 Welcome, Aloha. Thanks so much for joining us on Think Tech Hawaii and we're going to have a fun one today. We have with us two very, very experienced professors of law and Davis, Professor Emeritus from the University of Toledo School of Law current adjunct faculty at Washington Lee in Charlottesville and David Larson, one of the pre minute professors at Mitchell Hamlin School of Law in St. Paul and past chair of the American Bar Association section of dispute resolution. So, gentlemen, your challenge for today is you have been hired as consultants and you're only given 28 minutes to come up with a set of objectives and a set of factors and criteria to achieve those objectives in college admissions at both the undergraduate and graduate level. Yes, I'm grateful to have the opportunity. What objectives do you want? What are your top priority objectives? So, can I start with my original list vision? Okay, so I have an original list vision, which is in the grant creating Phillips Exeter Academy. John Phillips in 1781 said he wanted students from every quarter. That was his in his grant of starting that school so the mission would be to call it our missions policies to have students from every quarter. Whatever that means. Okay. Old school. Now there were there were men until 1970. Okay, boys. You get what I'm saying. Okay. So, by that, do you mean just geographical diversity? Are you talking about every quarter of socioeconomic or educational or. Ethnic or. I wouldn't, and since Harvard and UNC decisions, I wouldn't go too far, but I would say in every quarter in quarter meaning the most broadest vision of what quarter could possibly be. So it could be international. It could be geographic. It could be different rural urban. It could be farmers. It could be the plutocrats. It could be poor chef profits, whatever every quarter we would look everywhere. This is the vision. Yeah, I think it's a, you know, if it's me, I'm just thinking and maybe this is a little child idealistic, but I'd like to have a class that reflects the diversity of the population. You know, that, that, you know, I don't want to quote it doesn't have to be exact, but I would like the faces in the classroom to be representative of the faces of our citizens. And that's kind of where I start. Now it's an interesting time for colleges because there's some recognition down there's some push now, and maybe you don't need a college education. Maybe you can get a great job by getting different kinds of training. And right now, the technology's speared. There are companies that are saying we're not requiring college educations. Now it's just going to associate degree in this area and a willingness to work and will train you for whatever else you need. And there was a news program up here in the Twin Cities within the past week of a company that's doing that. And they said, you know, in three years we guarantee you $100,000. So that's one year after you would have completed your college education those three years because they only went to associate college for two years. So I'm not sure how this cuts but as I'm thinking about diversity in college and now what's the best path for everybody. I'm not sure anymore that the four year degree is the best or necessary path for everyone. And then I'm not sure how that cuts in terms of our diversity representation and our population. But I'm not sure I want to be in the position where I'm saying that you, we want you to go to the four year college because we think this is best for you. And don't consider these other options, which may be a lot quicker path to success for you. So I just think that that muddies the water a little bit fact that maybe the pathway to success isn't necessarily the four year college anymore. Maybe it's another path. So we've got a couple of concepts out there we've got maximum diversity in all senses. We've got representative diversity, and then you might have questions of do you mean locally representative regionally representative nationally representative internationally representative. So the qualifying adjectives for each of the categories we come up with are themselves either broadening or narrowing types of qualifiers. But there seems to be at least a sense that that diversity that enables representation of groups as diverse as possible as people on people as diverse as possible. It is an objective. How might you evoke and prioritize criteria that might help generate that kind of interest that kind of motivation application and selection. And at the Harvard case that was recently decided justice so to my are observe that. Well, so people are discussing these race neutral opportunities that are available is not in so many words, let's not kid ourselves, the whole goal of the so called racial neutral alternatives are to get a racially diverse population. If we're being honest, why would we exclude a more direct reflection on racial membership. If the fact is all these other alternatives are trying to do essentially an end around to get there anyway, because I make any sense to me. Now, if that's our goal and we believe that's valuable and and we're willing to accept other pathways to get there. Then why not just accept this pathway and and and not pretend that we need to do something else. And that's a great question. Can you generate an outcome that is both diverse and balance in a way that enables representative participation for as broad a range of groups and people as possible. And if you do that, are there ways other than using those factors that would enable you to measure that diversity. There are, you know, two that have been posed have been wealth and, and not just parental income don't know that's, that's been criticized as not closely enough correlated, rather use wealth and maybe neighborhood poverty level that you put those two things together, and you might be capturing a greater percentage of underrepresented populations, but now if that's what you're going to do, you can use like wealth and neighborhood poverty level. You're going to the reality is you're going to use those preferential criteria, you're going to have to use them more aggressively, because it's not going to be as