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VIDEO: Affirmative Action – What Comes Next?

VIDEO: Affirmative Action – What Comes Next?

“The Supreme Court has unequivocally repudiated the core philosophy that dominates the campuses and increasingly corporations.”

On Friday, June 30, 2023, we held an hour-long discussion of the Supreme Court decision in the Harvard and UNC cases, and what that ruling meant for affirmative action and other racial preferences moving forward.

The event was hosted by Kemberlee, with me and Ameer Benno, Esq. at the panelists. Ameers is Director of Litigation for the Equal Protection Project.

We touched on a lot more than the ruling. We talked about what it meant for the corporate world, and how it would impact the work that EPP does.

The full video is embedded at the bottom of the page. Here are some short excerpts from the event, selected by each of us (with time stamp where it appears in the video):

William Jacobson

2:59: “Thanks everybody for coming here on pretty short notice. We picked this time not knowing when the decision would come down, and I think it was pretty good timing. I’m not going to say a lot other than this reminded me, waiting yesterday for this decision, of when we were all doing that for the Obamacare decision back in 2012. Although this time we had a better result than we did back then.”

13:59: “I wish I could see the people here because I’d asked for like a show of hands. How many of you ever took a critical race theory course in college or law school? Because if you did, then you’ve pretty much read the dissent of Justice Ketanji Brown [Jackson], less so Sonya Sotomayor. So the dissents were really, you know, ‘how dare you, there’s still racism, there’s still disparities that we can’t just pretend that this has all gone away.’ And they were really talking about something that wasn’t the issue in the case. They were talking about more of a political, sociological [issue].”

18:53: “And these are all things that are consistent with what the majority said. So what I think this was, in many ways, it was a repudiation of the diversity, equity, and inclusion industry, philosophy, the so-called ‘anti-racism’ philosophy. It really was a rejection of critical race theory as having any constitutional relevance…. The Supreme Court has unequivocally repudiated the core philosophy that dominates the campuses and increasingly corporations. What that means going forward, I think, is to be seen.”

36:32: “While I have no doubt some people will say, well, that was just higher education, this was such a forceful majority opinion. I don’t think that’s going to fly. I think that this will have an impact on judges down the line and on administrative agencies down the line. You know, certainly we’re going to use this.

38:56: “Going forward I think it’s going to make it harder, because you’re going to find a lot of evasive context. We’ve already seen this in many of the actions we’ve brought where they use euphemisms [such as] ‘historically underrepresented minority’ and ‘first generation’. Presumably they’ve looked at the numbers and first generation college students are less white than third generation. So they, they’re going to start to use euphemisms. So it’s going to be harder. They’re not going to be as bold as they’ve been so far. So I think it’s not going to change a lot of the problems, but they will be pushed underground a little bit more. They will, take place more behind closed doors…. I think it’s going to make our job harder.”

Ameer Benno

9:39: “Why did Chief Justice Roberts and the majority find that there was no compelling interest? Well, ‘diversity’ writ large is just too ambiguous. How do you measure whether there has been educational benefit in this case? …. Without knowing whether we’ve succeeded or whether we can, [without] some metric in place [to] quantify whether we’re doing a good job or not, it’s just too ambiguous.”

10:39-11:30: “Here, race has been used as a negative. Because college admissions is by definition, a zero sum game. For every person who gets in, that means that there’s somebody who did not get in. And so if you’re giving a racial preference to somebody because of their skin color, that means somebody who did not have that skin color was disadvantaged.”

11:30: Affirmative action” collectiviz[es] people and assumes that students who share a race all have a shared experiences or shared viewpoints on life, and a global worldview that is all identical …. That is nothing more than crude racial stereotyping. Those [minorities] who … have achieved success are going to be viewed as if they only got to those levels because they were the beneficiaries of affirmative action, which of, of course, is the very evil that affirmative action was supposedly designed to eliminate.”

35:51: The Supreme Court was “really clear [that] the 14th Amendment allows no racial benefit or preference … and that it is going to be viewed consistently with Title Six [of the Civil Rights Act of 1964], which prohibits discrimination. And there’s no real principled reason why they wouldn’t apply the same analysis to Title VII [of the Civil Rights Act of 1964], which applies to the employment sphere. And so, giving racial preferences in hiring or in promotions, there’s just not going to be any tolerance by the courts … for that kind of activity.”

