 back to Think Tech Hawaii. Time for responsible change and today we're going to talk about affirmative action. One of the cases that the Supreme Court will be dealing with shortly and I use the term dealing with in its loosest possible sense. We have the good fortune to have with us today Tina Patterson, mediator, arbitrator of national and international experience and business experience and consultant. Doug Chen, former Lieutenant Governor and Attorney General of State of Hawaii and partner director at the Starno Tool law firm here and David Larson who has just become the immediate past chair of the American Bar Association section of dispute resolution and a distinguished professor, respected professor at the Mitch and Hamlin School of Law in St. Paul in the Twin Cities. Welcome all of you. Affirmative action. Any ground for optimism left or where are we headed here? Tina? There's always ground for optimism and I do think I'm especially optimistic knowing that the face of the Supreme Court justice has changed with the new justice coming on board. It gives me hope but I think there's also hope in terms of the conversation regarding affirmative action isn't just I'm giving this to you because you didn't deserve it. It's more about making sure that the people in our workforce that everybody's given an opportunity to be at the table and I know that there are some that don't feel that way but I think I'm still optimistic. That's a great way to put it. Doug? Well I'm actually thrilled that we're starting off with optimism because I think all of us could use that. We could all appreciate that these days. I think I would have just answered the questions that I am concerned and I think it's a concern for people in Hawaii as well as all around the country but in our state it means something and that's because we have such a high portion of our population that is represented by different minorities that includes Native Hawaiians it includes other minorities and so to put affirmative action at issue in front of a very conservative court that we have now I think is concerning and it's something that we're all going to have to watch for and I think educational institutions in particular are going to be watching for because they could be seeing perhaps even similar to the Dove's decision they could be seeing like decades of a certain practice being reversed very quickly so I think that's something that we all have to be somewhat concerned about as we're watching the arguments unfold. David? Yes I'm optimistic like Tina that we finally put a black woman in the Supreme Court so we've evolved enough in that respect but we're looking at a 6-3 court now and we're looking at a court that is so eager to get into hot-button issues that they just can't they can't restrain themselves and I think they're going to go after every hot-button issue they can and I'm concerned about how ideological all of all of those opinions are going to be. You know and that's a great insight David because in their eagerness we have seen them take cases do shadow docket cases and issue rulings on cases with far less than a full record sometimes without even briefings and arguments. Where is that coming from? What's behind that eagerness that rush to judgment? I just think it's frustration that we have not been able to get our way for a while we feel like the momentum and tide has been running against us and now it's our turn and you know we'll be darned if we're going to let this opportunity pass we're going to get as much done as quickly as we can not unlike endorsing the new Supreme Court justice in a week it's like we don't have much time but let's get things done so yeah that's that's that's what it is I think the idea that this is this is a golden opportunity for us we have a supermajority nobody can stop us so we're going to run with it. So where specifically do you see reason for optimism other maybe than the cholesterol accounts of certain justices? Tina? Oh goodness all right so first let me say yes I am optimistic but I'm also very there's a strong dose of realism and I think as David mentioned it's this this deal to let's react and not think about what the implications are and we saw that with the overturn of Roe versus Wade I think we'll see the same thing here where there's just we're not thinking about how it impacts not just academia but how it impacts how we hire how we fire and the what the message that goes out so I think that it is going to be a challenge I think without really doing that the due diligence and the analysis and looking at what if what are the circumstances underlying these cases that are coming forward and do those circumstances still apply today? That is what causes me to think that this could literally end up falling flat in terms of the final analysis if the decision is to make changes that you'll see individual states saying yeah but what about this and did you think about that and what about in this instance again I'm thinking again about how what's happened with Roe versus Wade being overturned individual states are coming up and saying you know but we've got this law going back to 1928 or 1930 how does that apply here and the state local justice saying it doesn't but under these special circumstances or we find the outlier where you've got a case where it wasn't even considered so those are those are some of my concerns regarding how this moves forward in terms of application and the real due diligence I think it's helpful that we've got some justices that have had practical experience in other sectors so that they can apply that as they do their analysis and as they look at the application of the law but some others Clarence Thomas in particular I'm not so sure that he has the requisite experience or knowledge to really weigh in on this matter. Good perspective. David, Doug? I'll let Doug go first go ahead. Sure I mean I think something that there is a reason to be optimistic about is to see how how much the public is watching what the court does so similar to what Tina was already mentioning it does seem that after the Dobs decision the public reacted and and so even though I think my own personal preference would have been that the court would have ruled a certain way when they did rule opposite of how I was thinking about it the public was watching and they reacted we saw that in in the the constitutional amendment that occurred vote that occurred in Kansas where they then you know upheld the right to an abortion