higher education. He joins me to discuss the Supreme Court’s decision striking down affirmative action, the future of diversity in higher education, and what this ruling reveals about race inequality in America today. After the interview, I’ll answer your questions about a recent court ruling on deploying the National Guard to Portland. That’s coming up. Stay tuned. How will colleges respond to the Supreme Court’s decision striking down affirmative action? Yale law Professor Justin Driver joins me to discuss Professor Justin Driver, welcome to the show. So great to have you.

Justin Driver:

Glad to be with you. Thanks for having me.

Preet Bharara:

Congratulations on the book. I have it here. The Fall of Affirmative Action Race, the Supreme Court, and the Future of Higher Education. This is not a simple subject, it’s a complicated subject. I’m glad we’re going to have some time to talk about it. I think a lot of people when they debate it or when they argue about it, talk past each other. And so I was thinking back to first principles and sort of the origins of affirmative action in this country. And as I did that, I was thinking back to my own education as a government major in college, which was the first time, and this is in the eighties, late eighties the first time I had to grapple sort of intellectually with the idea of affirmative action and what the rationales were. Philosophical, moral, ethical, legal, constitutional, et cetera. And I remember in a class I took that addressed the issue, a quite famous speech by President Lyndon Johnson that I always found moving and compelling and I hadn’t really looked at it and read it in a long time.

So I pulled it up and I want to set the stage for our discussion by quoting back from him. It was on September 24th, 1965, and Johnson had just delivered the passage of the Civil Rights Act of 1964. And while the Voting Rights Act of 65 was being debated, he gave the commencement address at Howard University and it was called to fulfill these rights. He talked about how important the Voting Rights Act was, and of course it was we would need a different episode, an additional episode to talk about what’s happened to that. And he talks about barriers to freedom that are tumbling down because of the voting rights bill. But then he said, and this leads us to our topic, but freedom is not enough. You do not wipe away the scars of centuries by saying, now you are free to go where you want and do as you desire and choose the leaders you please. He goes on to say, you do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say you are free to compete with all the others and still justly believe that you have been completely fair.

I find that fairly compelling today as I found it some years ago, and yet the debate has gotten very hot. So here’s my question finally. How did it come to be that affirmative action in higher education and in other institutions became popular enough to pass and to be accepted? Given how we’ve seen the debate devolve over time and then the Supreme Court striking it down in the Harvard case in the last couple of years, can you just take us back a little bit to the origin of it and how Americans reacted to it?

Justin Driver:

Wonderful. I really appreciate your rooting us in President Johnson’s by my light’s, magnificent address at Howard so many years ago where you can hear him saying that the justification for affirmative action is such is rooted in racial remediation and the injustices of chattel slavery in this country, and that it’s incumbent upon us to break up the legacy of Jim Crow. I want to note for your listeners some of the incredible achievements of affirmative action. So going back to the 1960s, the fall of 1960, the entering classes of Harvard, Yale, and Princeton included about 3000 students, and a grand total of 15 of those students were black, including Princeton with a grand total of one black person in the entering class. You flash forward a decade into the fall of 1970 and there are about 300 black people in the entering classes of those three major colleges.

So we went from in 1961 half of 1% of the entering class of Harvard, Yale, and Princeton being black to right around 10%. That is a transformation in American society, one that would have cascading consequences for all of society. That is to say there would go on to make major impacts in the world of academia, the legal profession, engineering the medical profession, on and on and on. Now you asked about thinking about affirmative action and how it came to be so hot. It seems to me that consistent with actually intention with President Johnson’s speech that he delivered at Howard, when the Supreme Court first handed down a decision involving affirmative action on the merits in 1978 in the Bakke decision, justice Powell, in effect disagreed with President Johnson. He said that the reason for affirmative action is not about slavery or its effects, but instead the only permissible justification for affirmative action has to do with diversity and that we all benefit from the classroom exchanges that flow from having a diverse class. And that is, I think Preet an effort to sort of tamp down some of the high volatile emotions that surround this issue. There are those who think that Justice Powell’s controlling opinion in Bakke was deeply misguided and that in effect, justice Powell can be understood to be twirling his mustache because by saying that diversity was the only justification for affirmative action, it undermined its legitimacy.

Preet Bharara:

So a lot there, and you’ve crystallized a couple of divergent issues that I think are really, really important. So both, both as a policy matter and as a legal and constitutional matter, there are two ways to think about a plausible justification for affirmative action. One is the one espoused and articulated eloquently by President Johnson sort of remediation, making things right, which are really words of in the language of justice correcting a wrong and that has I think, connection to people and that has resonance depending on who you are and depending on what group of people you think you’re trying to remedy the rights of. And then this other vague concept of diversity and whether or not that is a value, it is an important value which has come into disrepute among some people in the last number of years. But just before we go to that dichotomy for a moment, two other things about the Lyndon Johnson speech, just to indulge me, I hadn’t looked at this in a long time.

One is Johnson says, this is the next and more profound stage of the battle for civil rights. We seek not just freedom, but opportunity and that’s the language that a lot of people like to use on the right and the left. Then he says, we seek not just legal equity, but human ability, not just equality as a right and a theory, but equality as a fact and equality as a result. Is he talking about result of outcome or result of opportunity? Because those are two very different things. And I wonder if we’ve evolved in our thinking about what civil rights mean since that time.

Justin Driver:

It seems to me that Johnson was speaking at an inflection point in American society mid 1960s might be regarded as the high tide of liberalism in this country. When I hear him talking about equality as a result, that sounds like that’s driven by outcome to me. And perhaps President Johnson was thinking, if we really have genuine equality of opportunity, then the results will ultimately take care of themselves. I do think though that universities really did take it upon themselves beginning in the mid 1960s, right around Johnson’s address to discover the incredible talent that exists in this great nation of ours that was not being utilized. The old maxim holds, talent is everywhere, opportunity is not. And universities really set it upon themselves, not so much arguably to sort of help out black people, but to allow this great country of ours to draw on the incredible resources of talent. And black people had systematically been denied opportunities to be able to realize their full potential. And that generation and those couple of generations of people who made their way through leading universities, improved our nation for the better in their material achievements, but also in changing the notion of where black people belong in American society rather than systematically being assigned to the caboose, there is an idea that black people belong in the most rarefied segments of Amer society.

