On Monday, October 31, 2022, the United States Supreme Court will hear oral argument in cases challenging racial preferences in university admissions at Harvard and UNC. Typically referred to as “Affirmative Action,” the universities argue that they must take race into account in making admissions decisions in order to achieve the racially “diverse” student body they say advances their educational missions.
The impact of giving racial preferences is stark, with students of Asian descent losing slots and having to jump hurdles relative to favored racial groups. From the challenger’s Petition asking the Court to take the Harvard case:
“an Asian American in the fourth-lowest decile has virtually no chance of being admitted to Harvard (0.9%); but an African American in that decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).”
Legal Insurrection Foundation filed an Amicus Brief supporting the Asian students’ challenge:
SUMMARY OF ARGUMENTThe grand judicial experiment of excusing racial discrimination in university admissions in the hope it would promote the educational objective of diversity of viewpoint has failed, and accordingly, this Court should overrule or modify its holding in Grutter v. Bollinger, 539 U.S. 306 (2003) (“Grutter”). Despite the Court permitting the use of race in higher education admissions, viewpoint diversity is increasingly endangered on campus. Since Grutter, the range of viewpoints permitted on campus, particularly on matters regarding race, has narrowed. It’s time to return to the constitutional prohibition against racial discrimination without an exception for education.
On October 25, 2022, I appeared before the non-partisan Cornell Policital Union, as I detailed in Affirmative Action On The Docket At Cornell Debate As I Argue Against Racial Preferences:
I have been invited to debate racial preferences, which is the core issue (but not the entire issue) in the upcoming U.S. Supreme Court oral argument on October 31 in the cases against Harvard and UNC. The format is that I get 30 minutes to give my view, then there are questions/debate with me from the CPU members, then the CPU members debate among themselves, then they vote.The Proposition on the table is:“Resolved: Stop discriminating on the basis of race.”Who could be against that? Well, Harvard, UNC, and hundreds of universities (including Cornell) and professors who have filed amicus briefs at SCOTUS in support of the use of race in admissions decisions.The CPU Resolution is the second part of Chief Justice John Robert’s famous line, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The format was that I present my argument for 30 minutes, CPU student members get to question me, then CPU members debate among themselves, and then they vote.
While “Affirmative Action” was not in the Resolution, it was obvious when the students debated among themselves that it was about Affirmative Action. Indeed, in the promotional material distributed on social media, the debates was given the title “A conversation on Affirmative Action.” A vote For the resolution was tantamount to a vote Against Affirmative Action. Many of the students voted to Abstain because they were against Affirmative Action being construed as being in favor of discrimination on the basis of race, and didn’t like the way the resolution was phrased. Yet that phrasing, taken from CJ Roberts, in fact forced student to confront the inconsistency of being for Affirmative Action but against racial discrimination.
The vote ended up 22 For, 13 Abstain, 7 Against. That means the no matter how you slice it, the absolute majority voted against race-based Affirmative Action.
Here is the recording of my initial presentation. The student portion of the debate was not recorded, which is unfortunately. Many of the students made excellent arguments on many sides of the issue.
Thank you to the Cornell Political Union for sponsoring this debate, which is not often heard on campus.
The lighting was tough because the lamps were behind me. And at around the midpoint there was a minute or so of buzzing. But otherwise, enjoy!
“Thanks to Sarah, Rodge, and Sam for inviting me here. I do appreciate it.
I think that the Cornell Political Union is really the best that Cornell has to offer you. You invite intellectually diverse speakers and you engage in debate and that’s really, I think, one of the highest goals of Cornell University. So you applauded me. I applaud you for participating in this group.
The resolution tonight is “Stop Discriminating on the Basis of Race.” How can I lose? [laugh] Well, I’m going to try. [laugh]
It seems so self-evident, but there’s a lot of issues wrapped up in that, mostly because of the debate over affirmative action. I’m not arguing for or against it tonight, but I am giving you my perspective on why I think it is extremely important as a society that we treat people as individuals, not as mere proxies for groups based on skin color or ethnicity.
Chief Justice Roberts gave the full sentence from which our resolution is taken in the Parents Involved case, which involved, whether affirmative action as was permitted on a limited basis in higher education would apply to public high schools in Seattle. And the court ruled that it did not, that you could not discriminate on the basis of race. And he wrote the plurality decision. So there was no single majority decision, but it was a five to four ruling overturning that practice. And he wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
It seems a little self-evident to me, but there are a lot of people who find that offensive, who disagree with that. That take the position that we do need to continue to discriminate on the basis of race in order to solve past historical wrongs.
A couple of preliminary points about the nature of the discussion that I’ll be having and perhaps the debate we’ll be having. First off is I use the term “race” in quotation marks, but that’s a highly contentious term. It’s a term we use all the time. It permeates this university discussion about race. But what does it really mean? Maybe a better view is perceived race or something else. Some academics will tell us that race is just a social construct, that there is actually no such thing as race. We’re all part of one the human race.