and and we see how it's possibly affecting limited terms although we have to see how the next the next month plays out. I do think the other thing that that's fascinating to me as I was thinking about the question is that you're right I mean I think for all of us who are lawyers we just think of the Supreme Court is like well this is where the buck stops like once you have a Supreme Court decision then everything else that could possibly flow under this decision gets impacted by that and so I think that's where you know as Tina was talking about the if if the justices aren't really performing their due diligence it's kind of like they make they make a big decision that you know lurches everything in the opposite direction without really thinking how does that play out in every other possible situation so I certainly don't mean to take a soft topic from affirmative action because that's really important but I think about how the the masterpiece take shop case is essentially getting a do-over in this next session where a similar circumstance is going to be raised in front of the court and again there's going to be the situation where you know if a business is allowed to say look I'm not going to be doing work for you because of my religious beliefs there's if the court allows that to happen and doesn't is it nuanced enough in how they describe what they're allowing then it allows people in the US to be able to do a lot of things based off of religious beliefs including discriminating against people because of their race or you know because of their ethnicity because of their religious freedoms so again I don't mean to take us off topic but I but I was meant that as an example of how how these decisions they're very momentous and and I think you know I think there will be some sort of check and balance even to the supreme court based off of the decisions that they make this year okay two things one should let the go I should not have let them go first because that's what I was going to say so that's always a cost to be applying but but thank you for being so insightful of I had the same idea because Gallup polls recently surveyed and they came out and said 25 percent of the public no longer has faith in the Supreme Court that's got to get their attention and Justice Roberts or whatever you think of him does worry about the reputation and integrity of the court so that's got to be getting their attention the fact that 75 percent of the people are losing their faith in the United States Supreme Court so I hate to be optimistic because things are so bad but maybe the fact that things are so bad will make it make it get better so in that sense I think it's maybe maybe a little encouraging I hope so I hope that can turn around like that in the in the website design case I think one of the one of the unsettling things about that it's not just a religious expression concern it's a freedom of expression concern under the First Amendment and so if that's how it's going to be pitched now you could have a white supremacist you know saying that it's my my expression the discriminated against based on race you know I think it's really it has explosive potential if they rule in favor of this website designer on the freedom of expression claim that who knows where that's going to go you know and that's a great insight because exactly as you're indicating this spans the entire gamut of discrimination cases and issues whether it be educational voting rights employment or any other area that supreme courts already in the employment area eroded and limited discriminated discrimination cases down to a fairly high standard of proof of intent and knowing intent to discriminate clearly justice Alito if he's able to dominate wants to take this court in that direction the very argument in depending Alabama case between justice Katanji Brown Jackson who cited accurately the true history of the 14th and 15th amendments to the Constitution which as far as we know are still part of the Constitution although there may be justices on the Supreme Court in some regard that has a legitimate basis for a legal decision well we know where Clarence Thomas would go I went to the EOC appellate division in Washington shortly after Clarence Thomas was chair it wasn't chair when I went there but when he was chair he set out the the command that we're not going to litigate disparate impact cases I don't believe in the theory I just you're going to have to prove intent and this very viable long settled theory suddenly dropped out of the arsenal of anti-discrimination work so I just think that as Chuck's mentioning that he will be on board with the idea that you know I'm going to I'm only going to intervene in the most extreme situation I think he's signaled that pretty clearly including in the Dobs decision um so what other deficiencies do you see in the approach that the right wing Supreme Court justices have been taking in recent decisions that might give them pause before going off headlong in that direction with a feeling of impunity because they have lifetime appointments and no ethics code okay if it was right um for the Chief Justice Chief Justice Roberts there is concern because this is um this is another matter in which he he has some sway he has opportunity to to literally have a thoughtful intentional discussion or some type of analysis um and I'm thinking back as far as the impeachment proceedings and the with the previous administration this lack of direction or guidance and his ability to really have the a focused conversation or a purposeful conversation is seen by the public and and I think it's part of that that 25 percent have lost confidence because they're seeing things leaked out that in the past wouldn't have been leaked out or things that they thought would be addressed or discussed at a later time suddenly being advanced and with no rhyme or reason so I think there's there's some opportunity for him and there's some concern because at this point I'm not sure that history is going to look kindly um and I like Supreme I'm sorry Chief Justice Roberts but some of this this his analysis his knowing that he's been considered a strong jurist it just kind of makes me wonder what's going on and and I think that more than anything else would give him pause to think about what happens next especially on this on this matter Doug I wanted to say I know you thought it was tangential but it runs parallel it definitely runs parallel because there's