Preet Bharara:

Last point about the Johnson speech, here’s another quote. Men and women of all races are born with the same range of abilities, but ability is not just the product of birth ability is stretched or stunted by the family that you live with and the neighborhood you live in by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child, and finally the man. And the reason I cite that is for its eloquence, is it quaint for me to miss eloquence in the White House?

Justin Driver:

He had some wonderful speech writers of course, and it’s incredibly important because Johnson’s justification that you just read about opportunity and neighborhood is something that remains with us almost six decades later, right? Where these days there are some wonderful economists including Raj Chetty at Harvard and John Friedman at Brown who have sought to really quantify and dig down on this idea that Johnson was expressing. They have come up with something called the Opportunity Atlas, where they take census tracked data and look at the various challenges that confront neighborhoods including teen pregnancy, incarceration rates, and the various other incredible challenges that confront some of our fellow citizens. And so some universities are using the Opportunity Atlas as an effort to grapple with the legacy of the Supreme Court’s invalidation of affirmative action and an effort to bring students from all sorts of different backgrounds to campus.

Preet Bharara:

So these two different justifications, remediation of past wrong and the creation of diversity back when Lyndon Johnson was speaking in the sixties, which of those things probably in the public mind was more persuasive?

Justin Driver:

I suspect that most people would’ve thought racial remediation is the primary justification

Preet Bharara:

And why? Because slavery was only a century in the past. And how about today? If you could pick either,

Justin Driver:

It’s an interesting question. If you were to talk to most administrators, I think that they would hang their hat on diversity rather than on racial remediation. And I don’t think it’s only attributable to the passage of time, rather I think it’s attributable to the incredible influence that Justice Powell’s opinion in the Bachi decision had. So sometimes it’s tempting to think that the Supreme Court opinions only matter to lawyers and things of that nature. I don’t think that’s the case, at least in this particular instance. Administrators across higher education deeply imbibed this lesson offered by Justice Powell that the justification was diversity and part of the reason would have been that it’s not only black people who have confronted racial discrimination in this country. And so if you’re thinking only about racial remediation and tying it directly to slavery, that might shut out people who you might want to bring in. And it’s possible that diversity sands down some of these rough edges here and that that’s the reason that it has become ascendant.

Preet Bharara:

So there’s another aspect to all of this, unlike some things, if you believe in a universal right to healthcare or you believe in equal pay for equal work, any number of principles that are not yet enshrined or that are you believe that those should be true and guaranteed in perpetuity. This idea of affirmative action in part, I guess pragmatically in part, philosophically and in part politically was always meant to be temporary, right? While we kind of have fallen short of the goal, while slavery is still fairly fresh, while generational wealth has been undermined and made impossible because of these shackles of slavery and subjugation and discrimination and segregation and all of that, we’re doing this folks until we get everyone to the starting line unencumbered. And so I wonder what you think about a, what Johnson would’ve thought the period of time for a program of affirmative action in the schools and elsewhere would’ve been necessary, and B, if part of the problem politically for affirmative action policies is people who just got tired of it.

Justin Driver:

It’s a great question. The temporal question about affirmative action, you’re quite right. That has long hung over this issue. I can say with respect to the Supreme Court of the United States when they were considering Bakke in 1978, this very issue came up at conference in effect, how long do we need to stagger the starts to this race? One of the justices, justice Blackman said, well, we’re going to use affirmative action for about 10 years. He said, justice Thurgood Marshall who knew a little something about the struggle for racial equality said that it would take a century so wildly divergent claims and the temporal issue has remained with us. Let me tell you just a little bit more about how to drag the story a little bit forward. My old boss, justice O’Connor, wrote the court’s opinion in Gruder versus the University of Michigan Law School in 2003.

And again, the temporal issue came to the fore. At the very end of the opinion, she upholds affirmative action, but she says it’s been 25 years since we first upheld affirmative action in Bakke. We fully expect that in another 25 years affirmative action will no longer be necessary. This is a very unusual part of the opinion. Typically sunset provisions we see in the legislature rather than in the judiciary. But the Supreme Court of the United States actually in its most recent opinion, took up Justice O’Connor and they didn’t say, we are overruling gruder in the students for fair admissions versus Harvard case. They said, oh, we’re honoring Gruder because 2003 plus 25 years equals 2028. This was in the majority opinion and also in one of the concurrences. And they say, that works out perfectly because the next class of students who are going to be admitted to Harvard and the University of North Carolina and everywhere else are going to be part of the class of 2028. And so voila, we made it.

Preet Bharara:

If you were to ask the liberal justices Jackson, OMA and Kagan, going back to the temporal question that we started out with, affirmative action for diversity purposes or remediation or whatever the case may be is needed, what would they say about the timeframe?

Justin Driver:

It’s very interesting. I think that one can find some instruction here from Justice Jackson’s dissenting opinion where she sort of expands the frame of what we are considering beyond higher education and says we need to pay attention to these golf sized gaps that exist in the United States along racial lines with respect to health and wealth and everything in between. And so I suspect that Justice Jackson would say when these golf size gaps are closed in a meaningful way and maybe tipping her hat toward President Johnson’s Howard address, when we have equality of result, then it will be permissible to get rid of affirmative action. Or she might even say, when we have some reasonable approximation of equality of result, then and she would say, I suspect we’re not going to be there for a long time.

Preet Bharara:

I mean, there are people who will say on this temporal question, I’ve heard people say it, you don’t need affirmative action anymore. There’s no policy basis for supporting it. Look, Barack Obama got to Columbia, got to Harvard Law School, became president of the United States, reelected to the presidency, we fixed it, we’re good. What do you say to that?

