 Tech Hawaii, time for responsible change, and today we're going to talk about what's the big deal about diversity? Why is it important and why is there so much controversy and conflict over it? With David Larson, Professor at Mitchell-Hamlin School of Law and recent past chair of the American Bar Association, second of dispute resolution, and Rebecca Ratliff, who's had many years dealing with the executive level of the insurance claims industry and is herself a leading national and international mediator arbitrator and presenter and speaker on this topic. So let's start from the beginning. In the recent U.S. Supreme Court case in which they essentially threw out remedial affirmative action for 200 years of history of racial discrimination in educational institutions, one of the things that became an issue was the original affirmative action decision, Baki, rejected a number of the theories of what could constitute a compelling state interest that could be constitutionally protected and legally protected to try and remedy that historical inequity and inequity. And Justice Louis Powell, in a concurring, but what turned out to eventually be the accepted guiding theory for the case said, okay, but diversity is a legitimate compelling state interest for a learning environment and learning institution. And we can treat it as such for purpose of its constitutional and legal protections. Justice Roberts in throwing out affirmative action rejected diversity not because it's not a legitimate state interest or a learning environment interest, but because it's not juditionally measurable in his view, which may just mean that he and some of his colleagues don't understand it well enough to be able to determine whether educational institutions are implementing it or not. Okay, with that preface, David, where are we on diversity? What's your understanding of the diversity that is that issue and needs to be protected here? Yeah, I'll just mention that. As Chuck just explained that up until this recent Supreme Court decision, the Supreme Court after Bakke was willing to accept the idea that diversity is a compelling governmental interest. The students for fair admissions case that was just decided doesn't get rid of remedial affirmative action. The only justification for affirmative action in employment has been a manifest imbalance in a traditionally segregated job category. You can only justify affirmative action in employment when it's remedial. That avenue is still available for schools. You can have affirmative action if you're going to point to a remedial cause, a remedial explanation. You've followed the same precedent they do in employment. You would have to demonstrate this manifest imbalance in a traditionally segregated category, but for a lot of schools, I think they could do that. I don't think that's really been discussed or explored yet, that parallel to employment, but that's still there. The thing about education was that it not only had that possibility, which is a little more distasteful for the institution because the fact is, you've got to admit that you've got a bad past. You've got to go back in and look at your own discrimination and fess up. I would much rather justify it for reasons forward looking like diversity. Nobody was going there to the former one saying that, yeah, I'm going to justify it because I've really been bad in the past. They would say, I'm going to justify it because I really believe in the benefits of diversity, but now that's been taken away. Is the workplace different than an educational institution such that we should have two acceptable reasons for a form of action? Yeah, I think you can make a pretty strong case that, yes, it is different. That young people will be assuming leadership roles when they graduate from college that it'll be their world. We won't be here eventually, hopefully for a little while still, but look at the United States and our demographics have changed pretty significantly. In Minnesota, for instance, our demographics have changed pretty dramatically in terms of different races and ethnicity. People coming out of college have to be able to work in a multicultural, multi-ethnic, multiracial environment. The earlier you get started doing that, the earlier you become comfortable doing that, I think the better off we all will be. To me, that's one of the values of diversity, the fact that we will continue to live in an increasingly diverse world. Where do you learn the skills to do it? Well, hopefully at home in your family, but not always, and isn't an educational institution a good place to do it? So, yeah, I think that's a great justification. Yeah, you took fours out of my mouth, David, although you were much more thorough and eloquent. As you were speaking, I was thinking how important it is. We know that not everyone will go to college, but certainly everyone should have the opportunity in the United States to go to college. And when there is a diverse environment in college, it is a training ground for how students' future working adults will thrive or not in their professional environments. And so, what we've said when we've heard, I didn't make this quote up, but diversity is a fact. We are different as people. I had a conversation recently with someone who, her dissertation was on culture and race. And what her research turned up is that race is a social construct. There really is no such thing as race, but only really culture. And race is something that was created really to divide. And so, here we are, all different hues and different experiences, different skill sets, different family orientations, different, differently abled people. And we all have value. And because that's a fact, when we're together, those different perspectives and those different experiences, whether it's in a college, on a college campus or in a work environment, certainly makes the experiences more rich and enables really, well, in the work world, profitability