so many similarities so that um I think with the Chief Justice there's a bigger concern for some of the other justices you know that they're they're feeling like you know this is an opportunity for me to make my mark even if it does the decision doesn't go in my direction I can always write a minority opinion or a dissenting opinion yeah we were talking it's worse than we think it wasn't that 25 percent have lost faith it's that seven 20 only 25 percent have faith which i'm sorry lost faith which is much more unnerving um so yeah that's but but yes I and that's what I'm saying that if it's gotten that bad that's got to get their attention that uh you know if nobody believes in us nobody believes in the rule of law um then we go into chaos then we go into anarchy then we go into authoritarianism um that opens the door for you know the the worst kind of government yeah and and I think one of the things that we saw was just how like I mean prior to the Dove's decision uh the the midterms uh did not look like a good outcome for um the the democratic party I mean I think everything every all the entire talk was about inflation um the focus of the nation was on that um and it was impacting I think everybody's expectation uh was that the election would completely swing towards the house and senate being controlled again by the republican party um but I think what was clear was that when the supreme court made the decisions that the the broad decisions that they made um that it's now at least become an issue um that has made the the midterm elections um up for grabs in in certain races uh where they would never have been up for grabs and so I think that's um that also must be something that you would hope that the the um that the right wing side of the the justices would be taking into account um I was actually interested in in the the the perspective that it's probably that it's been a pent up demand from from all these these years of being the minority to all of a sudden being able to you know to have their um have their way in terms of decisions that are made um but I just I I think that the the rapid the rapidity of how quickly the that all these these changes are being made um I think the I think it fails to recognize that society and the country has moved on you know like that in other words the the country has evolved and and moved further uh than than where um and so that there's a reaction to what people are seeing yeah along those lines um of evolving um when the constitutional was written the majority of this supreme court didn't have the right to vote so that's that's that's a very real evolution like that um I wish we had like two hours today because these topics are really good but um you know I'm I'm partially responsible for this but I don't want to run out of time and not talk about a throne of action and uh because that's one of the big cases and Doug was also mentioning that he wants to get back to it too um now I always start that discussion with I I just regret that that is the label that's put on this kind of conduct affirmative action because I don't think it's I think it's a misnomer I think it's really remedial action because the you can't have an affirmative action plan without a factual predicate you need some justification for doing it and the justification is has almost always been what we call past sins you know you know past instances of of of discrimination and manifest and balance and traditionally segregated job categories but you had to point to some reason for having an affirmative action just couldn't do it because you wanted to and um you know I think a kind of a difference is when you look at the Americans with Disabilities Act and you talk about making reasonable accommodations and making financial investments and could be substantial if you're going to use the term affirmative action that's a little bit more of a throne of action than in the in the race discrimination area which I really think the proper term is remedial action um so so yeah so I to start the conversation I just think it's been framed incorrectly from the beginning which then points people to exaggerate the results I've been on four I've been on five faculties tenured at four schools and lots of admissions committees and um yeah I think that people are way over exaggerating the influence of any kind of affirmative action considerations on admissions you look at all kinds of things in people's lives and you look at maybe that alcoholic parent maybe they had a drug dealer as a parent maybe they had terrible poverty and there's all kinds of things you consider and the notion that somehow race is going to be the controlling factor and admissions is just not accurate well and that's a great insight because as Justice Katanji Brown Jackson has taken the lead in pointing out emphasizing and making clear despite what Justice Salido may contend the 14th and 15th amendment were put in place to try to counter systemic discrimination not individual intentional discrimination only that as well but the systemic discrimination and the primary marker of this systemic discrimination is disparate impact it sweeps in intentional negligence and any other forms of discrimination that achieve that result that was the purpose of those amendments and that constitutional direction which was also the purpose of the 1964 and 65 Civil Rights Act and accompanying legislation so immediately after Dobs and applicable to to affirmative action hopefully we'll see this again there was extremely strong adverse reaction and assertion of rights not only at the grassroots level by protests not only women but wide groups of diverse people but also at the academic and intellectual level the commentators the professors those most knowledgeable about constitutional law and its history and intent came out almost universally in favor of the attacks and criticisms of that Dobs decision rather than in support of that decision and pointed out the intellectually deficient and dishonest things that that decision had engaged in including some who had been Amiskus Curiai on briefs on that same court is that a concern that you believe the Trumpists and Alito and Thomas will really pay any attention to well I think we know how the the Trumpists and the conservative the far conservative portion of the Supreme Court is going to be looking at things I think when it comes to affirmative action I think what's what strikes me at least from what I've seen Chief Justice Roberts