Justin Driver:

One might even put a finer point on it than that one might say, forget Obama. Think about the Obama daughters children of two Harvard Law School graduates grown up with every opportunity,

Preet Bharara:

Right? So that’s actually a very interesting question. At one end of the spectrum, should there be race conscious thinking in the admission of the black daughters of the former president of the United States? What’s the answer, Justin?

Justin Driver:

Well, I’ll tell you what then candidate Obama said in 2008 where he said basically no, there should not be a bump for my kids who have been privileged in all sorts of different dimensions in comparison to the kid from Appalachia who may really be struggling and everything.

Preet Bharara:

Exactly. So Malia shouldn’t get in necessarily, but JD does.

Justin Driver:

Well, I think that’s too ever so slightly too crude way of putting it right. The question is of course about a bump. It doesn’t mean that there would be no black students at Harvard without the benefit of affirmative action. Justice Marshall, by the way, was asked this during the baki opinion about whether his son should qualify for a preference at uc Davis Medical School if he were an applicant. And Thurgood Marshall replied, damn right, they owe us. So now different points in time, also different positions. President Obama was trying to win the presidency. But I do want to answer your larger question about sort of privilege and whether this issue has run its course. Many people who attack affirmative action really say the Obama daughters and the other children of the black elite should not be getting a bump up. My own response to this is a few fold.

One would be, well admissions departments and college admissions. Alas is shot through with privilege along all sorts of different dimensions, including legacy admits, the donor class, the sailors and the fencers and the others who have been privileged. And so we shouldn’t be terribly surprised that the black elites are often the ones who are being admitted here. And I would also say, and this takes us back to where we began, if the strongest justification for affirmative action sounds in racial remediation, then last time I checked wealthy black people were black too. And so if that’s the justification, that should be fine. So it also raises interesting questions about who’s going to be in the best position to put a really strong foot forward at Harvard College or Harvard Law School. And I do think that there are some perversities that might emerge as a result of the Supreme Court’s decision in this way.

Preet Bharara:

This is a flaw in all public debate that anytime you have anything, whether it’s social security or food stamps or affirmative action or subsidized housing or any freaking thing you can think of, there are going to be examples of people who if you’ve put a laser on it, maybe that particular person is not the most justifiable benefactor beneficiary of that thing. But we do it all the time. We do it all the time. It doesn’t take away as an argument the central thrust of helping people for people who are listening on audio only not on our YouTube channel. The professor is nodding vigorously.

Justin Driver:

Indeed, you said it. And this is something that I try to instruct upon my law students in lawyers’ terms, there’s going to be over inclusivity and under inclusivity with all policies, every

Preet Bharara:

Policy ever

Justin Driver:

Concocted by anyone. That’s a fact, including driver’s license minimums. There are some 14 year olds who could really drive very well, but they are blocked. And how many Obama daughters are actually out there is the empirical question. And last time,

Preet Bharara:

I think two last time

Justin Driver:

I checked there were two. Yeah,

Preet Bharara:

According to the census,

Justin Driver:

These two in other words, doesn’t design an admissions policy with the Obama daughters in mind. So your point is quite well taken, hence my vigorous nodding.

Preet Bharara:

But it a little bit allows for bad faith debate on the point, right? People will say racism, what? Racism? LeBron James is rich. So we don’t have to spend a lot of time on that kind of bad faith argument. But the premise itself, is there a basis for it? Does it depend on the look, people are not a monolith and people who either have knowingly been beneficiaries of affirmative action or not probably have a range of reactions to how they’re being viewed and maybe they’re being viewed in some circumstances haven’t gotten the unfair leg up and in other circumstances is this is how we remediate and diversity is good, and a lot of this depends on how you end up doing your job. Ultimately, I think, and maybe that’s a naive thought, right? Whether you are an athlete who is admitted or a legacy who is admitted or a black student who was admitted or whatever the case may be. If you graduate from that elite university and then invent something that lots of people buy, doesn’t that stigma go away? And on the other hand, if you work at a place where you either do or do not do a good job, but other people are jealous of the fact that you got the job and maybe their brother or cousin didn’t, then there festers a sort of resentment. Does that make any sense? How do you think about those things?

Justin Driver:

Absolutely. Many people would say that the problem with affirmative action is that it subordinates black people and that for black professionals in particular, no matter how high you rise, there’s always a shadow. Did you make it there because you’re talented and because you have things to contribute or did you make it because somebody gave you a position in effect? And let me tell you a story that involves Justice Clarence Thomas, who has pushed this line with great force in his Supreme Court opinions

Preet Bharara:

After he got to the Supreme Court.

Justin Driver:

Yes. Now this from the perch of the Supreme Court, this involves his time before the Supreme Court when he’s working in the Reagan administration and he is the head of the EEOC at his investiture ceremony. Senator Strom Thurman is there, William Bradford Reynolds is there. Brad Reynolds, the head of civil rights during the Reagan administration, which very much anticipates President Trump’s civil rights division today and its commitments. Brad Reynolds insists on speaking and he says, I’m so delighted to be here today to honor Clarence Thomas because Clarence is the epitome of affirmative action done right. Thomas Flinches looks down at the ground and is visibly shaken. And truth be told, this is every black professional’s worst nightmare that when you are getting what should be your gold watch or at least your crowning achievement, you’re brought low by the specter of affirmative action. So I actually take this argument very seriously.

