 Thanks so much for joining us on Think Tech Hawaii. Time for responsible change. And today we're going to talk some about where the U.S. Supreme Court decision on affirmative action leaves us, where it's headed and what might be constructive ways to address that and respond to it. And we have with us back for the first time since April, Rebecca Radliff, wonderful jams, mediator, arbitrator, long time senior claim executive and knowledgeable and respected in the insurance industry and the ADR conflict resolution industry nationally and internationally. Tina Patterson, who also has national and international experience in business consulting and is also a leading mediator and arbitrator. And David Larson, professor at Mitchell Hamlin School of Law, media past chair of the American Bar Association section of dispute resolution and a pioneer in court online dispute resolution, bringing access to justice to people through online court processes. So wonderful group here. Having read through the decision that the Chief Justice wrote for the Supreme Court in the affirmative action case, which has now held that affirmative action programs violate the Equal Protection Clause of the 14th Amendment and are not lawful. Where does that leave us? Well, at least it's confused. You know, there is this little that little escape clause that was put in there saying that, well, you could still consider as applicants explanation of how race affected his or her personal life with challenges they created. And there go, there go the confusion because you're not supposed to consider race. But if an applicant writes about how race impacted their lives, then I guess you're considering race. So if you're on an admissions committee and you're trying to decide what factors can I look at, I think you're left with some confusion. And the problem is there are groups lining up that are saying, you know, we're watching you now, and we're going to sue you. If we see any evidence that you've taken race into accounting admissions in my school, we've received those kinds of threats. And I imagine pretty much every school is receiving them. So there's a lot of intimidation going on. Well, in the history of affirmative action, in the Bakke case back in 1971, the first one that really approved it, we had four opinions saying affirmative action was okay as a remedial measure to correct racial discrimination against minorities. We had four saying it wasn't. And then we had Justice Powell writing what turned out to be the swing vote and eventually getting later accepted as the significant opinion, whatever that means, saying no, but diversity is a legitimate constitutional basis for colleges to factor race in as one element in the admissions process. And since then, the resistance to that has been looking for ways. Now we're at a point where if you read the opinion carefully, it looks like they are, and Chief Justice Roberts is, setting it up to undercut that diversity justification in future cases. Am I off base on that, or was that a sense that you folks also got on this opinion? Well, I think Chuck's right. And I think that there have been different attempted justifications for affirmative action. And diversity is one of them, that there's value to having a diverse population for a variety of reasons. Not the least of which is that when you come out of school, like it or not, you can run but you can't hide. The United States is ethically and racially diverse. You're going to live in a place that is racially and ethically diverse, and you have to be able to be comfortable there, work effectively and productively in that environment, and hopefully school can prepare you for that. So that's a strong reason to say that, yeah, we want to have our schools integrated. We want to have them diverse. When you think about affirmative action, so that's at least in the educational context, that's been one of the accepted justifications. When you get move over to the employment, really the only accepted justification, and that hasn't, that has not been accepted, is kind of a past sins model or a past sins paradigm. That is, if you can demonstrate that you're in a historically segregated area, that where your occupation or workplace or industry is, then you might be able to engage in affirmative action, but it's really a past sins paradigm. The only justification is if you're going to pass sins, and then if that's the only justification, then you get the immediate pushback that I didn't do any sins. I wasn't around when all these things happened historically. I'm not a sinner. And because I'm not a sinner, you shouldn't be able to impose affirmative action on me. And so you get caught in that kind of trap. And so long as there's a resistance to accept any other kind of justification under equal protection, that's the conflict in affirmative action. What's concerning to me, and I've had a lot of conversations about this, and mostly we're speechless. As you said, David, when you began, it's confusing. But I'm concerned with the points that you've just made. I'm concerned about the domino effect. You can't win for losing is the saying that we used to hear. And so there are all these loops. As you've said, if we come up with a reason for why or how minority experiences should be considered, then there are laws being put in place. Florida is just making some incredible law right now to make sure that you just can't win for losing anywhere where it appears that an agreement might be able to be made to give advantage to people in disparate condition. It appears that the legislation doesn't support. I'm trying to the legislation that exists and the legislation that's coming doesn't support equal justice for minorities. And so this is a step back. I'm concerned about the instability that this