Nonetheless, we classify people and we’ve been doing it for many decades. There’s actually a book which I recommend to you by law professor David Bernstein from George Mason Law School, called Classified. And he talks about the mess that we have created over many decades from racial and other classifications, how inconsistent it is and how really irrational it is.
And the same, I think, takes place here at Cornell and almost all campuses where we throw around terms that we can’t really define, and then we use those terms as a basis for judging people. The Census, the US Census has the same problem. They talk about classifications of people and they identify certain people that they identify by race: White, Black, African American, American Indian, or Alaskan Native, Asian and Native Hawaiian or other Pacific Islander. But they also have other classifications that have to do more with ethnicity, particularly Hispanic. So you can be Hispanic according to the US Census and also one of these other races. So it gets very confusing.
They also have a definition of White, which is not really intuitive to me. I would’ve thought that meant somebody of European, perhaps even North European background. But according to the United States Census, the way they measure it, White is a person having origins in any of the original peoples of Europe, the Middle East or North Africa.
So what we throw around on this campus and what Cornell throws around in terms of racial classifications may not be obvious. I would not personally, without looking into this, have thought that someone from the Middle East would be classified by the US Census as White. Just another way in which these classifications that we use are in many ways very both irrational and counterintuitive.
In this university we throw around those terms, and at most universities, the term White, the term Non-White, the term People of Color and the time term BIPOC, but none of those are really clearly defined. They’re just terms that get used trying to classify people mostly based on skin color and to some extent, ancestry into a particular group, which is then used for a variety of purposes.
And at Cornell, before I came here today, I looked at Cornell statistics and those statistics are actually pretty irrational. They have statistics on, I think they use the term, people of color or students of color. Well, what does that really mean? It’s all of this, these classifications that we use really are ill-defined. And in fact, the statistics on Cornell’s website for the student population seem very inconsistent because it depends how you count people. Yet it’s something we talk about all the time in our politics and it’s something we talk about all the time on this campus.
Which brings to me to one of the first points I want to make. How about we stop obsessing over something so vaguely and inconsistently defined like race? How about we focus on the individual as an individual, not as part of a classification?
Second point is that what I’m talking about tonight is not strictly about what we would loosely call affirmative action. There are a lot of other issues, a lot of other legal issues, a lot of other issues wrapped up in that. So I am not here tonight to argue the Harvard and UNC cases, which the Supreme Court is going to hear argument on next Monday. Big day. Affirmative action includes many factors, including past racial disparities and the argument by schools including Cornell, in an amicus brief, a friend of the court brief that it’s signed onto with about over a dozen other schools, that supports the use of race, racial preferences in admissions, for the goal, the educational goal of a diverse student body. And the Supreme Court will have to grapple with that.
Essentially what the schools are arguing is that the damage that we all know comes to society from racial discrimination, at least in one context, is worth a price to pay in order to achieve an educational goal.
So what I want do tonight is not really talk so much about affirmative action, but talk about the core issue, which I think will help inform a discussion of affirmative action, which is who are we as a society?
As a society, we are actually systemically against racial discrimination. I know that’s not a popular conception on campus. All we ever hear about is systemic racism, but I’ll repeat it because you’ve probably never heard it on this campus: As a society we are systemically against racial discrimination.
How is that so? Well, first of all, through the Constitution, through the 14th amendment, which says
“no state shall make or enforce any law which shall abridge the privileges or immunities of citizens, nor shall any state deprive any person of life, liberty or property without due process of law, nor to deny nor deny to any person within its jurisdiction the equal protection of the laws.” And so that’s what you’ll hear about equal protection. And that’s one of the issues at the Supreme Court. So right in our Constitution, at least as of 1868, there was the presumption that every person in this country is entitled to equal protection of the laws.
Federal law, the Civil Rights Act of 1964, also provides, it had many different provisions, but the provisions, prohibit, among other things, make it an unlawful employment practice for an employer to engage in certain discriminatory acts based on a variety of factors, one of which is race and national origin. So as a matter of federal law, so as a matter of the constitution’s equal protection, as a matter of federal law, we prohibit discrimination on the basis of late of race.
There are also state laws. New York State has New York Human Rights Law, which prohibits the same conduct.
There are a variety of federal and state regulations which prohibit discrimination on the basis of race. And there are even campus rules that prohibit discrimination on the basis of race, including Cornell Policy 6.4, which addresses a variety of things and mostly you probably hear about it in terms of campus due process and the procedures that are used. But as a substantive matter, Cornell Policy 6.4 provides that the university does not discriminate on the basis of protected status and among the statuses that it does not discriminate on or race, ethnic or national origin.
