 Anticipating the decision on affirmative action is our subject today. What does it mean for the education of America? Here on Community Matters, I'm Jay Fidel. This is Think Tech and our special guest is Vernon Schaar, an attorney who has been through a lifetime of practice and who graduated from Harvard Law School and who was interested in affirmative action and the issues before the Supreme Court today. Welcome to the show, Vernon. Thank you very much, Jay. Thank you for having me. So we have a picture of the Supreme Court and on the edifice there, it says equal justice under law. And that would mean, at least at a superficial level, that everybody gets treated equally. So if I say everybody gets treated equally, then maybe affirmative action is not equal. How do you reconcile those two things? I think affirmative action is an effort to balance or rebalance a situation, in this case, race. It's an effort to correct a prior wrong, such as the blacks or the Native Americans who may have been disadvantaged in the past and giving them a leg up by putting them into places like schools or colleges. It's an effort for social engineering, so to speak. Yeah, social engineering, balancing, rebalancing, taking a look at the last 400 years and seeing what we need to do to the product of that 400 years to make a balanced, social, equitable arrangement in this country. You know, I would say that we don't have that. And it's up to the Supreme Court to help us go there. But all the indications from reading about the arguments are that they're not likely to respect affirmative action. They're likely to break affirmative action. What's your expectation about this case? Well, I would agree with you in reading the evolution of cases over time. I would predict that you're correct that affirmative action will be knocked out. In other words, race will be erased as an affirmative action in educational settings. I was telling you before the show there's an article in The Atlantic today. The author talks about violence in the country and the remarkable increase in violence we've had in so many cities. Even this past week, we've had three or four mass murders. And the number of incidents is increasing. And it's spreading all over the country. And the author reminds us that we're not going to be able to solve this superficially, that we have to deal with this de facto segregation, particularly with respect to African-Americans, but all groups in this country before we can start to tackle the question of this increasing violence. So it's beyond looking at guns. It's a matter of finding a social balance, as you said. Do you agree with that, Arthur? I think a lot of what's going on today is a reaction. It's a rebellion. And so how do you strike a balance? And I guess the issue here also is, is this to be determined by laws or by interpretation, by the judge on what is appropriate social engineering? In this case, let's stay with race. That race is the issue. Is this something acceptable where the court should make a decision? Or is it something that the government in law should be making a decision on? Is there been too much emphasis on affirmative action? And this is a rebellion against that. I noticed that in many of the cases that you had pointed out, and I didn't realize this, after the decisions on affirmative action in colleges, many of the states, I think there's eight states, nine states, that have come out with laws, including their own state constitution, banning affirmative action. That affirmative action by laws or by governmental fiat should be removed. And so I think that raises further complexity to the whole situation. And looking at the cases, the argument seemed to be made, including some of the judges, that if you remove affirmative action, you cannot adjust the social imbalance adequately without taking race into consideration. On the other hand, some of the tests that have been coming out are so broad that it becomes unsupportable as to how you handle race without calling it race. It's a real enigma. Yeah. I think it's clear, in some of the decisions, that if you strike affirmative action, you're striking more than the social balance. You're striking the careers and the leadership of the nation. In other words, without giving Harvard too much credit, I think it's fair to say that the leadership of the nation comes out of the best schools. And if Harvard is one of the top schools, then the leadership of industry, of government and all the other places we find leadership in the country comes out of those schools. And if you don't give an appropriate measure, if you don't allow African-Americans, for example, to attend Harvard, or as many as have been the case, then you're excluding them from the future of the country in terms of leadership. And I think that's pretty clear because there won't be as, here's this, there won't be as many African-Americans at Harvard when you strike affirmative action. I think that's true. I remember I was in the service, I was in the Coast Guard during Vietnam and somebody decided, I guess it was during the Johnson administration, that the Coast Guard did not have enough African-Americans. And we had to fix that. So there was a directive came from Washington within the military, said you will now commission X number of black officers into the Coast Guard because there weren't enough in somebody's opinion in the administration at the time. And the Coast Guard did that. It was not painful. It changed the complexion, literally, of the Coast Guard. And now the Coast Guard was a more fair representation of the country. And the leadership in the Coast Guard was a more fair representation of the color of the country, so to speak. And so it does work. And it does mean that leadership can be from all sides. And the average black citizen can say, I have a chance here. I have an opportunity. I'm not being held back. I'm not being sidelined. And I suspect that the same thing happens with affirmative action outside the military and in the colleges, in the colleges that are willing to do it, in the states that are willing to let the colleges do it. How did it work at Harvard? You preceded affirmative action when you went to school, right? Yeah, so I think the argument you just gave is exactly the argument that was put forward by Harvard or the Solicitor General saying that you need to