 Thanks so much for joining us on Think Tech Hawaii. Welcome. And today, the US Supreme Court continuing in its breakneck backward direction has wiped out decades of precedent and with it has attempted to wipe out affirmative action in a case in which, at the oral arguments, Justice Clarence Thomas was quoted as saying, diversity. I don't even know what that means. This is not a good sign for people at the top of our judicial system, whatever that may mean. We have with us today Ben Davis, Professor Emeritus from the University of Toledo School of Law and visiting professor at William and Lee School of Law, Washington. Washington and Lee. Washington and Lee. Senator Sims, author and retired Hawaii State Judge and David Larson, media past chair of the American Bar Association Section and Distribute Resolution and a distinguished professor at the Mitchell-Hamlin School of Law in Minnesota, where now hopefully, you folks are getting better in order to breed. OK, Ben, you had earlier today shared some thoughts about where this US Supreme Court decision attempting to strike any consideration or thought of race in college and university admissions leaves us. You want to share your thoughts on that? Sure, Chuck. So my short version of it is this is Dred Scott for our generation, meaning the famous Dred Scott decision that basically said that black men had no rights for which white men needed to respect back in the 1840s. And I say it because the decision is basically saying you can't take race into account as a factor in your admissions policy. The consequence is throughout the society because it's not just going to be about admissions at schools and law schools or all that. But it'll be throughout hiring and corporations and education and science and all that. So the hypothetical that I see is this. There are a final cut for a job of some kind, maybe a teaching job. And there are four or five candidates. So if one of these candidates is a black man, somebody might say we can't make an affirmative action hire in old days as part of the debates that would happen. But now they'll say you cannot make a affirmative action hire. And that's the way that no matter what the record is in terms of the quality of the candidate will be part of the argument that will be made. If it is a white candidate, a white male in particular, that will not be said. If it is a black woman, then it will be that argument. And then there'll be a gender argument that will be made at the same time. If it's between a white man and a white woman, the white woman will be subject to the you can't do an affirmative action hire with regards to her. Because one of the greatest beneficiaries of affirmative action have been white women. And if you extend this, we talk about people who have disabilities. You talk about people who have LGBTQ. All of those particular groups particularly underrepresented in the legal profession will be subject to an argument that will be made. That is, you can't talk about affirmative action whenever you try to talk about diversity. So that's what I think. And this is throughout society as of this decision today. The other part of this that I'd like to say is that if you've known Chief Justice Roberts for years and watched him, this is consistent with how he has been for a long time. One of the things that always bothered me about his confirmation hearing is that when they're doing the full search of what they've done in the past and all that, he actually wrote a memo on affirmative action that was in the Reagan Library. And that was looked at as part of watching whatever he had done before. Well, mysteriously, that memo disappeared. And the only thing that was left was the notes of the Bush administration people who were vetting him, so to speak, about what he had said. Well, I can imagine what that memo said. And it would have been nice to have known about that before his confirmation hearing for Chief Justice. But if I can say a third thing, there's basically, if you just add this little international law stuff, there's a convention on the elimination of racial discrimination. It defines racial discrimination as being both purposeful and by effect, so that even though it may not have been purged, though, the effect is to end up being racial discrimination. That's a problem. That's a breach. And it also says that positive measures to address that can be done and be in compliance with the convention. Thing about this decision is it reinforces the American resistance to address effect and only focus on intentional racial discrimination. And it flips it in the sense that to the extent you talk about race, then you are discriminating by even talking about race as a factor. The consequence of this is said to be lightened up by the fact that a student can talk about there anything in their essays. So you imagine the poorest sharecropper kid from the poorest part of Mississippi having lived a life of discrimination is applying to Harvard or UNC. They put that in their essay about all that stuff that happened that was tied to their experience, generations of their families having been in sharecropping since the Civil War. Now the admissions office has got to look at that thing. But the admissions office can't take into account race. So they're hesitant. They're hesitant because they don't want