say before about affirmative action is that he really in my view it seems like he really doesn't want to be having people make this you know entities making decisions based on race and so he and so that's that's a concern because it it seems like when it comes to affirmative action that Chief Justice Roberts for his own reasons will end up having making decisions that that go against affirmative action because he doesn't want universities or or entities to be making decisions based on race that they should just not be thinking about it at all and and I think that that goes against the idea that at least in the back of people's minds or maybe even just there should be an awareness that that not every group gets the same opportunities that every other group has and that that's really sort of been a bedrock of what the the U.S. has been all about and certainly was for me and my family when you know when my parents came over as you know as immigrants to the United States and me and my sister were born here and we've seen that in the language that Chief Justice Roberts was using prior decisions basically saying we don't have any more discrimination particularly in education so we don't need that anymore and Justice Alito has seized on that even in a clearly racially based not just politically based gerrymandering in alabama case that was argued this week saying okay so if it's race neutral it's good and if it comes out of computer it must be race neutral now my 15 year old nephew knows more about coding and algorithms than obviously just as Alito does but leading scholars all over have talked about the input of implicit bias into AI into computerized systems into the algorithms and assumptions that make up these things and you don't come out with one majority black district in a 27 percent black state with a racially neutral computer algorithm AI system it just doesn't happen so one of the level of intellectual dishonesty that we have not seen since justice or inquisps unfortunately one of the one of the one I think is one of the best examples are justifications for affirmative action refers to a foot race and you know one party starts ahead gets a 500 yard lead and you start the race and the conditions are perfectly fine for that entire race it's not going to be surprising if that first party doesn't end the race 500 yards ahead and I think the point of affirmative action is a recognition that some groups are starting with a lead and that that gap will never be closed unless we do something to close that gap and the plan was always that would be a temporary approach that if we do this that gap will close and this is going to be engaged in forever but let's not pretend and we have all kinds of numbers from the Bureau of Labor Statistics that show that when it comes to wages home ownership all kinds of economic indicators those gaps haven't been closed so to take a to take an idea that we need to do something temporarily to address these historical inequities that have caused these gaps and to try and close them doesn't seem unreasonable at all so then we have the ultimate challenge how do you accomplish something that is race equitable rather than race neutral and privilege neutral which is the real underlying threat and I Tina I see you smiling you know exactly what I'm talking about right I do and I think that's a very that's a very fluid tightrope because by virtue of being here I could go either way I could go a privileged route and that would be based on education lifestyle but then there is the the representation being a woman of color and being a woman so I am I smile because I think I don't when we start to bring the privilege conversation in it divides that it divides us yet again and instead I'd like to talk about if we're going to talk about race let's talk about how reflective our our our leadership is and in the communities that we serve whether that's an academic institution if you know that the community in which you serve is a mix of 52 percent African American 20 percent Latino 12 Asian and you have a 90 percent white staff why why why is that how does that reflect and to me that's the larger conversation when we talk about the workforce when we bring it when we're talking about bringing in students or recruiting students like it's interesting I'm with an organization and they constantly tell us we can't find qualified students and I I normally have to mention the historically black college and universities but did you reach out to them and I get the well and I know what it is because the but there's a belief that there aren't qualified students there so let's start with everybody's qualified and then how do we make that either our leadership or student population I'm going to talk about academia reflect the community that that we either serve or that we're around to me that's that's part of it but the the privilege part again it starts to it divides that again because I think and I again use myself as an example you know if we're going to talk about privilege and not talk about race it puts me in a different group and I I'm happy to recognize that but I also need us to talk about what that means for someone who doesn't have that privilege and still is part of an either historically marginalized community in our last minute parting thoughts well I mean I think for people in Hawaii who are watching this I think you know Hawaii is a very small state it's a majority minority population and so I think affirmative action has been something that's been an important part of just any any system that that I think people in Hawaii should be interested in and so I think what we're looking for in the Supreme Court is and what we're going to be seeing happen it's going to have a major effect and I think it's something that everybody should keep watching thanks so much all of you and a great reminder that the strength inherent in diversity is an objective worthy in and of itself and that has not been part of the legal analysis or reasoning that the right-wing majority of the Supreme Court has brought to this really important issue thank you all thanks to the viewers come back and join us again we'll be back in a couple of weeks take good care thank you so much for watching think tech hawaii if you like what we do please like us and click the subscribe button on youtube and the follow button on vimeo you can also follow us on facebook instagram twitter and linked in and donate to us at think tech hawaii.com mahalo