 Hi my name is Deshaun Carr and I'm a policy analyst on the higher education team here at New America. Two cases currently sit with SCOTUS student for fair admissions versus Harvard College and students for fair admissions versus the University of North Carolina which could likely ban colleges and universities from considering race as a factor in their admissions process. If SCOTUS decides to overturn affirmative action we can expect to see some damaging and revealing effects throughout the higher education system let alone other institutions. Here at New America we acknowledge that we are not experts on affirmative action however we are very dedicated to making sure higher education is equitable and accountable fighting for inclusion rather than exclusion so that everyone can obtain an affordable high quality education. Therefore we are very committed to using our platform to uplift those with deep expertise and knowledge to raise awareness and spark cohesive dialogue on creating future policies to ensure that higher education institutions are a guiding light in embracing diversity, equity and inclusion. For those who will be tuning in I would like to welcome associate professor at Boston University Dr. Jonathan Feingold and again New America and I we really appreciate you for taking the time to speak with us on this topical issue or what some would say is the big elephant weighing over our heads in higher education right now from an action. So just want to kick off our conversation just to start by learning more about you and your work and what interested you working in this particular policy legal space. Thanks to Sean thanks you so much for having me for this really critical conversation. So as you mentioned I'm an associate professor of law at Boston University School of Law. I teach classes in property law, education law and a few seminars on critical race theory and I've always been interested in race and racism not just as a moral prerogative but really also as an intellectual endeavor and one of the basic questions that a lot of my scholarship asks is why have laws that prohibit racial discrimination failed to produce meaningful substantive racial equality in this country? And for you know probably obvious reasons that's one reason why I'm laser focused on the admissions cases implicating Harvard and UNC right now. Yeah thank you for sharing and honestly this is a great segue because like you've been in this field for a while and probably following a lot of things that's going around around affirmative action but this is I mean honestly this is not the first time a legal challenge to race conscious emissions has come up and it probably won't be the last we hear of it but just thinking back to you know previous affirmative action cases and I'm thinking about the Fisher versus Texas case. Are there any differences between the pending cases of what's going on right now and do you think the higher education policy arena has changed since the last affirmative action was kind of on the chopping block? So really good question and I will respond directly but first a little bit indirectly just by offering a little bit more framing because you mentioned that this is not the first challenge targeting affirmative action to come before the Supreme Court and certainly that's true but it's just important to recognize that since affirmative action programs first came on the scene and you can see them really become more prevalent in the 1960s after major civil rights legislation was passed to the federal level they've always been under attack. Affirmative action really isn't much different than your sort of a modest civil rights remedy and it's just important to recognize that for the past 50 years since the Civil Rights Act of 1964 passed affirmative action has always been under attack in different sorts of ways and so it's nothing new and if anything just the continuation of a half centuries long front against basic civil rights remedies and as you mentioned the last time a race conscious admissions case reached the Supreme Court was in 2016 in Fisher v. Texas. In that case the Supreme Court reaffirmed Grigory Bollinger which was then an existing precedent that held that a university may consider a student's race so long as that's part of a holistic admissions process that is designed to promote student body diversity. So the question is well what has changed between 2016 and 2023? Now I would say there are two big differences. The first is the court. If you had the same Supreme Court today that you had in 2016 neither of these cases would be before the Supreme Court. Why not? Because Harvard and UNC are both doing precisely what the Supreme Court in 2016 and the Supreme Court in 2003 said universities may do if they want to take race into account in order to promote student body diversity. But what's different is that you now have a super majority of conservative justices who are who are hostile generally to civil rights remedies including affirmative action and you know we could have a different conversation about why that is but that is a really key difference because ultimately how cases are decided on the Supreme Court depends on who is in control of the court. So that's one difference the other difference is the narrative historically affirmative action challenges have positioned white applicants as the ostensible victim of affirmative action. After Ed Bloom who is one of the individuals that financed the Fisher litigation as involved in the SFFA litigation after he lost in Fisher he announced that he needed to find Asian American plaintiffs in order to continue his fight against affirmative action. So the question is why? Why would Ed Bloom pivot from white plaintiffs to Asian American plaintiffs? And there's a few reasons. One is that it is undeniable and we should not try to skirt the fact that Asian Americans have suffered a legacy of racism in this country. But what that means is that if Ed Bloom if anti-civil rights advocates can actually make Asian Americans the ostensible face of the litigation that becomes a more sympathetic plaintiff and it enables you to couch what really is an anti-equality