So at every level of our society we have embedded into the law non-discrimination on the basis of race. You could certainly argue we haven’t lived up to it. That’s a different question. That’s just a matter of enforcing and better practicing what is, what our system provides.
We have accepted as a society and at Cornell University that discrimination on the basis of race is wrong. So why do universities do it anyway?
So the question that I have is, are we willing to compromise or sacrifice a core value, which I presume everybody in this room and everybody or 99.9% of the people accept that we should not discriminate on the basis of race. So why are we willing to compromise or sacrifice that core value for some other perceived good? And is that good for society or bad for society?
So the issue is not just being, to me, kind of third point. The issue is not just being against racial discrimination, but it’s also how we measure it. And I think we have a tendency on this campus and elsewhere throughout higher education and, and really in many aspects of society to focus on groups to say that what the measure of justice is, Do groups have equal outcomes as opposed to are every, is every individual treated fairly without regard to race?
That’s certainly the philosophy at Cornell. There is an entire DEI set of rules and bureaucracy that is devoted to measuring group outcomes and to achieving as close to equal group outcomes. That’s the philosophy of just about every campus. But I would argue that to the extent to achieve those outcomes, we need to violate our core value of not discriminating on the basis of race, we are giving up something very fundamental to the campus and fundamental to our society and fundamental to the way we view people for a result which can be fleeting.
Results among groups change over time. If you look at, it’s not the racial aspect, but if you look at gender, you look at women in the sciences and you look at women elsewhere in just a couple of decades, those numbers have shifted dramatically. I remember seeing a statistic just recently that the percentage of people seeking, I think it was PhDs in psychology, is now something like eight or nine to one in favor of women. That doesn’t make it wrong. That doesn’t make it sexist. But if you’d gone back 20 years ago, it would’ve looked very differently.
And so my point is these group statistics, how groups perform over time, can vary dramatically and that we should not be giving up a core value of our society, kind of a guiding light of our society, which is you do not judge people based on their perceived race, for what could be transitory group results.
So I like to focus on the individual, and that’s my argument. When we move to viewing individuals merely as group members and to classifying and, and treating them based on race, we are violating our core value and we’re inevitably violating it. You can’t help but violate it because most things in society are zero sum gains. There are finite resources.
People compete for admission spots. There are only a certain number of admission spots. People compete for jobs. There’s only a certain number of job spots at a particular company. When you make those decisions based upon race, then you are depriving somebody else. It’s not just that you’re favoring somebody based on their race, but in a zero sum game where there’s a limited number of spots, you are depriving somebody else of that based on their race. And again, I’m using race in a very broad term here.
So discrimination in favor of some people is still discrimination and it’s something that violates our core value. Discrimination in favor of one group necessarily, in a zero sum world, is discrimination against another group.
The Cornell Amicus brief in the Harvard case that I’ve been reading, one of the things I read in preparation for today, is that they say they have no choice but to use race as one of the factors in deciding admission. That they could not achieve the group outcomes that they want, which is essentially their diversity percentages if they want, without engaging or using race as a factor.
And that is essentially, Ibram Kendi’s formulation, his anti-racism formulation. His most famous line is that current discrimination is not just okay, but good in order to remedy past discrimination and future discrimination is good to remedy current discrimination. The problem with that is that it’s a societal dead end. It pits people against each other. It views them as groups. It pits groups against groups.
We’ve seen that in the past, and Harvard paved the way. Harvard is now in the Supreme Court and they’re talking about the holistic model. That’s how they try to evade prior Supreme Court precedent. They say they only use race as one part of a holistic model. Well, the holistic model was not invented by Harvard for what we would call race now , was not for skin color diversity. It was invented in the 1920s to restrict the percentage of Jews at Harvard. That’s well documented. I don’t think anybody disputes that, that based on the grades. I don’t think they had the SATs back then. But based on those other factors, Jews were a starkly rising percentage of the Harvard College student body, and Harvard didn’t want that. So they dropped those measurements, those more statistical and objective measurements and created the holistic model.
And if you look at the chart, you see the percentage of Jews at Harvard in the 1920s. [gesturing] They come in with the holistic model. It drops down and it’s been more or less even throughout time. You see the exact same chart. You can lay one on top of the other, but fast forward 70 years with Asian admission, PR people of Asian descent, admission to Harvard. [gesturing] You see the number coming up and then you see it going down, and then you see it being held steady because the holistic model is just a ruse.
The holistic model is a ruse for the equivalent of quotas. It allows them to hide behind it, and look how damaging that is to our society. The people most commonly now fighting against that sort of system are not people of North European descent. They are people of Asian descent who are being treated unfairly. You can measure that in statistics by use of this holistic model. So look how damaging that is to our society where you have people being deprived of something because of their race. Again, using that in a broad term, which would include ethnicity, national origin, in order to achieve some other goal.
So this is a dead end. This pits students against each other. This pits groups against each other. This creates animosity. This creates bitterness.