targeted. So the fact is, even though you're saying you don't like people using preferences, in order to achieve those that desired goal of representation and understanding, you're going to, you're going to, you're going to collect a wider group than the one really you're targeting at. You're going to need a more aggressive use of those other other preferences to get the diversity you want. So again, that, that idea that why are we doing this. Why are we, who are we kidding. That that's just a far more inefficient way to get there and you can do it. But why should you have to. Well, what, why would we do something efficient. My goodness. What, what, what, what's the interest of doing something efficient. I'm just playing with devil's advocate here but so one of the things that I was thinking was that if you use neighborhood, you know, like zip codes or something like that what you're doing is you're just like, basically, enshrining the resegregation right you know what I mean. I mean, in a way, if you're going by that kind of a criteria it's like, please stay in your poor neighborhood you have a better shot than if you go into a richer neighborhood even though you know the American dream was like to go to get a better house in a better neighborhood and all that stuff. I mean it's a kind of fun one. Personally, if I was on an admissions committee at a law school or college, I have the absolutely perfect solution. I'm certain you will all agree. So here is the solution. You have what I call a clean team. Okay, or a clean officer who is now a new position at your admissions office right. Now, according to the decision, the student who is applying as a preceptor student can write anything they want. So they write everything they want to my hypothetical student rights. I am the descendant of 10 generations of black sharecroppers in the Mississippi Delta, having suffered incredible racial oppression all my life and I'd like to come to your school. The clean team takes that and then they just put it to an algorithm which eliminates any references to race. So I am a descendant of 10 generations of sharecroppers who have lived through great oppression down here in the Mississippi Delta. I don't see any race in that. Okay. So then now cleaned up they take that essay and now they give it to the admissions committee that makes the evaluation about that particular candidate whether they would be an interesting person for this all diversity representation all quarters thing like that. I think it solves the problem and but those essays could also have anything about disability. They can have anything about their religion. They can have anything about their gender. Let's see what else can they do. They can talk about their political views. They can throw anything they want. And just one of the words is anything about race. The algorithm would make it disappear. And then you would have this now cleaned up essay being given. By the way, you could have a senior member of the faculty that's still going on the admissions office and say that Joe Johnson is a wonderful fellow. That's just applied now. And hopefully, you will give him a favorable review. That's all fair day. Nothing's changed. All we did is got rid of the little color word. What do you think that that work at a college or a grad school day? What do you think? I think probably someone would immediately challenge it by saying that. I think that the description here makes it clear what words have been taken out. We can read that in. But I'm not so sure that's an automatic winner because the reality is there are people of all races who have been in oppressed positions. Blacks. You know, there's been Asian slaves as we move in the western part of our country in particular. You know, so, so, so they'll be the always challenge that well, clearly it's a race. It's a black, it's a black race considered attribute. And I think the response is that not necessarily. Yeah. Now the question I had was I was that applicant that I was black and I found out that my essay had been what is it called a bridge, a bridge when the admissions process happened. You didn't treat me fairly compared to the other one. What do you, what do you think, Dave? Yeah, my, you know, my first reaction is, well, that's differential that's treating similarly situated people in a dissimilar manner, which is the basic kind of restarting definition of discrimination that there's other protected classes that are not getting treated the same way. Now, I suppose the twist on that is the Supreme Court said, yeah, but you can do that. You know, they said, they said you, you can discriminate like that. So I think the starting position is, yes, it sounds like discrimination based on our definition of what discrimination is. But then the counter is that Supreme Court now said you can do it. So, so I guess that's, that's the challenge. Oh my goodness. Well, you can have some fun with this, you know, all those. Doesn't that get you back into the same historical problem though, which is historically, we have particularly elite colleges, but many colleges who have more academically qualified applicants than they have spots for. And so the tilting factors may very well be factors unrelated to academic merit. They may be legacy. They may be athletic prowess. They may be financial resources coming from a family of historically big donors. None of those are related to the academic qualifications. And I think most universities and colleges would point out that no, they don't want to limit their constituency to just those who are most academically qualified. They will be more around it well rounded than that. How do you shift the balance from that historical favor of privilege tipping factors over to a set of possible tipping factors that may be related to things that are non-academic, but they do balance those previous white male oriented tipping factors. I think is one is, you know, shine a light on it. I mean, I think that one thing that came out of this court, there's, I think, Richard Collenberg, I think was the name of the expert who testified in the Supreme Court case. And, you know, he went through different preferences and looked at legacy, looked