The second chapter of the book engages with my fellow liberals who say that affirmative action is akay because those programs don’t subordinate black people. And I think it’s a more complicated story for some of the writings that Justice Thomas has issued, but also my colleagues Steven Carter, a liberal who defends affirmative action says there is a subordinating component of this professor Randall Kennedy of Harvard, a supporter of affirmative action again says there’s a subordinating component. There’s one last thing I feel compelled to say about this and it involves Justice Thomas about subordination and assumptions about black people and intellectual competency, one of Thomas’s central lines of attack on affirmative action. He says that in the context of the University of Michigan Law School, he says one of the real harms of affirmative action, there are some black people who would be admitted to the University of Michigan Law School even in the absence of racial preferences, but because of the specter of affirmative action, he says, this is a quotation, all are tarred as undeserving.

The assumption is that if you’re black and you’re there, you didn’t make it. I think that’s exactly wrong and that we should invert the default rule in effect and that we should assume that people belong there until they prove otherwise. I’m not a fanatic. There are some people who prove themselves that they’re not really following the material and everything, but I would say that black people should be given the benefit of the doubt and that same benefit of the doubt should apply to the legacy students and the donor class and the fencers and the sailors alike that they should be presumed to belong there until demonstrated otherwise.

Preet Bharara:

Yeah, I mean it seems to me that the reaction to particular people who are admitted to a program or a school or whatever offense says a lot more about the critic than the person who was admitted, right?

Justin Driver:

I agree wholeheartedly. And it’s really important to appreciate that while the Supreme Court’s decision is obviously a new rule for the nation, states have gotten rid of affirmative action in the past and it has not brought about the post-racial nirvana that many conservatives would tell you that we have now entered. That is to say decades after Berkeley and California voters got rid of affirmative action, black students at Berkeley were so small in number that they were presumed not to be students at all. So students talk about walking around Berkeley’s beautiful campus, students are handing out leaflets to all students who are passing by. The black students are assumed not to be students at all. And black students have said again, decades after the end of affirmative action and Berkeley that we are not invited into the study groups. They don’t think that we’re smart enough. So the idea Edward Bloom, who started the students for fair admissions entity has said, well, yeah, it’s true. MIT went from 15% black to 5% black, but we should be happy about that because that 5% black student population can have their heads held high that they made it there through the front door rather than the back door. And I’m sorry to say that I fear that the stigma of dark skin is going to be much more durable than that account suggests

Preet Bharara:

Isn’t part of the problem with all of this, that inherent in antithetical feeling towards affirmative action is a built-in non-evidence based belief or faith that otherwise we have a perfectly functioning meritocratic system whereby if you have merit, you advance whether you’re from a privileged family or a poor family or a black family or an immigrant family or whatever the case may be. And this horrible sin of affirmative action upsets what is otherwise a perfect balance and system of having people rise up because they’re the best at what they do, fair or not?

Justin Driver:

I completely agree that the notion that our elite universities were abiding by meritocratic ideals with the sole exception of affirmative action is a deep misapprehension about what is happening. Harvard College, your alma mater, about a decade ago, maybe a little bit more, 5% of the entering class at Harvard College was drawn from seven high schools in the country, including Trinity, Andover, Exeter. There are thousands upon thousands of colleges. And so there are oceans of opportunity that go through some small number of high schools and a trickle of opportunity that goes through other high schools. I also want to say that many of the students who were some of the first classes, members of classes with significant numbers of black students at Yale College made tremendous contributions to American society. The Yale class of 69, just when affirmative action is really getting going, included people like Henry Lewis Gates Jr. Kurt Sch Smoke, black mayor of Baltimore, leader in higher education, Barbara Jordan Lee, Linda Darling Hammond, education Scholar of Great Imports. She wrote a wonderful book called Other People’s Children, really Significant People. Someone won the Pulitzer Prize in this class. So if you were to look at the black students in the Yale class of 69, the idea that Merit was sacrificed with that remarkable cohort, I find that to be deeply wrongheaded.

Preet Bharara:

I will be right back with Justin Driver after this. So there’s another critique that you talk about at some length, which I think it’s called Mismatch, the Mismatch critique. And I guess it’s adjacent to the critique and it’s not about just people’s perceptions, it’s about actual mismatch according to these people of the qualifications and capabilities of somebody who gets admitted under an affirmative action program who’s not up to snuff and can’t do the work. And that creates feelings of defeatism and frustration on the part of that student as well. And I guess the theory goes, you’re not doing them any favors if you bring them into an environment where they’re not capable of performing well and that’s bad for everybody. I have an immediate reaction to that, but tell me what you think and what you write about in the book.

Justin Driver:

Yeah, you’re exactly right. In describing mismatch, the claim would be, and this is associated most primarily these days with Professor Richard Sander of UCLA that you think that you are helping these black students and brown students who are admitted, in fact, you are harming these students exactly as you say, Preet. Students who would have really flourished at the 15th best say law school in the country are instead pulled up, sucked up into an academic environment for which they are ill-prepared. I am completely unconvinced

Preet Bharara:

By that one,

Justin Driver:

By this argument, and there has been important empirical data work that has done by Ian Ayres, my colleague here at Yale, Dan Ho out at Stanford, and others have worked on this and said the empirical justification doesn’t work. And part of it is actually attributable to the sadly incredible elitism that suffuses the law school world. That is to say that there are certain excellent law firms in this country that would not recruit at the 15th best law school in the country. And so one might go so far as to say that even assuming that you are number 550 at Harvard Law School, but make it last in your graduating class, that that might be better than being, I am sorry to say the valedictorian of the 15th West Law School by my lights. It shouldn’t be that way as a normative matter. It is that way. As a descriptive matter, I do think though that this mismatch idea is an important one, partly because conservatives have hit it so hard. But again, I think that the SFFA decision might make these issues worse rather than better not focusing on the academic piece, but instead on the social piece. Because under the new admissions regime, it’s going to be easier for a college to admit the valedictorian of an underperforming urban high school than it will be to admit that a minus student from say Andover.

Preet Bharara:

Is that good? What do you think of that?