to reprise them from somebody for them having taken into account race while the student has said what they want to do. And so basically what that decision is saying is that, yeah, thank you for sharing all that interesting stuff. But we don't care about it. We don't care. We don't care. We don't care. That's what comes out. That's what's driving. Yeah, we don't care. We don't care. Yeah. And it may be saying, we can't assign that any value. Yeah. We have to. It doesn't say I don't care. We have to. It doesn't say I don't care. The history says I don't care. And if you read Justice Confinement Brown Jackson said in this, I think she gives an incredibly detailed history of the pervasive kind of racism that is integral in a part of this country's history. One of those things that people don't want to talk about. They don't want to acknowledge that it's been pervasive. And at each time there's been a point at which there's been some advance made in terms of racial equity. You get this backlash from, she goes from the time of the ending of the slave trade, right through reconstruction, right through the Jim Crow era, right through World War II, right through the Great Migration, all of that. And detailing in each of those instances, you get this pushback that says basically to mostly to blacks and other minorities, you don't want to hear. We're not going to let you get that far. So we've got to change things, whether it's redlining, whether it's housing, whether it's education, whether it's being in the military, all of that. And she's got it there. You can't, now for those whose feelings are going to be heard by learning about what this country has done in terms of racism, this is something you can't unsee. If you read her opinion, you can't unsee it. You now know, you can't go back and say, well, no, that wasn't on me, that was not my family, that was not me, you got to see it. And so we have to, I think what we've also kind of seen, I agree with you Ben on your observations as well, but we're also kind of seeing this, almost this dismantling to some extent of the credibility of the Supreme Court. I mean, that's just, it's just happening because this has been in place for some form of affirmative action in terms of universities has been in place since what, almost 50 years. So we've got a couple of generations of some very highly educated folks who've come through these universities and made tremendous impacts in all areas. There's one this guy called Barack Obama. Well, no, I don't think he was in affirmative action, but, because he came from Puneau. But no, that's not it, that's it. But anyway, but you have that whole generation of folks who come through and who are making impacts, not just in the law, but in all areas of society. And they're kind of not gonna take this sitting down. And they've got some tools to work with. I know my law school, I'm gonna just be here for a day, but one of the things that my law school, the Paul has asked some of its alumni to participate and I'm gonna be doing that is something called, they started this last year and other schools are doing it as well, what they call first generation law students programs. First generation, which may be another way of addressing this whole issue of, who's affirmative action, but because first generation, this is in Chicago. So, you're gonna have a substantial body of people to work from in terms of bringing in underrepresented minorities, because it's Chicago, you've got a lot of them, but it's strictly for the program design for first generation law students. And you get all these additional resources and programs and stuff available to assist those students before they began law school. You made me buy a check, I did. Oh, I'm going to them like. So does this leave us in a spot now where if you have two applicants for admission at a college or university, one is white male and the other one is not, that in order to avoid this kind of reversed trend that the US Supreme Court is proselytizing, the non-white male candidate is gonna have to be virtually indisputably more qualified than the other one to avoid the attack that if they get it, it was a race factor or a gender factor. Yeah, I think that's right. So it pushes backwards that way? I think that's absolutely right. Couple of things come to mind. Picking up on what Sander was saying, the Supreme Court's their approval rating and their trust rating in particular has been going down dramatically. And it's now under 50% as an NBC poll that has a 47% people don't believe in the Supreme Court anymore. That's beginning to be perceived and perhaps accurately as an appendage of the Republican Party. And to the degree that it's just an arm of political party then we have to ask the question, why do we even have a court? What, whatever happened to this idea of three independent branches of government with some checks and balances? So I think that evolution is very disturbing and picking up on something else that Ben suggested, today's decision was about race-based admission for colleges and universities. And that's just the first domino. Now it's gonna be just a successive attack on different aspects of our society, employment's right around the corner where there's gonna be challenges to use of any kind of race-based consideration in any kind of hiring situation