40:23: “Some schools … are talking about … giv[ing] advantages to ‘underrepresented minorities.’ To me, that category is flawed for the same reasons the court found that the check boxes on the common app are flawed – they’re just so overly broad that they’re completely meaningless. What is an underrepresented minority? It seems pretty obvious that that’s just code for engaging in racial preferences that are forbidden.”

Suggestions? If there are any topics you think would make for a good online event, please post in the comments.


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RandomCrank | July 4, 2023 at 6:15 pm

Constructive suggestion: Publish the whole transcript for those of us who don’t have the patience for long videos. Thanks.

    William A. Jacobson in reply to RandomCrank. | July 5, 2023 at 8:15 pm

    While transcripts can be auto-generated, even the best transcription services require a lot of clean up, particularly where there are multiple speakers and dialogue back and forth. The proofing process is extremely time consuming, and to proof an hour-long transcript could take the better part of a day, and that’s time we just don’t have. That’s why we almost always do transcript excerpts.

      RandomCrank in reply to William A. Jacobson. | July 6, 2023 at 2:11 pm

      Reasonable answer, When I was a reporter, I’d take record some interviews and use my notebook to write down paraphrases and the tape counter number. On the few occasions when I needed to do an entire transcript, it was very tedious and I hated it.

      That said, couldn’t you just run it through speech-to-text software? You’d still need to check it, but wouldn’t it be pretty fast? Only asking; I really don’t know.

        We’re not going to do that; if you wish to do so, by all means, go for it.

          RandomCrank in reply to Fuzzy Slippers. | July 6, 2023 at 3:03 pm

          My guess is that you could produce an accurate transcript in an hour, judging from a couple tests that I did a month or two ago, purely out of curiosity. I thought the software was surprisingly accurate.

          Anyway, your blog, your rules. It could be an easy way to expand the number of people who consume information you want to disseminate. Some people are readers rather than internet video consumers. As an example: I read the entire Supreme Court opinion, and the dissent, in the Colorado case. After reading the dissent, I went back and read the rebuttal at the bottom of the opinion.

          For many people, reading is preferable. But, again, it’s up to you. Unless you’ve checked out speech-to-text software and found it wanting, I think you’ve got a mental block. It happens, but you really ought to think about it. I believe you’d find it easier than you think it is.

          RandomCrank in reply to Fuzzy Slippers. | July 6, 2023 at 4:00 pm

          To add a couple things: I’ve noticed that a fair number of conservative sites just post a video and nothing more. That’s lazy, and I never fall for it unless it’s a video of, say, a riot. In this case, the post included informative excerpts. I’d have preferred the full Cleveland, but I cannot accuse LI of laziness.

          Past that, yeah, if it would mean using a transcript service (not free of charge, I’m sure) and/or then spending an inordinate amount of time proofing it, hell, I wouldn’t do it myself and would expect anyone to do it, Could be that the software doesn’t work as well as I think it would. But I think it’s worth giving it a try; you can trial it for free and find out.

          Keep in mind that my original comment was phrased politely, as a constructive suggestion. I don’t think it rated a snarky, “then do it yourself” reply. It could be that even the software option is too cumbersome and time consuming, but the suggestion was made in good faith. If it doesn’t work, fine.

          If you or anyone else is going to bother posting, I think you’re best off making it accessible and convenient to a variety of users — if it’s not too much trouble, of course. Let me give you an example of a defensive reaction that baffled me. It came from Watts Up With That, a global warming rebuttal site that I have followed for years.

          They recently compiled a very good compendium of failed climate predictions. See the link.

          I contacted them and suggested that they correct a couple of copy editing glitches, eliminate a bunch of redundancies (which I compiled myself and gave to them), and “hyperlink” each of their posts to make them easy to share. This wouldn’t be hard at all, but I got a similar snarky reply.

          I told them what I told you: “Your site, your rules, but why not make it easier to share particular posts so I can post a single link in an online discussion?” Brick wall. It baffles me, because during my career as a journalist (an honest, old-school one), the reader was God, and you wanted to make it as easy as possible, recognizing that people are busy.

          When I switched careers and became a financial analyst, I would write reports for clients who were sitting in front of a fire hose of information. I was highly aware of it, having been one of those clients for part of that career. I tailored voicemails to make them as succinct as possible, and dusted off an old formula for pamphlet writing taught by the best journalism prof I had, and one of the best profs of any kind.