research has shown that, but certainly a richer experience in community and the at the collegiate level. So, is that a potential avenue as well that you, instead of focusing on this artificial construct of race, you look at some other non-academic factors, culture, socioeconomic background, other attributes of the nature of the environment, the history of the applicant, of the potential student in an effort to create as heterogeneous, as diverse, a learning environment, human learning environment as possible? I think you're always well advised to be creative when it comes to thinking about what could be a possible compelling governmental interest for going forward with the front of action. But I do want to make the observation that this US Supreme Court decision did not completely close the door in the front of action. And basically what it did, it narrowed the kind of the window for having a front of action. And I think the takeaway from it is that people can talk about race and people can talk applicants to college, can talk about race and talk about how race affected their life and what challenges are presented. And that's perfectly fine, according to Roberts, so long as it's from an individual perspective. It's like, this is how it affected me. And these are the qualities that grew in me and matured in me because of some of these challenges. And an admissions committee can't look at that. And when they look at that, they are unavoidably considering race, not in terms of just kind of a stereotypical assumption that if you're a certain race, we're going to give you a certain number of points that are admission and we're going to give you a cumulative score and this will get you over the line. But it's just a much more focused, particularized kind of inquiry. So race can still be part of the admissions process, but it has to be more of an individual inquiry. And there's nothing to stop an institution from framing those questions to say to the applicants who, I don't know why they know, they wouldn't know what they need to write in their essay to make sure that they don't follow a skew of your Supreme Court decisions. So you ask the question. So you ask somebody, and what challenges have you seen in your life that motivated you, that changed you, that matured you? And they conclude things like economic challenges, geographic challenges, and race. And there's no problem with asking that question and asking people to answer in a very individualized way. And I think that fits well within that exception that Roberts has. I really appreciate that point. David made that point in an earlier conversation today about how applications can frame a question in a certain way that is compliant with the decision from the Supreme Court, but can basically open the door for opportunities for applicants to state as an individual what challenges and what experiences they had that may have to do with race. And it's important that, I would like for you, David, if you could just briefly mention Justice Roberts' decision or his letter, the statement that he makes that actually is the window for the point that you're making here about how universities should, admissions offices, can be in compliance by asking, framing a question a certain way to give applicants an opportunity to make a statement or personal statement. You're looking up on the slide. Wherever your city is to speak, so I could find a quick, I could read it to you, but let's see. Okay. At the, so what Robert says at the end of the majority opinion, at the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. So that's, I mean, that's kind of an irreplaceable window there to say it's an invitation that that universities can consider so long as it's somebody talking about how their race affected their lives. So here's a question that comes up. We know that Blum is out there with his millions or billions of dollars hunting down people who will agree to be paid plaintiffs in claims against actions that are essentially intended to be remedial for hundreds of years of history of racially discriminatory employment, educational admissions, health care, housing, and other areas. Is the approach that you talked about an effective resistance against that kind of attack of disparate impact that it's excluding brilliant Asian Americans or brilliant white Americans or whatever? Well, you know, I just thought that affirmative action was kind of a misnomer that really it's and the reason we have this process is because it's, as you mentioned Chuck, it's it's remedial. I mean, it's because of, you know, it's trying to make up for discriminatory history. And so it's not affirmative in the sense that you're getting something as an advantage that out of the blue, it's like, it's not a bonus. It's really, it's really being generated by the by the recognition that certain groups have suffered from discrimination in the past. And it's really incumbent on us to make up for that to do better. So you know, I think when some of these groups are being so aggressive about condemning affirmative action, one thing we should do is step back and say, well, wait a minute, is it really a quote affirmative action or is it something else? So really more along the lines of a remedial action. And let's think about our nation and our history and the reason why this really we really need to do this. Rebecca, your thoughts? Agreed. Yeah, it's a way to really right a wrong and to address accessibility or pass inaccessibility. You know, and you know, there's other things we can do in spite of this decision. There's nothing in this decision that prohibits you from doing extended outreach, you know, and going to recruit students in areas maybe you never recruited students before. So one thing you can do is kind of increase your applicant pool, expand your application pool, you know, increase your increase your your recruiting by outreach, maybe set up some pathway programs where you where you identify