is creating. And before the show started, Chuck was talking about education, employment and housing. It's not just education. So in addition to the points that you've brought up, David, we also have to be concerned about the domino effect that happened because of COVID. So there's all kinds of instability that exists in communities where they are underserved in so many areas. And now the question returns as to whether or not those the people in those communities can educate get their children educated. I mean, it's just like this vicious cycle. We've moved backwards and I'll admit it does have me speechless because I don't know what's going to happen. So it's even it's just hard for me to even articulate the concern that I have around this reversal. Well, and there's another element in the decision which is both prioritize and emphasize repeatedly, not once, not twice, but many times, which is remedial action programs for discrimination have to end. And Chief Justice Roberts has been pushing for those to end for years. And now he's got the votes to be able to do it. So regardless of whatever else is said in the opinion, it's clear that one of the things that this right wing majority in the Supreme Court has decided to do is to put an end to remedial measures and actions for the results of not decades, but centuries of discrimination. And not just racial, but sexual preference, disability, many other kinds, linguistic proficiency. Yeah, Chuck, he used the right adjective. I've always said that affirmative actions in misnomer, really what we've always been talking and doing is remedial action. And it's based upon our history of discrimination. And it's not something affirmative, it's we're trying to correct what we've done in the past. To the degree that this court has declared that there's no need for remedial education, it's just suddenly tone death. It's like, how can you look at America today? How can you watch the evening news? How can you read any kind of print media and think that there's there's no need anymore, that everything's fine, that all discrimination has been overcome, and we can just go forward equally. It's just mind boggling. It really is. Seeing that discrimination, that there's no more discrimination is no longer needed. It's, oh my gosh, what have we got on our hands? We are now opening the floodgates, we are now having a conversation where we're talking about everything as Chuck indicated, people who are linguistically diverse, people who are in terms of abilities, ableism, diverse, sexual orientation. These are aspects that we didn't talk about in the 50s, 60s, 70s, in the 20th century. And we're entering the 21st century. And this is a conversation where we have schools who, you don't tell us, we'll pretend it's not happening, where we have students who are of diverse sexual orientation, but we'll pretend we don't see it because you don't bring it up. And Tim now say, well, everything's fine, we'll go back to where we were, or these programs are no longer needed. It puts the students in jeopardy, but it also puts the schools in a very difficult position because they now know how do we maintain the matriculation rates for students. Every school wants to make sure that their matriculation rates are at a certain level when they drop below 40 or 50%. It usually signals there's something going on either with the programming or with how the school is administered, back to this funding of dollars. This, and I've been listening to the news where schools are now trying to figure out a way to incorporate into their application a question that can vaguely or can be obfuscated to ask this question, because they know that if they don't have a diverse student population, that the students will suffer in the long term, as you indicated, when they enter the workforce. To go into the workforce and say, oh, I've never met anyone who is still in the blank. It is both a shame and it also indicates that the school has not prepared that student well enough, and we want them to be successful. We want our students to be successful. If this is the model that we're going to create, we're going to see students who are going to go to private institutions and privately funded institutions. I think it also will impact our instructors, and it is impacting our instructors. I had a conversation yesterday, I was delivering a class on unconscious bias, and the group was adamant, do not record this session, and why? Because some of them were at institutions where the conversation regarding diversity at the inclusion and unconscious bias was forbidden and had unwelcoming consequences. So, you know, I think we're navigating trying to navigate this as carefully as possible, but at the end of the day, I see both students as well as the schools being harmed. And I also see that this becomes now a, every state determines how they want to address this, especially for those state funded schools. Well, that's a great insight. Yeah, David, go ahead. Let's say, Tina, this takes us a little away from affirmative slash remedial action, but talking a little bit about the curriculum, and tied to all of this is this whole myth of indoctrination. That somehow there's woke indoctrination in the schools, and that's been a big thing with Governor DeSantis in Florida. They're going to stop woke indoctrination. But it's really a, it's a misrepresentation of what indoctrination means. I mean, indoctrination means that you are insisting that students accept as truth, something that's professionally contestable, that you have to accept that as truth. That's not the same thing as introducing concepts and opening up a discussion. You know, so long as you leave the opportunity for students to provide an alternative perception, or to challenge whatever you're asserting, even