          He called it “30-3-30.” Write your pamphlet for three readers: The 30-second reader, the 3-minute reader, and the 30-minute reader — who would usually be the same person. The idea was to make things digestible, not because the reader is an idiot, but because the reader is busy and wants to figure out how much of his scarce time and attention to devote to your message.

          Bottom line: It’s a busy world, busier than it was when I learned that method in the 1970s. Your audience isn’t stupid or lazy. Your audience is busy. Want to reach as many people as you can? If possible, try more than one approach.

          And speaking of time and attention, my replies have been long. Too long. If I were you, I’d take them in the same spirit of good faith in which they were offered. Still: Your site, your rules.

          Good feedback, but the Professor has already answered. Anything more than we provide is not worth the investment of time/resources. Heck, I seem to remember you complaining that an auto-transcript was incorrect (and you were right), but we don’t have the manpower to provide complete transcripts that are error-free. Maybe you can help by donating to LIF?

          RandomCrank in reply to Fuzzy Slippers. | July 6, 2023 at 5:33 pm

          If I ever complained about an inaccurate transcript, that’s news to me. Could be that I did and forgot that I did, but I don’t think so. Your blog, your rules, but can’t help being baffled. Oh well, lots of things in life are baffling, so I’ll add this to the list. I’ll live.

thad_the_man | July 5, 2023 at 2:02 am

If you don’t have the patience to listen to it, where will you find the patience to read it.

    I and most others can read text MUCH faster than we can listen to speech. And that’s even without the additional benefit of skimming. No patience needed at all.

    RandomCrank in reply to thad_the_man. | July 5, 2023 at 5:09 pm

    Apparently you don’t do much reading. Not only is it faster, but it’s much easier to skip over irrelevant or redundant passages.

Frederick Douglass and Booker T. Washington | July 5, 2023 at 5:06 am

To Prof Jacobson, Ms Kaye, and Mr Benno: Thank you.



F. Douglass
B. T. Washington

What comes next? Anticipate Democrats response being ‘Oh yeah, well how many divisions does John Roberts have?’.

Some professions are self-correcting, and others do not automatically adjust to new data. For example, astronomers change their hypothesis every time satellites send back better data. Lawyers instantly adjust every time the Supreme Court issues a new opinion.

People with E.D. or Masters of Higher Education Administration, in contrast, stick to what they were taught when they were in school, even if it no longer fits the data or if the Supreme Court says it is illegal. Only an active litigation program can address the absence of a functioning feedback loop in the higher education administration profession.

Next Up: Challenge the EEOC’s rules on Affirmative Action.

Under Federal Law, “quotas” are not legal, however in practice, the EEOC requires every “large” corporation (50+ employees) to maintain Affirmative Action ‘goals’ – based on race, gender, and religious affiliation.

When is a “goal” really a “quota”? When there are penalties from the federal government for failing to achieve them. Working in a heavily regulated industry, there is a wide variety of penalties the federal govt can – and actually does – impose on any company that fails to achieve and maintain its Affirmative Action goals.

At my company, I have to sign off on our Affirmative Action QUOTAS every year. Each department has to maintain lists for every job classification: # of positions available for each classification, and then #’s of each race, gender, religion of employees in each classification.

Whenever any position is open, whether we are hiring from outside the company or promoting from within, the first question is: How are the numbers for that position? If the quota is already met, then we can hire/promote based entirely on merit. If not, then ONLY candidates that meet the necessary quota requirement are considered. Applicants that do not meet that requirement are never told that they aren’t being considered at all – they are simply discriminated against.

If none of the applicants would fulfil that quota, then we have to advertise the position again from scratch – even if we had multiple applicants that met/exceeded the job’s requirement already, but did not fill the EEOC’s racial/gender/religious quota.

None of this is voluntary – our management is anything but woke (so, there’s no voluntary imposition of quotas for anything not officially required yet – we do nothing on sexual orientation or gender (as opposed to biological sex), other than not discriminate against).

Since we’re required to hire/promote lesser qualified (or occasionally unqualified) people to meet federal quotas, the best way to minimize the damage is to search for “twofers” and “trifectas”. If a department head can find and hire a black/female/muslim, that checks off 3 separate boxes on their quotas and results in fewer diversity hires.

Everything about this makes my blood boil.