potential at a relatively early point and try and give some mentoring. At the conclusion of that pathway program, then that person applies like anybody else, but they're much more well positioned than they were before. And they're going to be able to keep people more successful. So that's that's something else we can continue to do. And I don't think we have any problem with the students or favorite admissions case. One of the things that we brought up earlier to us historically black colleges and universities or HBCUs and the effect that this decision might have in reverse for students applying to colleges and universities who are not minorities, that's not even really a word that we use much anymore, but black and brown students are the majority at an HBCU. So for students who are seeking admission, who are, you know, not black or brown, then, you know, what what are the possibilities for litigation or, you know, issues that that will arise around students seeking admission who are who make reverse claims of, you know, of failure, you know, or lack of access. You know, I think that as we discussed a little bit earlier today, I think that historically black colleges actually have been kind of attentive to that and actually have thought about their practices and actually have made some made some changes, a modification just to make sure they're not caught in that kind of situation. So what if a historically selective and historically predominantly white college or university that decided to engage in some exchange programs with historically black college and universities and said, okay, we're going to have semester programs or we're going to have one year exchange programs or maybe more. We'll see how that goes to contribute to exchanges for the benefit of diversity. Was that one? There is. Actually, you can, my son is a graduate of North Carolina Central University, which is an HBCU. And there are certain, they have a relationship with Duke right up the street between Central and Duke. There are some Duke students who take classes at Central, and there are some North Carolina Central students that take certain classes at Duke. I don't know in what subject areas, but those relationships exist as far as mutual privileges, campus privileges, they have a relationship. And I don't know if there's a formal exchange. I'm not actually sure what they call those privileges, but there are relationships that exist like that. Yeah, when I went to college, I was part of a small college consortium, Great Lakes College Association, and I was at a very conservative college. I don't know why I ended up there, other than the fact I went to high school with 5,000 kids, no college counseling. Most kids didn't go to college. I just went down a college night program, went to one booth, told them my ACD scores, they said to get a scholarship. I would all tell my dad, I guess that's where you're going. So I ended up at the Paul University, and it's very conservative school. I wasn't comfortable there, and I did an international exchange program with Antioch College in Yellow Springs, Ohio, which is far other end of the spectrum. And my financial aid transferred, so it was just an open exchange program. So yeah, so I think Chuck, that's a great idea to get the person to do those kind of exchange programs. The only drawback being is that we know that the degree, the paper, the degree has a lot of value, and it's been a number of studies that look at people graduating from elite colleges and what's their income going to be ultimately, and it makes a difference. So even though you can do the exchange program and you get some advantage of diversity of both institutions, the lesser of two institutions in terms of national rankings for whatever they're worth, is not going to graduate with the degree. And I think that that's the trap to say that that's sufficient because now we're getting diversity, but those students still aren't getting some of the benefits of the degree. It's a good point. Yeah, that is a really good point. And so you might have to look at things like where the exchanges were at the undergraduate level that those who hadn't participated might have that work to their advantage for purposes of graduate school applications or admissions. I love these talks because we just gotta think out loud, but I think there's one thing that could happen is you have these exchange programs and maybe somebody comes into a more elite school and does really well. And so now it's now it's that, okay, I'm accepting you because of your grade point for the year you were here. So you demonstrated your academic qualifications. You didn't get here on a race-based program. You got here on this exchange program. You weren't admitted on a race-based program, but you were able to show what you can do at a school and now we're going to admit you on your performance. And I think that might be a way to get around that concern about not getting access to this degree. Well, and I love that because it gives the opportunity for performance to those who have traditionally and historically been excluded, dishonored, dehumanized, disrespected, underserved. And based on that performance, you're moving it back to a merit-based admissions. And one of the things that schools are doing that recognizes that certain non-academic factors have had somewhat racially disparate impacts, the legacy program, a number of colleges now, including the one where I attended, Carlson, not far from you in Minnesota, is essentially completely discarding their legacy program. Now, many schools are. There was an interesting article in the Chronicle of Higher Education in August that looked at the eight Ivy League schools and Stanford University of Chicago, MIT, and Duke. And they looked at their legacy programs. And it turns out that you're five times more likely to get in if you're a legacy to those elite institutions. And that should be disturbing. That should be disturbing to