though you might come from a particular political position, that's not indoctrination. So the drumbeat has been that whenever you address particular subjects, that mere fact of addressing the subject is going to somehow, so, so, influentially affect the student's perception that we've got to bar it right from the outset. There's an interesting study with the University of North Carolina, 7,000 students showed that, you know, from the time they started as freshmen to the time they graduated, there actually was pretty little change in their political perception. They didn't suddenly become raging liberals or aggressive conservatives. It didn't happen. They came in with pretty set ideas. But the one thing that did change is they became a little more tolerant of different positions. And that should be a goal. That should be a good thing. So, again, one of the terribly disturbing things that's happened in schools now is I think concepts are being misrepresented. Higher education was to be to help students form critical thinking skills. I did not say, I did not say critical race theory. I said critical thinking skills so that you could hear a commentary put before you, recognize it as satire, recognize it as someone actually presenting information. And you are not supposed to agree with it wholesale. You are supposed to look at it and say, these are pieces that I agree with. These are pieces I don't agree with. I have formed my own opinion. And that narrative seems to be getting lost. It's interesting you mentioned this term indoctrination. I'm very much aware of a school on the West Coast that one of their leaders told a conservative art newspaper, it was a newspaper from the magazine, Project 1619 is indoctrination. And this is one of the reasons why the US is in the position that it's in now. Not maybe, but Project 1619 is leftist indoctrination. And instead, let students read the book. Let them explore the concepts. They can agree, they can disagree. But this opportunity for critical thinking is being set aside. And it makes me wonder, I think young people are vigorous enough that they will find a way they're innovative enough. But if our institutions of higher learning are literally trying to shut down the opportunity to expand and know what it means to be a critical thinker, we're in trouble. Well said, Tina. So much of what we're saying here about basically canceling the truth, canceling the real narrative and just making up a narrative is not going to go over well with the next generation. We've said before in some of our other sessions that this is the generation that does not bow to tyranny. They will find a way to bring the truth forward and to continue in truth. In Florida, you have four HBCUs, four historically black colleges and universities. So in those institutions, well, and obviously other institutions, but I'm speaking specifically about HBCUs because they are majority black and brown students, minority students. These institutions were founded to educate freed slaves because they weren't allowed in mainstream educational institutions. And so we're, you know, you have to consider specifically historically black colleges and universities in a state where black history is being canceled and changed. I can't say canceled or changed. I would have to say canceled and changed. It's very disturbing. And as we've pointed out in this conversation, there's a need for our students in education, in the educational system, in the higher learning context to be able to have a discussion, to get information, to think through it, to have conversations where they can learn from one another. You know, students have different backgrounds. It's just a very disturbing time in history that, you know, diversity initiatives are being canceled. And, you know, the history, as it really happened, is being changed in order to create a narrative that makes a certain group of people comfortable. It's really very scary. You know, my understanding is that at least I believe that in a democracy we need critical thinkers. And we need people that can take in information and assess it and make judgments about it. And, you know, in July 2023, we're going to need more critical thinkers because we're in a period of AI. And AI's ability to present information in very credible ways, to use images, to use voice, to make it seem exactly like I'm saying something in front of you. When I never said that, it'll be almost, it will be indistinguishable. And now it's going to be just a question of, do you know the source? And does that content sound right? Now, is that something that this person would be saying? So I fear that to the degree that we're not asking our students to be critical thinkers, that we're going to have a deficiency in our ability to kind of sort through the information that's coming to us, that's going to come to us in more persuasive and deceptive ways than we've ever imagined. And we really need to be prepared for that. So that's one thing. And the other thing I wanted to mention, picking up on what Rebecca said about history being changed. I don't want to smile because it's kind of horrifying. But in Florida, students now are going to be instructed that they have to be instructed. And if you're going to talk about slavery, you have to talk about the benefits of slavery. Are you serious? It's like, talk about the skills that you learned as a slave and how that could benefit you. How's it going to benefit you? You're going to go out in the market and get clients now that you've learned a skill. Is that how slavery works? You can start a business. That's not how it works. The idea that somehow you're going to benefit from slavery is it's insulting and it's frightening. And I think that we're telling little kids that. To me, it's unimaginable. Completely, a complete revision. And it also dismisses the work that was done of abolitionists and those who literally wanted to make the truth be known about the horrific images, the horrific lifestyle and the lives that were lost and damaged as a result. For generations, I mean, this is, Chuck said it earlier, not just not for decades, but for centuries. 