I would suggest, or it has been suggested by Dorian Abbott, a professor at the University of Chicago, some sort of physicist, astrophysicist, I think he is. He had a big controversy because he was boycotted when he gave a lecture at MIT.. And he proposes that we use a Merit, Fairness and Equality standard instead of DEI, which expand the pool of people. It is not discriminatory to make sure you are reaching out to people, to bring them into the pool, to bring them into the system, to maybe offer them help not based on the color of their skin, but their need for help, to examine the systems we use. And he was talking about faculty hiring. Examine the systems we use to make sure there’s no bias built into it, that people are not discriminated against on the basis of race. One of the things he advocates getting rid of is alumni preference preferences, legacy preferences, because that I think statistically probably does favor whites, whites with quotation marks because of the history of past discrimination.
So he says, get rid of all these things, widen the pool, invite people in, give them help, make sure it’s a fair process. But at the end of the day, in this finite world of job openings, particularly in academia, you cannot make race the decision between two people. You have to find other factors for that. He was boycotted for that.
Where I’d like to wrap up is to focus you on some personal anecdotes that show me how damaging this system of racial classification, how damaging promoting people or not promoting them on the basis of race, has become and how we need to do better. One of the things I did in preparing for today is listen to an oral argument in the Second Circuit Court of Appeals, the federal Second Circuit Court of Appeals this morning. And it’s a really interesting case.
The title of the case is William Jacobson v. Mary Barrett, New York State Health Commissioner. That would be me. So I’m the plaintiff in a case not arguing it. We had lawyers to do that. The case involves racially discriminatory Covid therapeutic guidelines issued by the State of New York. When the therapeutics were in short supply New York State issued guidelines in order to qualify for the limited supply, zero sum game. Can’t give them to everybody, therapeutics. You have to prove certain things. You have to prove you have Covid. So you need a positive test. You have to prove that you’ve presented yourself for treatment within five days because the therapeutics were are only good within the first five days. You can’t have severe, you can’t be hospitalized, you can’t have severe symptoms. You have to be 12 years old and a hundred pounds.
And then you need to show a risk factor and under those guidelines merely being non-white, and that’s the term they used, non-white is a risk factor. To qualify if you are white, you have to show something personally health wise is wrong with you. You have a heart condition, you have diabetes, whatever.
In what world is it okay to have medical decisions based upon or rationing of medications based upon race? If somebody comes into the room, you examine them as a physician, if one person is more sick than the other. But this presumes that because the African American community has higher rates of diabetes, that they are there for more at risk from Covid. That might be true as a group, but you’re treating a patient and not every African American has diabetes, test the person. Not every white person doesn’t have diabetes, test the person.
So that is a good example of how this focus on racial classification, this assumption of group outcomes, has really poisoned so much of it.
Another one, which I think highlights the absurdity of our current system. Where used to live at in Rhode Island, my next door neighbors were two physicians. One of them was from Colombia and one of them was from the United States. The Columbian woman was obviously of Spanish ancestry, not native South American ancestry, because she looked European. They had an Anglo last name. Their kids, even though we were in the best school district in the state, went to an extremely expensive private school. I lived next door to them for two decades. Never once heard them speak Spanish at home. I don’t think the kids spoke Spanish. There is no way either of these kids ever were discriminated against on the basis of their mother’s Hispanic origin.
Yet one day a card was misdirected to our mailbox instead of theirs. And the son was being solicited and invited to a multicultural day at Yale University. So he obviously had checked the box as Hispanic, and as part of their affirmative action program, they were reaching out to him to bring him in. In what world is that fair? That’s not. Rather than examine whether someone themself or their family has suffered because of discrimination, they just assign a classification to somebody and then use that as a basis for admissions.
Somebody who did not do that is my wife. My wife’s ancestry is from the Jews who were expelled by from Spain in the Spanish Inquisition. Her grandfather grew up on Isle of Rhodes, which had one of the ancient Jewish communities that were expelled from Spain. They spoke, led, you can look it up, Ladino at home. My father-in-law, may he rest in peace, grew up speaking Ladino at home. It never dawned on my wife to check the box. She could have probably checked Hispanic ancestry. How absurd would that have been? How unfair would that have been? So she didn’t do it.
So what I’m saying is the classifications, the use of race, these indefinite terms, ends up not being an argument over what’s right. It ends up being an argument over power and it ends up pitting people against each other. And we shouldn’t have it in the university.
The university has dedicated itself and sworn in rule 6.4, they will not do that yet in their brief to in the Harvard case. They say they do it, they say they use race as a determining factor, and without it, they say they could not achieve the end result that they want.
I do think that John Roberts had it right. Maybe these practices were justified 50, 60 years ago, but they’re not justified now. He had it right that at a certain point in time, we have to accept that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
Thank you.”
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