Justin Driver:

It’s an interesting question. I can see cases going either way, but I would say that Justice Thomas has written in both public and said in private circumstances that that’s not a good idea for the valedictorian of the underperforming school because of the social adjustment that if you’re not sure who you are, he told a student from Ballou High School in Washington DC who was headed off to Brown University that you can get chewed up and spit out and it will just be an overwhelming environment. So in that part of the book, I’m trying to take conservative argumentation seriously, and I say that under the new world that this mismatch idea is going to be intensified.

Preet Bharara:

I want to come around to the diversity argument and what are the principles that undergird it, what’s the data, et cetera. But I want to ask the question this way. This is what I understand to be true. I have three kids who’ve all gone through the college process in recent years and they go to a top public school in Westchester County or went and they’ve had every privilege you can imagine. They also work their ass off and are profoundly smart and great students and in connection with their application process and their friends applications, application processes, a lot of which involved applying to elite universities that you and I are talking about and that are the subject of your book. Here’s what I’ve been told, particularly when the question is raised, why did this particular a plus student who had an almost perfect score in their SATs and played the tuba in the band and all, every credential you could imagine they didn’t get to Harvard, Yale, Stanford, Princeton, Dartmouth, wherever, and as if that’s going to ruin their lives and you have to spend time with everyone saying you will be fine.

What I’ve been told is any one of these universities could fill its entire population, its entire student body alma mater, 1600 or so Harvard. You could fill all 1600 spots with 4.0 grade point average students with perfect SAT scores and some great leadership position and a wonderful essay all 1600. And then you would have 8,000 more people who you could have filled the 1600 with a different 8,000 people. So multiple classes over in any given year you could do that. And so if that is, so how are you supposed to decide other than a lottery or other than trying to have some diversity of perspective, background, maybe ideology, financial wherewithal, which of those 10,000 people you put into your 1600 person class, how does that figure into all of this?

Justin Driver:

It’s a really important point. There has to be an enormous amount of discretion that is afforded admissions officers in these processes. Exactly as you say, they have students with Sky High GPAs and perfect SAT scores coming out of their ears.

Preet Bharara:

You could have 1600 so you could have a school of everyone’s a valedictorian. Does anybody want to go to that school?

Justin Driver:

That’s a very interesting question. They are attempting to form a college class in addition to the various dimensions that you mentioned. Surely geography is something that they are thinking about and that’s long been a trend. These universities love to say, we have people from all 50 states and that might suggest that it’s a wee bit easier to get in to Harvard College if you’re applying from the great state of Mississippi than if you’re applying from the great state of Massachusetts given the students that you’re drawing upon. Of course, if conservative jurist were listening to us, they would say, well, the constitution and the equal protection clause is understood to say a little something special about race in a way that it doesn’t say something about being from Mississippi or these other things or even having wealthy parents. And so they might say, I think that admitting the children of the donor class is an abomination and that legacies should go away. But that is a policy matter, not a constitutional matter.

Preet Bharara:

What are we even talking about here when we’re talking about higher education? Forget about the workplace and forget about other institutions. But in higher education here we sit pret and Justin with our big fancy Ivy League degrees talking about who does or does not get into a handful of elite universities. Are we missing the point? What is so important about getting into Princeton or not? And is this a little bit of a waste of time among idle desk sitting elites?

Justin Driver:

I appreciate the point. From a normative perspective, it should not matter whether you were a lights out student when you were 16 years old in effect for shaping your life. Chances from a descriptive matter though, who gets admitted to a relatively small number of universities plays an inordinate role in who gets to walk the corridors of power in American society. And so that’s one of the reasons that I wrote this book because I was concerned that we would see plummeting black enrollment rates at many of our finest universities. And that has exactly that’s been is exactly what’s happened. So I fear that we are in the midst of seeing a lost generation of black students at these fancy schools. Amherst College, for example, went from 11% black in its first year class to 3% black Princeton went down, its most recent numbers, 5% black one could go on and on and on in many other Ivy League colleges.

And I do feel compelled to say that the Trump administration has been attacking higher education as you well know, and saying that these are out of touch elites that are sort of harming society. And the Trump administration often cloaks itself in the close of populism, right where they say we’re sticking up for Joe Sixpack and what Nixon would’ve called the forgotten Americans the way that they have been resting money away from universities has introduced an era of financial peril. And I fear that the students who they say they’re speaking up on behalf of are not going to be admitted to these universities. I fear, I fear that universities, even those who say that they’re need blind are going to be because cash is so short right now, they’re going to be thinking about who can pay full freight and who cannot. And that’s going to make it more difficult for the student from Appalachia to be able to be admitted.

Preet Bharara:

May I ask a mildly provocative question then? Is there an argument that one parallel project that should be undertaken is to reduce the influence and power of these fuel elite universities and take it out of the equation? This point that you made earlier, which is whether you like it or not, admission and matriculation from these universities allows you to be more likely to walk the halls of power. And that reducing the power and influence of those universities and people who attend those universities is a good enterprise. And by the way, in that vein, lots of conservatives, including Donald Trump and the MAGA folks, seem to be well on their way on that project to address those universities down a little bit maybe by means that we don’t like and that we oppose and that should be opposed. Conservatives are saying they don’t want to send their kids to Harvard, Yale, Princeton in this regard, at least in this context. Is that a good thing?

Justin Driver:

Well, one would need to pull apart a couple of different things that have mashed mash together. One can say, of course, people who attend colleges that are outside of the top, top schools should have every opportunity to walk the corridors of power. And I would co-sign that project. Yeah,

Preet Bharara:

We have more.