have, to make a better society, to make a better university, you need to have affirmative action to have more blacks and Native Americans there. And the only way you can do it is by considering race. That certainly is a good argument. The problem, I think, that most of us are having is who should make that decision? Is it the laws, the legislature, the courts, or the university administrators? And how do you socially engineer the situation? Should you have 50% blacks at Harvard rather than 20%? Who makes the decision on the percentage? And if it's blacks today, is it Native Americans tomorrow? Is it they and lesbian, LBGT people the next day and then Micronesians the next day? How should the government or the college administrators get into this field and how do they do it? I think Harvard now does it as sensitively as one can by saying it is only a consideration, a factor that they can look at as distinguished from the Texas case, which was just four years ago, where they say actually that they need to have more blacks at Texas or minorities or having society or the military or the business community more attuned to racial dealing with racial disharmony. It's a very complex issue. I don't know how the court's going to come out. I suspect the court in this case is, and that's another enigma to me. If the law is correct that there should be more attention given to minority race, then why should it change when the Supreme Court justice has changed from five years ago to the current time? And I think the prediction now is that you're right. I think they're going to strike down affirmative action, even in the Harvard sense of making it just one factor of consideration and not a quota. But does that make sense that today with this new court, affirmative action is not good? But five years ago with the prior court when Ginsburg was there, it was a good thing to do. How do you reconcile that? I don't think you can. The fundamental thing is racism. I think it reflects that this conservative court is racist. And it's going to pop up wherever it pops up. And I can see racism in the Dobs decision. That decision is based on accentuating the disparity. And this will accentuate the disparity too when they make that ruling. The other thing that troubles me is we're talking about the new federalism. And the new federalism is you take a federal position on things when it suits you. And when it doesn't suit you, don't take a federal position on things. So for example, you say, well, we want the states to decide about abortion. But we are going to let them, in fact, encourage them to do that. At the same time, why can't the states decide affirmative action too? Some states, some of those colleges you mentioned, which have set aside affirmative action, they did it because the legislatures in those states, which were supporting those schools, said you can't do it anymore. So in that case, the states decided. But here, the Supreme Court is on the brink of deciding by itself. So where is this? Is it federal? Is it state? Is it a combination? How do you know? And therefore, you have to look beyond that, I think, and look at the real goals are. And their goals, in this case, I believe, are racist. So the other thing you mentioned that I like it well on just for a minute is this is very complex. It amounts to an algorithm. And an algorithm has so many variables and so many tests and so many confirmations within the formula. If you wanted to write an algorithm about Harvard or North Carolina, it does this sort of thing. It would be complex. And is the Supreme Court saying they want to get into that? They want to be involved in writing the algorithm? They have no capacity, zero capacity, to write the algorithm. And then when they finish, there'll be the whole question of legacy, where Harvard has a special category. You can have an advantage if you apply. If your parents or grandparents or uncles and aunts went to Harvard, which I always really wondered about. So when the smoke clears on affirmative action, there still would be legacy. There will still be an algorithm, but you pull the race out of the algorithm. And therefore, you pull the possibilities, the opportunities of the African-Americans, and as you say, the indigenous people out of the formula. So the Supreme Court would be writing, or shall I say, rewriting the algorithm in this decision that we expect from them. Shouldn't they leave that to the schools? Shouldn't they leave that to the states? And finally, let me say this. A lot of this is subjective, isn't it, Vernon? It's subjective on the part of a few administrators who are handling admissions. And that's not going to change. And so when they see a photograph, for example, of an applicant, they're going to consider it, whatever the Supreme Court says. The problem is it will be irregular. It will be subjective to the point of each admissions if the officer on his own or her own. So I see chaos coming out of this. What do you see? I think that is probably the case. But I think you need that because I think the kinds of discussion we're having today is important to take a look at and to evaluate. You've raised the issue of federalism versus the state action. I think there's another denominator in that is whether either of them should get involved and whether or not it should be the people, the individuals. Look at all of these cases now. We have to go back to why the Supreme Court is there and it is specifically on the 14th amendment that the state cannot discriminate either in enforcement or in passing laws and the state cannot treat the population equally. So going back to that test, I think one needs to look at the underlying treatise as to whether individuals should make that decision rather than the college administrators or the legislature or the Supreme Court. Let me raise another issue that I think on this complexity, should Harvard be any different than North Carolina? North Carolina is a public school. So you can get the 14th amendment there. What is the application to Harvard? Is it private school? Shouldn't they be able to make their own decisions? But Harvard does get federal funding from grads and such. So is that enough so that they should be treated the same? Yeah, it's very good questions. More questions. More questions. I don't think the Supreme Court, especially the conservative majority, has