16, 19 was over 400 years ago when the first enslaved Africans were brought. Went through the transatlantic slave trade and were brought over to America. My original ancestry, I did an ancestry DNA, and my original ancestry is 70% West African, Ghana, and Nigeria, and then a smattering of some East Africa and other places, African countries. And then the map takes us over to Europe. Now, I wasn't there, but I'm pretty sure that this big group of my ancestors didn't go over to Europe voluntarily. They were taken from their home. And I mean, the history of how the slave trade was done, and what happened to those people has affected us all over the world generationally. It is, you know, we've moved backwards with this new legislation. Hearing this, it makes me think about every person of color, those who are of African ancestry, but also our First Nation people who literally were marched from East Coast to West Coast and told to adapt. It also makes me think about those who came in later ways, especially those who came from what we would consider Asian countries, and the treatment. And just literally, this is why I keep saying revisionist history, because it's literally just saying, you know, none of this happened, folks, ignore the man behind the curtain. Everybody was happy, we all got along, and it was this Norman Rockwellian community. But if you read books like The Warmth of Other Sons, or you read about the Red Terror, you know that this was not the case. And to literally hide all of that, every single one of us who's a person of color becomes a hidden figure. Well, and it's like, it's like the saying, if you can read, thank a teacher. And here we're saying, if you have an occupation, or if you, if you have a trade, or if you own a business, thanks slavery. Because yeah, this is how we taught Black people, who by the way already had businesses and everything else over in Africa and their original land. We taught the people over here how to build. The White House was built at the hand of slaves. There's so, you know, so much of our country that was built by the hands of slaves, you know. So yeah, we taught, and I'm speaking in solidarity, but those enslaved Africans were a big part of the system that taught people in America how to build and how to do business. But we're kept from all the benefits, but they were kept out from all the benefits of having, owning a business and building a business and the economic system. And maybe that's a key part of the core connection. You've got hundreds of years of history of non-white Americans being treated incredibly inhumane, brutally inhumane, subhuman. And you've now got the people who are from that dominant group who are not going to be the predominant demographic group in the next 25 years or so, who are saying, we're not going to acknowledge that, we're not going to remediate it, we're not going to correct it. In fact, we're going to exactly, as you said, reverse and revise any stories that are inconsistent with our primacy. You can't go back there. It's not necessarily going back, it's not going forward. It's like, I'm going to hang on to the bitter end. I'm not going to adapt, I'm not going to change, I'm not going to evolve. I kind of like the way things were. I'd like to have more opportunities, but I don't want to let it go. So as we think about what the U.S. Supreme Court has done, I hope that people still think about the value of diversity. And maybe it's going to be a little harder to expose our kids to it based on what's happening in the schools, but that's not 24-7. A lot happens outside the schools. And I hope that if you believe or sense that your kids are not getting the kind of education you'd like them to have, that we can take a little responsibility on themselves to expose our kids to different environments, different populations, because we can do it. It doesn't have to all be on the schools. So on the one hand, let's work hard to make sure schools do recognize the value of diversity and don't let the courts pull us back. But on the other hand, take some responsibility to make sure that we introduce our children to diverse cultures. Exactly. And in our last minute, Rebecca, any last thoughts you'd like to leave us with on this? You can't legislate a mentality. People who believe that other groups of people should be subjugated, we can only fight that. I mean, we can't, apparently, when there's a majority that is in favor of keeping confusion and keeping people separated, we just have to continue to speak out against it. We are in the midst of social revolution. This conversation is not ending. This is just the beginning. What a great way to leave us. Thank you all for joining us. Think Tech Hawaii. Gives us some thought. Share it with the people who matter to you. And remember that in 25 years, we're not going to only be a country of more non-white people than white people. We will be a country in which the proportion of people who are a mixed ethnicity and race and sexual preference and other differences will be far greater. That will be the majority. How do we enable life to be one that respects the humanity of all of us? Thank you all. Think Tech Hawaii. Aloha and be well. Thank you so much for watching Think Tech Hawaii. If you like what we do, please click the like and subscribe button on YouTube. You can also follow us on Facebook, Instagram and LinkedIn. Check out our website, thinktechawaii.com. Mahalo.