Justin Driver:

I however, would completely distance myself from the idea that anything that the Trump administration is doing to higher education is advantage provocative. That was provocative. That’s the provocative part. But it’s really important to underscore that universities and their science research and many other areas are really suffering grave harm, American higher education, it’s often said is the envy of the world. That’s true. The uncertainty surrounding international students has been a really crave thing. I would also say Preet, that there are lots of parallel projects that one might want to undertake with respect to affirmative action, including having much earlier interventions with respect to the quality of our urban schools and our public education system. But I don’t see opponents of affirmative action rushing headlong to say we really need to rethink the way that we fund schools and society. And so I see simply saying in effect, we need fewer black students on elite college campuses and that’s what the Trump administration is doing. We shouldn’t mince words about this. They have secured agreements from Brown University and from Columbia University to say, we want to see your data broken down by race in terms of admitted and rejected applicants. And they’re going to use that data in order to say anybody, any university with a black percentage north of this is cheating. And so it’s an effort to say there are too many black and brown students on elite college campuses.

Preet Bharara:

Yeah. Well look, the problem with the Trump administration on all of this is it’s not good faith and part of the enterprise in my view, and it sounds like yours also is the intentional stoking of racial animus and frustration and resentment and pitting people against each other as opposed to what I think you have engaged in your book. And what we’re trying to do in this conversation, which is to have a fair-minded critical, rigorous discussion of a problem of inequality and lack of opportunity and prior subjugation of an entire class of people and what to do about it as opposed to taking a very easy sloganeering approach and say, black people are taking your jobs and in different contexts, by the way, immigrants are taking your jobs or the elites are taking the jobs of elite liberals are taking the jobs of conservative professors, et cetera, et cetera, et cetera.

So that’s all true. Now on diversity, it seems to me as we talk about diversity and the value of diversity, that all the critics, conservatives and otherwise have to contend with a gigantic problem with their argument. That is to be found in the Harvard opinion that we’ve been talking about a lot in this conversation. And that is when it comes to diversity being an important value, the court marked out a very, very substantial, incredibly important exception for the peace, stability, and security of the United States of America back then, Qualy known as the Department of Defense, now known alternatively also as the Department of War. Then when it comes to hiring the people who are going to put their lives in the line, maybe die in the line of battle to protect your freedoms and my freedoms and life as we know it in this country, well then diversity is really important. Can you address that?

Justin Driver:

Yes. Chief Justice Roberts and footnote four of his opinion for the court gives a waiver in effect to Annapolis and West Point and the other military academies in this nation. And I think that this is a carve out that is for understandable reasons. And the Gruder decision from 2003, there was an important brief that was filed that Justice O’Connor’s opinion cited on behalf of retired military generals who said, if we have an overwhelmingly white officer corps leading a group of enlisted soldiers who are largely black and brown, this is going to have calamitous consequences for our national security. And we tried this in Vietnam and it didn’t have a pretty ending. And so I understand the Supreme Court offering this carve out, but I really do believe that it has the potential to balkanize American society and don’t take it from me. There are people who are graduates of the military academies, black graduates who have said, you mean to tell me that in effect, it’s okay as Justice Jackson put it to be in the bunker, but I can’t be in the boardroom. And that one graduate of a military academy said it’s okay for me to be cannon fodder, but I cannot walk in effect the corridors of the legal world or the other professional world. So

Preet Bharara:

That seems like a checkmate question.

Justin Driver:

You

Preet Bharara:

Don’t get too many of those. What’s the response of the opposition on that point?

Justin Driver:

They would say the Supreme Court did not go far enough.

Preet Bharara:

So it’s an error. So Pete, he would say that’s even John Roberts and the various generals who were overweight, he would say Were off base and woke on this.

Justin Driver:

That’s right. They are insufficiently right winging on these particular questions. And I have to say that the military academies, even though they got that carve out, have now sort of washed their hands of racial diversity and indeed have been going through the library and sort of throwing books out of there that seem to touch on diversity. So there’s a real era of uncertainty and anxiety that surrounds this issue. One last thing I feel compelled to say on Chief Justice Roberts, and you are thinking about the Trump administration as well, and of course the Roberts Court as a whole in SFFA versus Harvard Chief Justice Roberts says something like eliminating racial discrimination means eliminating all of it. This sort of soaring rhetoric. He regards affirmative action as a form of racial discrimination. But here we are speaking in the relatively recent aftermath of the Supreme Court’s decision in Vasquez per Domo, the case out of Southern California involving ice. And so the Supreme Court says, yeah, eliminating racial discrimination means eliminating all of it, except if you happen to appear Mexican and be hanging out near a Home Depot, then it’s okay for you to be in effect thrown up against the wall and arrested.

Preet Bharara:

Might you address people who are listening and answer the question, isn’t it valid if it’s not based on the kind of racial antagonism that I think characterizes a lot of what the Trump folks are doing that a reasonable and intelligent person who wants the best for the country, wants the best for the workplace, who wants the best for the military, who believes in equality, who believes in justice to aspire to colorblindness and to have legitimate and good faith and acceptable in the realm of debate opposition to affirmative action?

Justin Driver:

It’s an interesting question. The truth is nobody believes in absolute colorblindness. Sometimes people speak in that register, but they don’t really believe it. The example that springs to mind is imagine a police force that is looking to infiltrate a racially identifiable gang and let’s call ’em the Crips. And the person who is the most qualified, who has the most relevant experience going undercover is Officer Finn Johansson. And they say, good news, officer Johanson, you’re going to go infiltrate the Crips. That would be insane. And so of course it’s

Preet Bharara:

Or Preet Bharara,

Justin Driver:

Of course it’s permissible to take account of race in that context. So then it becomes apparent that at least in current American society you can take account of race. The question is when you can take account of race, not whether you can take account of race.

Preet Bharara:

So let’s talk about higher education for a second. Okay. Would you grant that it is not crazy and racist that a person who bears no animus, let’s hypothesize such a person who bears no animus towards racial minorities, black people or any others, but who either using the Appalachia example you gave or something else had a lot of hardship and a lot of poverty and went to a not very good school, but is really smart and really wants to achieve and believes that they have something to offer at the highest level of performance in America and is right at the cusp of getting into or not getting into one of these elite universities that may offer an opportunity to walk in the corridors of power that that should be taken into account maybe in the same way and depending on the circumstances more so than Malia Obama? That’s fair, is it not?