the capacity to wrap around all of these issues and come up with a fair decision that applies policy across the whole country. And I feel that what they're gonna do is going to make a mess is what's gonna happen. That's my own prediction on it. But let me ask you this. We talk about the African Americans, we talk about the indigenous, the Indians and whatnot. But we haven't mentioned the Asians. And a lot of the people who have the benefit of affirmative action, at least theoretically, are Asian applicants. On the other hand, there are people who say, well, the Asians, they study hard, like you. And they do well in school and their applications are impressive. Why do we need to give them affirmative action? Well, if anything, this is where I think very cleverly, the plaintiffs in the Harvard suit is raising it on behalf of the Asians saying that you are now being discriminated against. The Asians at Harvard are viewed the same as the white people in the Baki case or the Bollinger, the Michigan case or the Texas Fisher case. They've turned it on their ear because they're saying now that Asians, because it fits the mold of good grades, good SAT national exams, a lot of extracurricular activities, they've learned the formula and therefore they should get in ahead of the black who may have less criteria. And so I think it's very clever the way they've raised this. It really is an Asian issue at Harvard. I don't know about North Carolina, but then therefore they're saying should race be a consideration at all. It's my understanding at the California school systems now that the Asian, the Chinese, Japanese, Koreans are far in greater proportion at the University of California schools than their proportion in the population. And that I think is in part with the state statute that they banned affirmative action. Query whether the same would not be true at Harvard if that were the case. Well, and then there's this whole notion of these. There were two cases, they're probably gonna be split because Justice Jackson has recused herself on one of them, I guess it's the Harvard case. Phil said on the North Carolina case, but not the Harvard case. There are two separate cases now, which sounds right. I mean, recusal is something the Supreme Court seems to have forgotten about lately and good for her. But what I get is there's two states involved, two educational environments, but there's another thousands of colleges around the country that this decision will affect or directly or indirectly, I'm not sure how. And I wonder if you have a sense, let's assume for a moment that the Supreme Court decides no more affirmative action. You must be completely colorblind in your admissions process. How does that affect American education? I'm not sure how they're, because in these various cases there's been various tests that have been tried or issues versus in Texas, I think they definitely say race was one of the considerations, but that was for the 25% that were not automatically enrolled because they were in 10% or 7% of their high school class. I'm not sure anyone's gonna be clever enough to be able to figure out a way of getting to the disadvantage without looking at this race issue. I just don't know. Let me offer you a piece from the future, if you will, an issue from the future. Let's assume I'm white and I see a school in which the admissions officers are de facto giving a break all by themselves affirmative action or not, and it would be against the law under this Supreme Court decision we expect. And I see an admissions office that is, in my view, giving a break to a minority group of some kind. So, and I don't get in. I do not get in and I'm ticked off about it. So I sue, and I sue and I say this school is not following the law as laid down by the Supreme Court. They are favoring African-Americans. They are favoring Asians. They are favoring indigenous people. They're violating Supreme Court's decision. Then here's some numbers. You know, I'm gonna do a little discovery and find out what the numbers are. I compare the numbers against before and I am suing the school. And I suggest to you, Vernon, that the people who have opposed affirmative action or either they're plaintiffs or representing the plaintiffs in the case now in front of the corner, you know, looking at them a racist point of view and they would be people all over the country who would likewise look at them a racist point of view and they would be suing all these schools where they suspected right or wrong that the admissions officers were taking race into account. Wouldn't you expect a number of cases of litigation matters to arise from the decision we expect from the Supreme Court? I don't know how this courts would handle it. Or they'd be able to analyze whether there has been discrimination or not. You know, you raised another allied point was the legacy students versus the, you know, I think Harvard now has a program where they favor a number of students who were, you know, first time in college, but parents never went to college. So they're trying to reverse the other side. As we go through this, it's gonna be more and more complicated as to how the courts would even be able to analyze or how someone would be able to make an argument. All of the other cases so far, the Fisher, the Babaki, the Bollinger cases, all have specific, I mean, the admissions officers were very candid about the situation. But Harvard now, what they say is that minority, race minority is a consideration, but it is only a consideration. It's not definitive. So I'm not sure how someone can show otherwise that they have a higher SAT score or that they have a higher high school graduation score. It's gonna be more and more difficult to... Yeah, especially with the courts looking over the shoulder of the admissions officers on anything. And I think my early point is this will open a channel for examination and re-examination of whatever algorithm the admissions officers use and it's not healthy. The schools ought to be able to have some autonomy on the subject in my view. But let me go to a larger issue where we have to close after a few minutes. And that is the Supreme Court itself. Here we are, we know what they said. We know the recent background of their thinking. We know that they're a conservative majority. We know they have problems about ethics and recusal and