at dean's list and looked at children of faculty and offspring. And I think the LDS, I think, was the LDC, I think is the acronym we put out for those three preferences and said that, you know, this accounts for 20%. In 2019, 20% of Harvard's admissions, one in five students. And he said, now keep in mind that some of these students may have been admitted anyway, but not, you know, not that many. So I think one thing you do is you shine a light on some of these other practices and bring them into questions saying that, wait a minute, you know, what are you doing here and how can you justify these things? And, you know, if you're going to stop using this particular preference, you got to stop using some of these other ones too. Right. And you made me think of something else, which I think is in the 30s or 40s that Harvard went to this thing or started to push the thing about we want a lot of geographical diversity. And there were a lot of Jews from New York who were applying, who weren't getting in, and really underneath it, it was this sort of religion neutral thing, right, geography. But the feeling was that it was really antisemitism that was driving it because they had these excellent academic candidates coming from large Jewish communities in certain places, population, right. And, and, and, you know, there was one of the arguments is what maybe that's one of the reasons Brandeis got created, you know, because of this structural gain that this elite institution was playing, you know. So, you know, even if you're going with geography, we want to have, you know, 50 states, you want 2% of the class to be from every state, right. There could be a whole thing that's in there that's actually very impressive, you know, it's in Ireland, you know. Well, yeah. Thinking about what some alternatives are some of the in states that have banned express use of any kind of racial preference. Texas, for instance, has gone to that top 10% to your high school class. You know, I think that is that is one way you can diversify it, because you do have schools that are segregated. And if you're taking top 10%, regardless of test scores or anything else you're taking the best students from the schools that that will provide some diversity. So that seems one way to to approach this. Then the question was, was the size of the class that you ended up having if you took top 10%. I mean, they had to get more students than they than the 10% totals were like the University of Texas or something like that. So they had to move to some other stuff, too. But yeah, I mean, you can come up with these ostensibly neutral approaches. But it's kind of artificial, all of this. Don't you feel it's kind of artificial. Yeah, goes back to Sotomayor. It's like, yeah, we all know what we're trying to do here. And we're, we're eliminating the most direct route to it. And why are we doing that? You know, if you're willing to look at this myriad of other factors to achieve a goal, then why not use the most direct route there. So an interesting possibility that some schools employ is that because they think it's valuable. Do you speak English as a is another language other than English spoken in your home? Yeah. If you use that, the one thing that has been demonstrated statistically is that Latinx students, then that population rises. It will increase enrollment because just because of the reality in homes and first generation homes, you might be speaking Spanish in the home. So that's one facially neutral criterion that actually at least for a population, probably some other ones, too, has increased enrollment. So, looking at these non-academic tipping factors that historically have been associated with a particular race and for many years a particular gender and a particular socioeconomic narrow group. How do we move the non, certainly non-academic tipping factors are going to continue to play a role? How do we move those in the direction of achieving that kind of egalitarian representative diversity that we're talking about? I was thinking that you may have to be very, very careful because the thing that I'm thinking about is outreach efforts, right? So, they're sort of the easy people who show up and know the game and apply and maybe got those $300,000 fee consultants to help them write the most immaculate essay ever, types, right? And then there's like somebody in, I don't know, not in Mesa, Arizona, but Surprise, Arizona. There's a small town for you, at least it used to be. You know, that, you know, usually the recruiters aren't driving by to try to tell them about how wonderful. So, now you start a real strong program to go out to Native American reservations or go into inner cities or something like that. But is somebody going to say, oh, no, you're using race in your outreach? And so therefore your outreach is illegal under the Harvard and UNC. And so, you know, you have to come up with some quote-unquote neutral way to outreach to those folks. I don't know, but that's, I think that that could actually be a target of, could be placed on institutions that tried to do more. If it could even be seen to have some kind of taint of race going on there, you know? Yeah, well, I think you're right, Ben. I think admission committees are going to have to be very careful because I, you know, people are lining up to challenge schools. And we've gotten at our school, we've gotten letters saying that we're watching, you know, and if we believe that you're using any race-based preferences, we're going to sue you. So, admission committees are feeling pressure. You know, and I suppose that was one of the goals of, you know, some degree of intimidation. Right. You know, we're going to, we're going to scare you into trying to do anything creative. And so don't even give us a hint of that. And anything that even looks spatially neutral that we believe is a end around. We're going to challenge that. So I just want to suggest that when schools get those kind of letters, they should thank you for your letter and we are watching you too. Okay. And have a nice day. Okay. I mean, you know, really, I mean, I think, you know, I remember somebody writing a letter saying, I was so shocked about