campaign in the language or the rhetoric of civil rights. It also gives you a way to discredit a civil rights remedy like affirmative action that you can't do if your frame is that affirmative action is somehow pitting students of color against white students who we know enjoy different sorts of racial advantages. And we can have a long conversation about why the that narrative is problematic in front in different ways but that's another difference. Ed Bloom strategically is trying to make Asian Americans the ostensible face of the anti-firmive action campaign. And then if you're thinking about policy changes in the arena of sort of higher education generally I think there's two things that I'll just sort of name for right now. The first is that you've really seen a broader coalescence around what I think you can generally refer to as an anti-racist ethos particularly coming out of the summer of 2020 when there was this broad societal recognition that we have failed to reckon with our own legacy of racism in the United States. Many institutions realized that if they wanted to just get closer to neutrality they had to proactively affirmatively engage in anti-racist projects. But that has been met with a new wave of resistance and I think we're going to have an opportunity to talk more about it but sort of that rise of leaning into anti-racism has been met with this new anti-anti-racist front which is trying to limit just the modest efforts that institutions are trying to take now to create more accessible inclusive inequitable spaces. Well you made a lot of wonderful and interesting points on that question and you know the thing you said like you know they're using Asian-Americans and Asians as a way to you know change the narrative because they know last time that using you know white students as the you know as a defendant or as the you know plaintiff here and it's not working so they it's like they're pitting races against races like you know and it's and it's not it's not okay. But yeah and also about your narrative too about how you know the court has changed I think this kind of leads into my next question about what's also coming out of Florida and Texas right now so going back to Texas we noticing that many interesting and I guess the killer issues are coming out of these states particularly a lot of you know conservative leaning states about you know getting rid of DEI efforts and initiatives. Do you think their actions are possibly a precursor to what we might see unfold nationwide if affirmative action is overturned and what is that stake for higher education institutions and their current you know DEI efforts what yeah what is that stake here? So really really good question and let me actually back up by just spending at least one more moment asking the question about well are Asian-Americans suffering discrimination at places like Harvard and one thing that's really really interesting about the evidence the actual facts that came out of the Harvard case is that there is some evidence that Asian-Americans are confronting some sort of racial harm in the admissions process but what's most interesting is that if you look at the plaintiff's own expert their own theory of the case it turns out that affirmative action is not the source of anti-Asian bias but the sources include considerations like legacy preferences it turns out that over 40 percent of Harvard's white student body are the beneficiaries of legacy and other types of bonuses that have nothing to do with anything we would ever think of as in their individual merit and the plaintiff's own expert suggests that as much as 33 percent of Harvard's admitted white student body would not have been admitted but for that legacy bonus and so I think it is important for us to ask well are like different groups confronting some sort of racial harm or some sort of racial barrier and answers they might be what the sort of ironic thing is affirmative action is actually a tool to reduce or mitigate those sorts of burdens it's not the source of it and the beneficiaries of anti-Asian bias are not other students of color they are white and generally quite wealthy students but then with the respect to your question about the broader attacks on DEI that we're seeing in Florida and that we're seeing in Texas I think it's imperative that we recognize that this is all connected we're in this moment where there is a broad concerted campaign to roll back civil rights in this country it includes the recent attacks on DEI efforts but it also includes attacks on reproductive autonomy on voting rights on simply being trans or a member of the LGBTQ community it includes criminalizing protests it includes banning books it includes censoring basic conversations in the classroom about race and racism I think it was today that Florida's Board of Education announced that it was expanding the don't say gay law from sort of elementary school up through 12th grade so I think it is really again imperative that we see attacks on affirmative action as part of a broader assault on civil rights around the country and it's not some hidden agenda chief proponents of this sort of anti-civil rights effort with connections to think tanks like the Manhattan Institute the Heritage Foundation and the Claremont Institute have been open that the goal is to return us to some pre-civil rights era where the problem is not the underrepresentation of women or people of color in higher education but that there are too many women and people of color in higher education so it really is important to see that affirmative action is just one front in this broader battle between competing ideologies one that you can sort of think of as defined by sort of the old status quo really sort of characterized by rigid hierarchies and one that is aspiring for multiracial democracy because like just think like what are DEI efforts they are modest attempts to cultivate institutions that are just more inclusive and more equitable where everyone can enjoy the full benefits of university membership irrespective of their identity against the backdrop of an American society that is steeped in many different legacies