and it's gonna go beyond race. Now it's gonna be a broader attack on all aspects of affirmative action. And I think the most discouraging thing to me is that, first off, I think affirmative action is a misnomer. I think it's remedial action. That's just an unfortunate name. It should have been referred to as remedial action because what it really is, it's a response to cumulative disadvantage. You can start out with inadequate schools and inadequate opportunities at lower educational levels. You know, it's just compounds. And a certain pound, and Lester Thoreau once used I think a really good metaphor, talked about a foot race. And he said that, so you have two parties out of foot race and one party starts in front of the other one. And you can say go and put everybody at the same rules at the same time. And here's how the race goes. He goes, the gap doesn't close. He goes, until you close the gap, you're not gonna have a fair race if people are starting not at the same place. He goes, that's why you have to think about remedial action or so-called affirmative action. And all we're trying to do is we're trying to close that gap so that then people can run equal and fairly. And I think that that's been misunderstood and misrepresented about affirmative action. But really it's not affirmative action, it's remedial action. And where does this decision leave us? Well, it's really in an uncomfortable place as somebody working in the university because the fear is that even though there's this Thoreau language that students, nothing stops students from referring to how they're race. I've affected their upbringing and their challenges and their inspiration for leadership. There's nothing to stop them from talking about it. The problem is there is something to stop the school from thinking about it. The decision and consideration because what this decision says is you cannot, under any circumstances or conditions, consider race. So if somebody puts that material into their application, you have to be very wary about how you're gonna respond to that. I think one danger for schools is that now they're gonna have discussions about, okay, how can we, they're gonna be explicit about how can we get around this decision that says we can't consider race? Well, once they start saying that and they go to something that is ostensibly race-neutral, they've presented the case that, well, the only reason you're using this supposedly race-neutral criteria is because you believe it'll give you a race-based decision. And now I've got the evidence I need to challenge your decision-making process. So I think it's a dangerous situation for schools in terms of how they're discussing and positioning themselves. And if they're positioning themselves and starting the discussion as how can we have a race-based decision that won't be challenged under this US Supreme Court case, they're already in trouble, that that can't be their starting position. It's gotta be divorced from a race consideration, can't be linked back because as Ben properly said, under equal protection, it's an intent-based analysis. And so challenges are always gonna be looking for some evidence of unlawful intent. And if in your discussions about what your admission policy is going to be, there's some consideration of how I can achieve what we used to achieve in a race-based policy, but not call it that. And you've articulated that, I think you've got a problem. And I think that's really dangerous and confusing for schools. You know, the other thing is that, what about the other kinds of affirmative action? You know, what about legacy? And what about donors? Athletics? Yeah, that's apparently all okay. So we're just kind of picking out this one thing. Picking out one thing. That has been clearly problematic through our history. I mean, probably we survived for centuries. History will look back at the American experiment and say the one thing they really failed at was race. They could not make race work. That's gonna define this country. And we're there right now and we're taking a big step backwards. It seemed that in many respects, maybe we were moving forward at the days of a step backwards. Well, you might have thought race is another question. I'm gonna turn to Bennett just one sec here, but I like it because not only is it the head start factor, but this is not a level playing field. Hey, and the runner who starts behind is also facing what appears to now be a much steeper slope uphill. So the race is doubly biased against them because they start behind them because they have a much steeper slope to traverse, to be able to reach the same pinnacle of achievement of admission. Yeah, and I don't think anybody ever pretended it. That affirmative action was a perfect solution. It was intended to be a temporary solution, kind of ridership that had gone skew, that had gone off course. And so we were gonna engage in a policy action or a period of time until we can kind of get back to where we said we started from. I mean, equal protection assumes that we're all gonna have equal opportunities and we've never been there and we're trying to get to that place. And now it's just gonna be much more difficult to get to that place. And really that's where we need a fresh start and we're not gonna be able to get there. It was a comment made by