how that professor acted at that meeting. You know what I mean? And I had to sit down with the dean, you know, what's going on, what are you doing? I was a private citizen. And at the end of it, I said, could you please do me a favor the next time somebody writes you? Ask them where they were. Okay, so I can contact their employer about them hassling me. You know what I mean? So, you know, Right. We're watching you too. And by the way, you did not take an entertainment deduction for that fishy part, did you? Yes. So, yeah, that's a good response. You know, another thing schools have done, and a lot of schools are doing it. They've, they've backed away from just looking at test scores and saying saying test scores are optional. Some are saying, even if you send them in, we're not going to look at them. We don't want to look at the test scores. What that means is that admission committees are going to have to work a little harder. And that's, you know, that's such a shorthand. I'm going to look at your grades, look at your test scores. That's all I need to look at. You know, that makes my job so easy. Well, you're going to have to look a little harder. You're going to have to find out a little bit more about your, your candidates. But that's probably a good thing. So, you know, I kind of applaud moving away from that hard and fast standardized test criteria or criterion, you know, and doing a much more broad holistic approach. You made me think of another thing, which is what about schools that interview potential students? Okay. You know, it doesn't have to be like that whole thing that happened in the symphonies where there was a problem of having women be sufficiently represented in symphonies. So they went to the thing where they had the white sheet up and the person would play behind the white sheet. And so there the committee would evaluate them and that out tended to increase. So, you know, a lot of alumni do this for schools and write up very important reports about the persons they meet. But now do they have to put a sheet up between themselves and the potential candidate so they can't say that anything about that person's race came through. You know what I mean? I mean, I don't know, but, but you could see how if you were really going to be persnicketing and being watched or like that. Oh, yes, but those alumni interviews are all focused on or have a race factor in them. So, you know what I mean? So, you know, I don't know. I just, it's something that I think about at least. So as we get down to our last minute or two, I really like the shine the light idea. Let's shine the light on those non-academic tipping factors. What those have been historically and the influence they have had, what might counteract them. Let's also shine the light on guys like Blum who go out there and put up millions of dollars to recruit people to be their pawns in trying to attack voting rights, affirmative action. Pretty much anything that his political perspective opposes. Well, you know that the whole idea of shining light. You know, I think in 2023 has become so much more important with the kind of evolution of AI and the ability to misrepresent truth. And we are going to have to work so much harder to make sure that we can defend the truth because the fraud is going to be really hard to distinguish at first glance. I mean, they can take Ben's face, you know, and his voice and they can have him say anything. You know, unless we're prepared to rebut that and respond to that, people are going to believe it and we're going to have to be very careful. Yeah, you know, and chat GPT, you know, I can write a query to chat GPT is what my essay is, which is supposed to like, hey, show stuff that won't say my race, but will really, really kind of give the hit hit wink wink. Okay, you know, and then have chat GPT write my essay as my first draft. I'm not saying it's my last draft, but I'm saying my first draft. I mean, you know, it's just. You don't need your clean committee, right? Yeah, they don't have my clean committee chat, you know, you can even get approval stamps chat GPT approve, you know what I mean, something like that. They're like, oh my God, I don't know, but I just I want to emphasize that, you know, I used to be a prelaw advisor, and I used to read the high school package that had been submitted by students who are now already in college right. Oh, just a second. And I want to tell you that personal interview thing, it where they would grade somebody on one to five or something like that, or they write these personal notes about somebody they met. Those were really interesting things that personal interaction between the that puts perspective student at some alumni somewhere. And there were things I read I remember where I knew the student now right, and I could understand why they were picked, because what they cause somebody to react to when they were in high school. I could see it in them as a junior in college, you know. And so, you know, we got to understand that that interaction that that if there were schools that do do that. Can talk about leadership skills enthusiasm, dynamism, all those kinds of factors are things that you could look at somebody you say hey that one, we want to have here. You know. We can't lose that I personally think we can't lose it because there's so many amazing people that are there. That's great David your last stops to wrap this up. Well check I just want to thank you really for hosting these programs and bring these issues to the forefront. I think what we're doing tonight is what everybody needs to be doing is thinking critically about them discussing them. You know, don't just let these things roll forward without critique and without opposition. So kudos to think take away to you and to Ben for joining us tonight. I really appreciate it. Thanks folks think tech Hawaii. Particularly to those on Maui and the big island and Maui, especially. Find your favorite charities and help out because it's worse than you can imagine. And it will be appreciated and needed. Thank you all with a lot of think tech Hawaii. Follow us on Facebook, Instagram and LinkedIn check out our website think tech Hawaii.com. Mahalo.