the paper in the past few days have been critical of Samuel Alito for the possible leaking of not one but two decisions for strategic purposes from the Supreme Court. So the court is under attack, I would say, and public confidence in the court is at a low ebb. When you and I went to school, we had ultimate esteem for the court. Right or wrong, they were the top of the line. And now I don't feel that way anymore. There's a lot of people I know. There was one lawyer, a district court judge who resigned from the Supreme Court. He was so offended by what he saw was going on there. That was interesting. And he published his letter of resignation. And so, we've had to talk about packing the court. We have to talk about the current limits to less than life. We have a lack of public confidence. At the same time, people seem to be saying that the court is out of touch and that the present configuration is out of touch with these important dramatic, profound changes that are happening in the country. And they should be in touch, but instead they're off in their conservative corner. And I wonder what your thoughts are about that. How is the Supreme Court doing? What is the signal for the future about the respect the Supreme Court has, not only from the bar and the rest of the judiciary, and for that matter, the legislatures. What about the people? Who would be feeling differently about the Supreme Court now? Yes and no, I'm prepared to give the benefit of the doubt to the justices and their respect for the institution. As a, for instance, I was really interested and pleased to hear that Scalia and Ginsburg, who are about as arch-conservative and arch-progressive justices as there could be at the time were extremely good friends, socialized, went to the opera together and had great accord with each other. I've spoken to Scalia and he confirmed that there was a real collegiality and that much of the arguments or distaste of what have you against each other was manufactured by the media and it was not true. I don't know if that is the case still today. I'm willing to give it a benefit of the doubt and hope that collegiality still exists, even though these things that you've mentioned, the leaking of articles and so forth are troubling. We'll see, I'm hoping that the Supreme Court as an institution succeeds especially because we have so much difficulty with the executive branch at this point. But we'll see. Yeah, we'll see, we'll have to watch. We'll have to watch the opinions and this particularly the affirmative action opinion. So we've guessed about- You said Jackson was gonna recuse yourself from the North Carolina. I mean, just the Harvard, but not the North Carolina case. Yes. Not sure how she, I mean, there's so a lot, I. Oh, there's a, one is a private school, the other's a public school. Well, maybe on that basis, I know for the Harvard one, she was on the board of overseers at Harvard. Yeah, that's the reason. Yeah, okay. Well, it'll be interesting to see how that decision plays out if there are two separate decisions. And as you say, if she does the North Carolina, so that might be interesting. If you sat Vernon on that court, how would you rule? And what would your justification be? You know, before this week, and just when you first talked to me about this interview, I would have said affirmative action, keep affirmative action, Harvard's doing a good job on it. After reading all of the decisions, I could go, I'm 50-50, I don't know. My mind is open and I'm willing to hope that the courts, but the admissions officer will find other ways of so-called balancing the admission policies. I just, it's interesting. I think things have evolved. I think more importantly, if you were to take that and transpose it to Hawaii, what would the situation be on Hawaiian programs and Hawaiian admission and the requirement to have Hawaiians and all boards and commission, is that a good thing or not a good thing? So I become a little more introspective in looking at these things on the issue of race and also from my own experience of being one of five Chinese or Asians in a class of 526 back in 1956 to probably when my son attended law school there, much larger percentage. And I think today, the law school must have Asians, maybe 25% of their student bodies is Asian, probably disproportionate to the population. So I don't know, I don't know about it. Let me offer you one thought. That is, we learned in a sense from the Dobbs case that the devil can be in the detail. We know where they're going ideologically. We know what their fundamental concerns are. But it's how they say it, how they justify it and the exact order they give because everybody in the country will be reading that. Everybody on every campus will be concerned about following it or not. And so it could be a relatively soft landing or as I said before, the possibility of chaos. You agree that the devil would be in the detail? I agree with you. Yes, I think it would be very important how they craft the decision out of this. You know, the cases, for instance, with the Fisher case or the Baki or the earlier cases have always been split. I mean, it's like four to three and it'll be important how they rationalize it because I think from an institutional standpoint, it's important that the Supreme Court be looked at as having a wisdom of being able to handle all of this. I don't know. The jury still will see what the decision comes out as. And on this one here, I think it's going to be a close call. Roe v. Wade, I'm totally against that decision, but I think it's important that we respect our Supreme Court. Well, I'm only sorry you're not on it, Vernon, but you've made your choices along the way to practice law instead. I would be somewhat comforted if you were on it, actually. I think you are an oracle of wisdom and when the decision comes out, I hope you'll join me again. We'll take a look at the language. We'll parse out exactly how they crafted it and we'll try to figure out how that will affect the country and education in the country and Harvard and North Carolina and every other school. I hope you'll be available for that. Thank you very much, Jay. It's always a pleasure to talk to you and I appreciate being asked. Thank you, Vernon Shard. 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 and LinkedIn and donate to us at thinktechhawaii.com. Mahalo.