President Obama on that same point that it wasn't, this is a sad day, but it wasn't meant to be a permanent solution. The beginnings of a permanent, it wasn't meant to be permanent. It was a way to just, as you say David, address that gap. And there's always been the discussion about when is the gap closed? When is the gap closed? How long do we have to do it? I think that was one of the decisions. I can't recall which one, but wanting to determine at one point, do we stop and say we've gone far enough, we've done it. And I don't know that that's, I don't know if there's not an answer to that obviously, but I think it's gonna require, again, like with the affirmative action required, some creativity on how we address the ways in which we want to have a diverse student body. And let's just be more honest, we now know diversity is a real thing. It matters, it absolutely matters. I mean, what kind of a society are we not recognizing and understanding the value the diversity brings into all of our institutions? That's, to me, that's just the beginning. I mean, we know that now. We've had enough time to kind of really carefully examine that in this time that this affirmative action has been in place and see what kinds of impacts that it's had. It's not just in, I mean, we don't just have to say in law school admissions or in education, but just in society generally. Even in terms of cultural issues, I mean, we've had to, we've now begun to recognize and understand the contributions of minorities and all kinds of various. I've been watching that series Canvas on PBS and they talk about the intersection of art in various communities and they really bring into, bring into diverse artists in all kinds of areas, not just the paint media, but it's in music and it's in the theater. It's in the visual arts and you're just seeing this recognition by broad, as broad specters of our community that these contributions are of value and they enhance and enhance the entirety of the community. So it's hard to just simply ignore it and say, oh no, we don't wanna make any distinction for race, you do, because you wanna know something, you wanna learn, you wanna see how that contributes to your society and that's my two cents. Go then, we're running out of time. I would maybe just add to those comments and that I agree with them is first, just the impact of diversity. I went to my 50th reunion. Yeah, you were talking, yeah, yeah. There was a guy, a white guy who had been in my dorm from Pascagoula, Mississippi, who I saw there, an old friend of mine and he said to me that just seeing me and being hanging out with me in the dorm had betrayed all the myths about black people, he'd been taught as a white boy down in Pascagoula growing up just, and trust me, we were not doing any kind of significant stuff except being dumb high school kids, okay? But just that whole sort of interaction had been huge for him because he'd been told a whole bunch of stuff growing up. The other thing is, I think it's important to understand that this is 60, if we take 60 years back to 1961, which is when Ruby Bridges was in grading that score in Louisiana, at every time there was this effort to integrate blacks, it was always trying to put forward the best of the blacks at that time, the best student or whatever, to be the first one forward so that they would succeed and if they succeeded, that would open the way for blacks behind. This is really consciously done. I've been to another 50th reunion with Sidwell Friends, where people recited what they'd been told when they got admitted to the first five blacks in eighth grade and what they were told in the community about who was the best student at your black school? We wanna pay their way to go to Sidwell Friends and they were told, you have to succeed. And I've said to people recently that in the entire 60 years from first grade until I retired, I was basically one for two of the blacks in every environment educationally or professionally I was in. Maybe it got to four in my 140-person class in law school, but usually it was just one or two. That's how narrow, how little the space after 60 years has been and that's 60 years. And I always think of affirmative action as being, and I'll say this is my last thing, is basically the American way of trying to do integration on the chief. Because in Rodriguez, the Supreme Court back the way back in the late 60s from saying that education was a fundamental right, because that would have infected the property tax-based systems and all that stuff and it blinked. So once you don't see that as being fundamental, then you gotta deal with the inequalities and property taxes, the segregated neighborhoods, all that stuff, you don't have to deal with it. So we're gonna put a band-aid on, which is this affirmative action thing, which hopefully will get a few people in without having to change the underlying stuff, without having to change or only move it slowly, you see? And so what happened is that the little band-aid has even been taken off. So we're back to what was there. And my optimism is always that after Red Scott, people worked hard to make things better. After Plessy, people worked hard to make things better. After Brown, people worked hard to make things better. After Bakke, people worked hard to make things better. All kinds of