of hierarchy it actually takes a lot of work logistically and analytically to create organizations and institutions in which everyone can thrive that's all DEI is trying to do but there is an effort to delegitimize discredit these sorts of efforts and so then harness the law to actually prohibit them and so I think we have to again see attacks on affirmative action as part of these broader attacks on civil rights more generally and I totally yeah whole Harley agree with that it's like it's you know it's like they're just changing up the wording but we're like if we can find a way to sneak in ways to you like you said attack civil rights reproductive rights voting rights all those different things are basic human rights um that they can find a way to just you know ban or take away from you know from communities that really need these things um and I think you yeah I think this is love where this conversation is going um but want to get your thoughts I know we you touch a little bit about critical race theory and I know that you know this is something else is people aren't talking about banning and also probably needs to be to find a little bit more because people do not understand what critical race theory is and what it entails um but yeah what what what would the ban on affirmative action what would that dialogue look like around you know critical race theory and what yeah what would that look like what yeah just curious to hear your thoughts on that yeah so it's a really it's a really good question and what could a a ruling that prohibits universities from engaging in what really are the most modest efforts to try to reduce the degree to which race and racism otherwise might impact an admissions process just to out outright ban that what does that have to do with crt and attacks on crt and I think we can see a few a few connections one is that when the supreme court as it's likely to do outlaws affirmative action implicit if not explicit will be a few empirical claims one is that race doesn't matter at least not until you explicitly make it so and the other is that if racial inequality exists or if racial disparities exist whether it's in admissions whether it's in health outcomes um whether it's in um being the target of police violence racism has nothing to do with it those are the implicit and sometimes explicit messages so when i'm in the following the summer of 2020 when president biden is leaning into this you know the um language of structural racism and you have folks on the other side of the aisle who are denying that systemic racism exists in the country implicit in that statement is that well if there's inequality it's not because of racism it's because of something else and again an affirmative action ban would be to say that if there is inequality in admissions that is you know morally legally unobjectionable because it might be might have to do with something but it's not this thing that we call racism because the moment that you admit that race matters even if we wish it didn't the moment that you recognize that racism is structural that it manifests in ways beyond some sort of crude person-to-person um animus-laden interaction it means the following if you don't account for racism certain people are going to benefit from racial preferences all over the place and it turns out in this society like the united states that's going to be people who are racialized as white and it's only by taking these um deeply embedded systemic forces into account that we actually move closer to some sort of quote-unquote meritocratic system so what's that all through a crt well critical race theory is an academic framework that offers a set of vocabulary and questions and concepts that helps to surface all the ways in which race and racism continue to operate even in a society that demands sort of formal neutrality and it's just a system that helps us see all the ways that this thing called race is simultaneously like intuitive but incredibly elusive and happens to shape every contour of our public and private lives um but if your message is race doesn't matter systemic racism isn't real systemic isn't justice isn't a thing and like these are not actually my words folks like the governor of florida um and his representatives have gone on the record saying that um wokeness or what it means to be woke is to believe that systemic injustice is real if your goal is to urge those sorts of conversations from public discourse it makes sense to try to ban students from getting access to just the the facts and the concepts that will help them see and describe that world our different way to put it is that crt has always in part been this quote-unquote boogeyman that right-wing think tanks mobilize to try to scare people but it's not just a boogeyman it actually is a threat if your goal is to prevent the American public from having just the basic vocabulary and framework to see the world in which they live and to see that racism continues to permeate us society in ways that actually can harm all of us um not just people of color and certainly it would be inconsistent with a critical race perspective to say that just because someone happens to benefit from whiteness they're somehow insulated from all the precarities that continue um and just increasingly manifest in our society but the thing is critical race theory also just simply reveals that color blindness isn't just morally you know um uh fraught but it's also empirically bankrupt and so again it's just important to see that crt is not just boogeyman but is also a tool that promotes multiracial democracy in a way that um uh is understandably threatening to someone if you're if your project is not multiracial democracy wow i love the the the the term of boogeyman um link to crt i might have to use that um in the future with having conversations with people on this um yeah i think we talked a lot about um you know ideologies and you know di efforts and crt um but want to get your your take on you know what you know what this ruling could potentially mean for just the future of our country's like workforce and economy i know this is going to also have implications