Justin Driver:

Absolutely. So I will add some people speak about class not race, that this is the way that we should move forward. And I of course am sympathetic to this, but it would be mistaken if we believed that class not race would automatically mean that we would have lots of black and brown students on campus. So let me give you one very concrete example. Princeton University recently announced its incoming demographics for the class of 2029, and I am proud of them. I really do salute them for this, have more students from modest backgrounds than they’ve ever had before, more Pell Grant recipients, but I’m also sorry to report that they have fewer black students than they have had in decades as a percentage of the class. So I actually in the book do identify some solutions that remain available on the table for universities who are interested in enrolling racially diverse classes and say that we should absolutely pay attention to people from low opportunity areas like Appalachia and like Anacostia. But we should further say that 10% of say the Princeton class should come from these low opportunity areas, but 80% of those students should come from urban areas and 20% should come from rural areas. I haven’t merely pulled those numbers out of my hat. The census tells me that 80% of Americans live in urban areas, 20% live in rural areas. And so of course we want students from talented rural areas and urban areas on our college campuses. I am 100% behind that.

Preet Bharara:

Can I give another example, concrete example. It’s my understanding that the University of California Davis Medical School in a state that for a long time, as you mentioned, has not allowed race conscious admissions practices has a methodology that it is put together to try to address hardship. They have a hardship scale, income of your parents, what kind of household you came from, all sorts of factors that they tout as not only being equitable and bringing other people into the fold who might not otherwise get in because they’re really looking at all different kinds of hardship, but also as actually resulted in significant diversity as a racial matter as well. Now, the University of California, Davis Medical School is not the number one medical school in the country, but I looked it up. It’s quite good. It’s in the top few in primary care. Getting into any medical school in this country, as I know from a lot of friends and others is a really, really difficult thing and an achievement as an extraordinary whatever medical school you get into, I think there are 157 of them in the United States. Is that a model? Is that a viable model? Is that the model? Is that problematic model? How do you view that?

Justin Driver:

It is an admirable model. There are talented people from all different walks of life in this country, and I think it’s incumbent upon us to harness the potential that those individuals have. President Biden, in the immediate aftermath of the Supreme Court’s decision two years ago came right out and said, we need to move from a diversity model to an adversity model. And that’s exactly what you’re describing in the medical school’s proposition. And I hope that universities will adopt a whole host of different efforts to address the Supreme Court’s cataclysmic decision. It’s a misguided decision in my estimation, but it also does not sweep nearly as far as the Trump administration and others are insisting that it swept

Preet Bharara:

Dumb question. Does that take us full circle in a way is an adversity model going back to remediation and putting in the backseat diversity so that the Bakke decision and Powell’s argument ultimately at the end of the day and as we sit here now is not the best one. I’ll

Justin Driver:

Go you one further please and say yes, amen. But that the Supreme Court’s decision in SF FFA versus Harvard also opens the door to preferences for the descendants of the enslaved. So the Supreme Court’s decision says you can’t consider race quo race, race for the sake of race. But yes, there are lots of black people in the United States today who could check the preference for the descendants of the enslaved. But there are lots of black people in the United States today who could not be able to check that box who are relatively recent immigrants to the country. That means that there are black people on either side of the divide and therefore that’s not race quo race. And actually originalism counterintuitively opens the door to this sort of argumentation because if you’re an originalist, you think about the original public meaning of the 14th Amendment and what do you do with the Freedmen’s Bureau if you’re Justice Thomas or four of his colleagues? And Justice Thomas says, well, wait a minute. The Freedman’s Bureau was not as you and I would assume about helping black people. That was about the status of having been an enslaved person where upon during rural argument when this arose, justice Kavanaugh said, but that means that preferences for the descendants of the enslaved would also not be a race-based category. So you’re exactly right. Justice Powell slammed the door shut to history, but in effect, the Harvard decision has opened the door to history once again.

Preet Bharara:

Professor, you’ve been very generous with your time. Congratulations again on the book. It’s a really fair, deep and rigorous analysis of the issue which is relevant to all people, wherever you come from and whatever you look like. It’s called The Fall of Affirmative Action Race, the Supreme Court and the Future of Higher Education by Justin Driver. Justin, thank you so much.

Justin Driver:

Thank you, Preet. I really enjoyed the conversation.

Preet Bharara:

My conversation with Justin Driver continues for members of the Cafe Insider Community. In the bonus for Insiders, driver shares a story about his father and the sacrifices that shaped his views on education.

Justin Driver:

I wrote about my father leaving the house late one night to sleep outside of a junior high school in Washington DC

Preet Bharara:

To try out the membership head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, I’ll answer your questions about a court ruling on deploying the National Guard to Portland. Now let’s get to your questions. This question comes in an email from Lily. Hi Preet. I’m a mom in Portland with two kids and the judges’ rulings here reminded me of parenting. When I tell my kids they can’t play with the iPad, they immediately try to grab my phone. When the judge told the Trump administration they couldn’t federalize the Oregon National Guard, the administration immediately tried to send in another state’s guard. Is there a judicial equivalent of giving a full grounding? Now, Lily, that’s a great question. I don’t think there’s quite the same thing as a grounding, but I do think a lot of parents can maybe relate to US District Court. Judge Karin Immergut in this situation, just as a reminder, here’s some background.

In late September, president Trump posted on social media that he was directing Pete Hegseth, the Secretary of Defense, sorry, secretary of War, to send troops to protect what he called war ravaged Portland from Antifa and other domestic terrorists. This was presumably to protect an ice facility that was the location of some protests. So the next day, secretary Hegseth ordered the federalization and deployment of 200 members of the Oregon National Guard. That same day, the state of Oregon and the city of Portland filed a lawsuit to stop it. They had not blessed the deployment as has been customary in almost all past deployments in our nation’s history. A week later, on Saturday October 4th, judge Immergut granted a temporary restraining order, temporary being the operative word, blocking the federalization of those Oregon Guard members. In her ruling, she noted that the president’s claims about conditions in the city were simply untethered to the facts and that the protests at the ice facility are not significantly violent or disruptive.