everybody. You know, the other, we'll go ahead. You know, if there's thinking that exchange program, okay, so we're going to run the exchange program. We're going to let people come and enter academic programs so that they do really well and say, okay, we're going to admit you to our full-time degree granting program based on your performance. One concern may be that this is not a traditionally diverse community at this college and somebody who is coming from that environment suddenly may feel really out of place. So I think what you need to do is, again, provide some support for those individuals recognizing they're coming from a different environment. And I think that's part of it. So I really think this could be a successful approach, but it's got to be brought thinking. It's not just admit them and let's see how they do. I think you've got to pay some attention to what their life is like at the university. Yeah. Yeah. There needs to be, yeah, with that approach, there would certainly need to be support and development. And that's a great argument for opening the exchanges beyond just the student level to faculty. And we know there are exchanges among a wide range of universities, the faculty, faculty, student-guest, professorships, sabbaticals, things like that. But administrative and support services, the learning opportunities there really haven't been tapped yet, as Sharns can tell. You know, we talk about the elite colleges. You know, we should talk about their endowments. You know, we're talking about endowments of $25 billion, not billion, billion dollars. Yeah. So there is a lot of money there for support and for outreach that, I mean, one thing I think we should do is call out the schools. Say stop hoarding the money, stop sitting on it, and why don't you start spending it? Yeah, for access and equitable inclusion. So for that to happen, would it be necessary or at least helpful that some kind of collective of higher educational institutional leadership come together and formulate goals, values, objectives that would serve those ends? I mean, wonderful. Now, the reality is that college applications are declining. You know, people are questioning whether or not they need to go to college. So I think that if you're an administrator, you should be thinking creatively, but what can I do to address this decline? And what can I do to perhaps expand my pool of applicants? And I got $25 billion. So can I, can't I spend this money in ways that will reach populations that we never, never reached before? And maybe it's going so far back to start these pathway programs in junior high school and start giving students kind of support and direction that will put them on a college career. So yeah, I think they'll be great if leaders got together. It would be great to do that on a broad scale. There are programs that exist for black students in Rhodes. There are programs that have existed for that purpose. And we know that not only the most selective colleges and universities, but many colleges and universities receive more applications from qualified applicants than they have spaces for. And one of the inferences of that is that maybe we are underserving a large sector of our, not just our intentionally excluded and underserved groups, but our otherwise qualified groups that are not getting the kind of learning opportunities that the colleges that don't have space for the spaces for them would acknowledge that they deserve, that they earn. Well, yeah, the students for fair admissions case, you know, one of the justifications for that, for that result was that Robert said it's a zero-sum game. You know, every time you admit someone on affirmative action program, that means somebody else gets excluded and that there are negative effects here. If you had to think about that for a minute, what do you mean it's a zero-sum game? Once again, you've got $25 billion. Now, why can't you expand your class? It's not a zero-sum game. These are fixed amounts by some external requirement. You can do what you want. This whole idea that it's a win-loss zero-sum game, I just don't think it's defensible. Well, in a zero-sum game, it connects with the same theory applied to employment, housing, wealth, power of status. It's been the justification. Heather McGee has written a wonderful book called Some of Us, which studies the history and the applications of that from the exclusive discriminatory swimming pools back in the 60s up to the present. These are problems that we're going to need to address, but you're right. They're going to need creative, expansive, collective, collaborative solutions based on solidarity and diversity is the heart of solidarity. Well, some people in the higher education are kind of depressed now. I think it's an exciting time. I think that one thing this U.S. Supreme Court decision has done is kind of snapped people's attention. It's like, what have I been doing? What is the history of my institution? I say in my mission statement, I believe in fairness and equality, what have I done about it? I think one of the positives is that people are looking much more closely at their own policies and practices and thinking about what they can do to reach a larger audience, to be more accessible, to be better. Yep. And former Section Chair Nancy Welch is right in the middle of it at TCU. I'm sure there are others as well. Okay. Last thoughts to wrap things up. Rebecca? Diversity is a fact, and we're better together. Great summer. David? You know, and I'll say something I often say is that tell your friends to vote, tell your families to vote, get people out to vote. We want unbiased, forward-thinking legislators, and if we want to make these pathways easier, let's get the right people in office. Rebecca Radliff, David Larson, thanks so much for your time, for your thoughts, your perspectives. Think back, Hawaii. Come back and join us. We'll be back again in a couple of weeks. Take care. Thank you. Thank you.