i know we talking well actually implications on graduate emissions because i know a lot of this is focused on undergrad emissions but i'm just curious to think thinking about graduate emissions as well too and like you know our country's workforce and the economy and i know this is this has also come up with law law school and medical school emissions so just want to get your take on that as well too so you can break down consequences into a few buckets the legal the material any and even sort of the symbolic so the one legal consequence is this ruling is going to further restrict the ability of public and likely private entities as well to take racism into account to promote racial integration and historically segregated institutions to remedy histories of racial discrimination and to reckon with ongoing racial harms in the present the reality is that a lot of institutions are risk averse and so even if there's space where they can continue to operate that might be consistent with the law they're likely going to self censor and we've seen that in a lot of places where institutions even when they are not required to do so abandon or eliminate some sort of race conscious or racially attentive policy and and that should be troubling for all sorts of reasons but then let's think about the material consequences and you can think of this in a few different ways one is that we are going to be locking in racial inequality because again affirmative action is among many other things it is a tool to try to mitigate all of the ways in which the society in which we live currently locks out a lot of people from opportunity not because of their sort of individual talent or work ethic but because of the different sort of force forces or headwinds that they face and we should think of this not just as you know some sort of moral hazard if that's happening but even if the goal is simply to have the best and brightest fill in the blank if you want the best and brightest surgeons you want the most talented pilots if you want the top CEOs you are not going to get that if you have a system that is simply rewarding the students that have inherited the most social capital and advantage but that's where we're going to be moving to if you can't have programs like affirmative action that are enabling institutions to take into account of why different students might be differently positioned at the moment of admissions or put differently think back to sort of the pre-civil rights here so Jim Crow when you formerly were barring women from a whole lot of places people of color for most institutions you were by default not rewarding merit you're rewarding mediocrity and affirmative action policies were designed to try to just reshape those institutional arrangements that were continuing to lock out people who were who should be there and were oftentimes the quote-unquote best and brightest but because of their circumstances we're not able to ascend to those places of privilege and prestige so again if our simple goal is to be you know and like in the I don't know the lingo of the like American mythology like the best country in the world that means that we actually have to enable the best and brightest to actually get into those positions of power and access those opportunities but if you are taking affirmative action off the table if you are making it harder for institutions to actually account for the circumstances in which different students went from being born to making it into that admissions pool you are going to inevitably lock out many of the best and brightest and just from a you know from all sorts of reasons that should concern us and the last is symbolic and this is I think also really key when you are locking in inequality and you are saying that accounting for race or racism is problematic or is somehow a departure from this thing we refer to as merit what you're saying is that racial inequality is legitimate and just that is a deep should be like deeply unsettling because what it is suggesting is that if you have institutions if you have positions of privilege that are overrepresented by a minority of the country then you're suggesting well they're overrepresented because they're somehow better than everyone else not that they have simply been the beneficiary of a whole host of you know systems and arrangements that create a nice tailwind that push them ahead while holding everyone back and so it is sending the message that 21st century racial stratification is not just like lawful but it's also sort of morally just oh wow yeah it's like we're going back going backwards going backwards um so want to just shift gears and to start to think about what federal policy could look like um you know at new america we are you know very focused on federal policy just given our location um being in the nation's capital um what would you like you know congress or even the white house to know about the fallout of this ruling and how could that decision affect federal policy and what can congress do to maintain and improve access um for students of color so i i think you can think of this in a lot of ways one is that it is really imperative that the white house in particular use its bully pulpit to make very clear to the american public what is happening and and to make clear that a decision that is outlawing affirmative action is a decision that is outlawing a basic civil rights remedy that is a decision that is saying america you might want to be anti-racist but you're not allowed to um in other ways in which the court has intervened in deeply anti-democratic ways to thwart the will of the people of the majority of the country who are committed to reckoning with our really ugly history that continues to shape all of our lives and so it's really important that the white house make clear what this decision um really is meaning and situates it within this broader attack on all of the pillars of multiracial democracy whether that be education whether it be voting rights whether it be reproductive freedom i also think that it's important that the white house and the department of education the department of justice continue to