The judge based that ruling on her interpretation of a particular statute, title 10, United States Code Section 12 4 0 6, which requires for the purposes of bringing out the National Guard to Federal Service, a rebellion or danger of a rebellion against the authority of the government of the United States. And there are various other provisions as well, and she found those conditions were not met, but her ruling is temporary and preliminary, pending the admission of further evidence and further proceedings in the case. But the story didn’t end there On Sunday, October 5th, the Pentagon announced it would instead send guard units from other states into Oregon. I don’t think you have to be a lawyer or have a law degree to guess that that was maybe too cute by half. Judge Immergut remarked in court that it seems to me that based on the conduct of the defendants and now seeking National Guard from Texas to go to Oregon again, I see those as in direct contravention of the order that was issued yesterday.

And so unsurprisingly, the judge issued a second emergency order, this one blocking the relocation, federalization, or deployment of guard troops from any other state. You probably thought that didn’t have to be said, just like in your example of the iPad and the iPhone. Now, I will say in my view, and I think in the view of many, many people, the judge’s ruling was unremarkable. You can disagree with it, you can criticize it. You can say she could have ruled the other way, but it’s fairly unremarkable without doubt. Her ruling is less remarkable than the President’s calling up of National Guard outfits in state after state after state without consultation with or the consent of those jurisdictions, but Trump’s loyalists and supporters don’t see it that way. And that leads me to the next question. That question comes in an email from Jamie who writes, Hey Preet, did you see Steven Miller’s post on X about the Oregon judge’s ruling?

He sounded a little worked up. Does he have any legal ground for all that outrage or is this just political theater? I’m afraid it’s much worse than political theater. So Trump advisor, Steven Miller, as you mentioned recently took to X, formerly known as Twitter, to label that federal judge’s ruling a legal insurrection. The ruling itself a legal insurrection. What the hell even is that? It’s a self cancelling oxymoron as absurd as saying nonviolent war or lawful terrorism. By definition, an insurrection is a violent uprising against authority. Legal process on the other hand, is the authority of law and action. You can’t have a legal insurrection any more than you can have a peaceful war. The phrase collapses under its own weight. It’s nonsense and dangerous nonsense at that. It’s a rebellion against logic and an insult to the rule of law, all in two words, but it fits a pattern.

It calls to mind the similar hysterical hyperbole of Senator Mike Lee not too long ago when he didn’t like the preliminary ruling of a judge in the Southern District of New York. It’s a judicial coup. He proclaimed what to educated but ignorant MAGA men. Even a mundane constitutional process is treachery. Mere disagreement is an insurrection or a coup. Everything is an attempted overthrow of the government, except of course, actual violence on January 6th. Now, there is a way to respond to a court ruling you disagree with. It’s called an appeal. Indeed, the Justice Department wasted no time in appealing judge Immergut’s ruling to the Ninth Circuit court of appeals. That’s how it’s done. That appeal is the lawful orderly path. You make your case to a higher court and let the rule of law play out. What you don’t do is her epithets like insurrection at a judge for doing her job. Yet Miller is jumping ahead of the game, implying rebellion and maligning the judge instead of respecting the process. It’s as if in his view, the very act of checks and balances is an affront to authority.

I wonder if there’s a word for that. Disagreement by a judge isn’t sedition. It’s a normal part of our legal system. It would be like arguing that a tackle in football is a criminal assault. No, that’s how the game is played. There’s a rich irony here. The judge under attack us district Judge Karin Immergut, was appointed by none other than President Donald Trump in 2019. That’s right. The very administration now crying foul actually put her on the bench. Judge Immergut Republican isn’t some anti-Trump partisan, and she ruled based on her interpretation of the law and the evidence, which she knows something about having been a US attorney appointed by another Republican president George W. Bush. Now, Miller’s rhetoric isn’t just moronic, it’s dangerous. Tossing around words like insurrection and coup to malign lawful court decisions has a distinctly authoritarian echo. It’s the kind of language tyrants used to delegitimize any challenge to their power to claim emergency powers in the absence of any emergency. As Gary Kaspar have recently said, everything will be called an emergency until total control is established. Once that happens, it doesn’t matter what you call it anymore.

The message is chilling. In Miller’s view, if you don’t bow to the executive’s will, you’re an enemy of the state, even if you’re a coequal branch of government. We’ve seen this kind of demonization of judges in other countries, and it never ends well in America. Judges must be free to rule without being branded traitors. There’s always that quaint other option appeal. Finally, let’s talk about projection and hypocrisy. Steven Miller loves to lecture that inflammatory rhetoric can incite violence, and in that narrow point, he’s not wrong yet. There he is routinely tossing lit matches of his own. Miller Blithely bss his way through each day’s propaganda cycle. This is a man who literally, while decrying liberals use of the fascism label himself, has labeled his opponents fascists saying, we have descended into third world fascist tyranny and urging voters to vote out the fascist Democrats. He’s painted protestors and even judges as part of a left-wing terrorist network in his fevered narratives.

It’s the textbook double standard of a demagogue. As commentator David French observed Miller quote, constantly deploys deranged rhetoric even as he claims the left incites violence with its own language. If Miller truly believes that words can lead to violence, then he knows the peril of his own words, but he doesn’t care. In America, the law is the light that guides us. Disagreement is not rebellion, and the judge’s ruling is not an act of war. Legal insurrection is a null phrase, a cynical soundbite. The real and gathering threat to our republic isn’t a judge doing her duty, it’s the demagogues who would demonize her for it.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Justin Driver. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @PreetBharara with the hashtag #AskPreet. You can also now reach me on BlueSky, or you can call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández and the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Barara. As always, stay tuned.