people. And people who recognize that, you know, just recognize, after dogs, by the way, just a little thing on dogs, dogs didn't talk about the 250 years of black women in slavery. And what they had to deal with with regard to, or couldn't deal with in terms of their own bodily control. They weren't people, they weren't human. Yeah, you know, they were people, but they weren't recognized. That was a base, that was the underlying premise that, you know, they were people, so. But I'm saying, you know, in 2022, what a blind spot. I mean, what a blind spot. If you're gonna go back to the 13th century and do all your analysis, what a blind spot, you know? So there are a lot of blind spots. Some people say it's race neutral and all that, but it's just blind spots. And the problem is that if you don't wanna deal with it, you still gonna have to deal with it. You gotta have to deal with it. And I think that's what's gonna end up happening. Just like you said, you've given that history of all the other things that occurred, we came back from that, but going back from this too. And I think I would suggest to those that are listening to take a moment and read Justice contingy Brown Jackson's this said, if you don't quite understand why it's even necessary to have affirmative action or to address things in that way, I think that gives you a real clear understanding of why this was necessary. Yeah, I think the other thing that some people struggle with, they definitely struggle with. And I know they struggle with in Florida cause I aren't even allowed to talk about this. They legislated a prohibition about it. It's the fact that when it comes to affirmative action, this paradigm of sin and innocence has been set up. And that often the challenge to affirmative action is that why should I be disadvantaged because I'm innocent? I didn't set up those systems. I'm not responsible for this. Maybe I don't even know any black people cause I don't live in that neighborhood. So why should I be subject to the system? I think for any white person to pretend that they haven't benefited from a discriminatory society is just disingenuous. It's just dishonest. It really is. So to say that you can't have this affirmative action that might affect me because I'm an innocent person is that you're not being honest about what's happened in your genealogy and in your life, the benefits that you've had because you're white and all we're trying to do is write the scales. So in our last minute or so, last thoughts, what's the most important thing for us to learn from this? Sandra? I think we're going to have to learn to address and be honest about the impact of institutionalized racism in our society. We cannot unsee it. We cannot turn away from it. We have to acknowledge it. And Florida's and other states' laws passed to the contrary are just not gonna do it because even the students and teachers that are being asked to make these kinds of decisions about what history is going to be taught are rebelling. That's what's gonna happen. We can't unsee this. David? Vote. Yep. Vote and evolve to support your political candidates because this decision is a consequence of what the Republicans were able to do by putting through their own candidates. There's only one reason that Barrett's on the bench and that was for the Dobbs case. That's the only reason she's there. And pay attention. Vote because it has consequences. Yep. And Ben, you started this off. You wanna wrap this up? I want to encourage us not to despair but rather always to renew the fight out of a sense of duty to perfecting what is here. And I wanna say that when you look at the majority and you look at the conflict of interest issues that have risen up with them, they have a lot of dirt they got to clean up because it really stinks. I don't smell any of that over on the center side. I do smell it on the majority side. I'm just gonna let you say it like that. And there's a lot of stuff that really, really looks profoundly shocking that it's gonna get worked out. And I don't know how it's gonna work out but it's gonna be worked out. So always keep the faith if you can. And just understand that people are beautiful. There's lots of good people out here. Lots of people doing, trying to do the right thing. And even if the hoops are made to make you feel complicated and trying to play one group off against the other, that's an old game of the vibe conquer. But we're all gonna get there together if we hold hands. We will get there together if we hold hands. That's exactly right. And that's maybe a couple takeaways one for any and all of us to be really truthful. Our race, our ethnicity, our gender, all of those. They're a critical, critical part of who we are, what we bring to the table. What we have to share, what we have to learn with and from. And second, if we're going to learn to live together, we have to be able to learn together to work together and to live together in all sectors. And anything that gets in the way of that is not true to who we are as different people, each of us. Thank you all. Think tech, Hawaii, thanks for joining us. And David, let us learn together, let us work together and let us get past this in the ways that we can as people together. Aloha. Aloha. 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, thinktechhawaii.com. Mahalo.