leverage existing federal civil rights laws including title six and title nine and remind institutions that they have a legal not just a moral but also a legal obligation to create institutional settings in which everyone regardless of their racial identity regardless of their gender is able to enjoy the full benefits of university membership and to locate DEI efforts within that project and to also make clear that attacks on DEI to the extent they are attacks on some ideology they're attacks on the ideology that is a commitment to multiracial democracy and so it's the white house should be clear that our institutions are not supposed to be neutral we are supposed to be committed to multiracial democracy we're supposed to be committed to equity and inclusion uh and anti-racism as an ethos actually is required to get us there i think it's also really important that the that congress that the white house not um censor itself and not over correct or over learn the lesson of this case but actually fight to maintain the policies that are necessary to realize a more racially just society so you can just um think about the aftermath of brown people out of education or what followed after the civil rights act of 1964 institutions that were committed to segregation did not fold they got loud they got strategic in different ways to try to maintain a society that was defined by racial exclusion that was defined by racial hierarchy that was defined by racial violence it's important that the white house that congress that everyone who sees themselves on the side of multiracial democracy recognizes that this is a moment where you can take a stand in different sorts of ways to stand up for the highest aspirations of america and not simply fall to a decision that legally limits the ability of institutions to again in the most modest ways try to um realize more racially inclusive and equitable and meritocratic institutions yeah that's yeah i wholeheartedly agree on that as well too um is bringing some of that that stuff that we did back in the day um you know the good things that these institutions were already doing to just hold the line and be vocal about what they're going to do with their actions and not just stand around and you know sit back and watch for things to unfold um my last question you know just kind of just want to get your take on what would you like you know just for the general public you know takeaway from what is unfolding and i think you probably touched on a lot of different things and probably can answer this question in so many ways um but what is like one fear you have about the upcoming decision but then also one end on a good note um you know what is one hope so all right so a takeaway of fear um and a hope i think what i what i hope right i guess maybe i'll go hope for your hope no whatever direct whatever yeah whatever which way you want to go so i my sense is that much of the public viscerally experienced docks the decision which the supreme court overturned roby way as anti-democratic as extreme as a just total disregard for existing law that stripped people of their equal citizenship in this country and i think it was really important to just feel the illegitimacy of that decision i think it's important for people to also feel how extreme and anti-democratic a decision outlawing affirmative action is outlawing race conscious admissions this the sort of policy that's under attack the sort of um policy that harvard and unc and countless other institutions employ is in many respects one of the most modest ways that a society and institution could attempt to reckon with a social phenomenon like racism that is so structurally baked into our society that it is affecting everything um and so the other sort of the flip side of that is to recognize that nothing that is being challenged right now none of the affirmative action policies none of the dei programs are in any way radical themselves they are limited modest efforts that came under attack in the summer of 2020 because we saw how little we were doing relative to how much we actually need to do so i think important to see how radical a decision stripping affirmative action is and how modest these existing policies are my fear is that this decision if it prohibits universities from employing race conscious admissions will chill a range of still lawful policies and practices that institutions could employ to mitigate reckon with remedy racism uh in this country um and emboldened all of the anti equality anti civil rights uh efforts that have really come to define one of our major political parties particularly in the last three years but so here's so here's my hope my hope is that the decision reinvigorates or continues to invigorate the pro-democracy anti-racist ethos that i think has galvanized not just the country but a new generation of americans who will be um leading this country and see the existential crises that they are facing whether it's environmental whether it's democratic whether it's just an illegitimate set of sort of minority rule forces and so my hope is that the decision is part of you know adds on to this sort of social fabric that is invigorating this new generation of leaders um that i think we are beginning to see rise up around the country because my guess is that democracy's best hope that the country's best hope that just our environment sustainability best hope will lie in uh this generation yeah um again agree um yeah a lot of the younger generation who i applaud to them being very vocal and a lot of up and coming leaders who are you know getting behind a lot of these issues that are very prevalent to our society um yeah and and this this concludes our our chat for today um again myself new america we really appreciate you you know being on board and talking and hearing your thoughts and perspectives about what is yeah like i said what's going on and soon we're on currently on pins and needles waiting to hear the decision to come out um yeah thank you so much again dr feingold we really appreciate this uh thank you to shon and to everyone at new america it's really a pleasure to be in conversation with you all