Feb. 10, 2022

440: Affirmative Action Heads to the Supreme Court (with Dr. Frederick M Lawrence)

440: Affirmative Action Heads to the Supreme Court (with Dr. Frederick M Lawrence)

Are Affirmative Action policies officially on their last legs?

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Dr. Frederick M Lawrence returns to the program to discuss the Supreme Court taking on Affirmative Action policies, with a 6-3 conservative majority putting the practice of Affirmative Action on shakey ground.


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Brian Nichols  
focusing on winning arguments. We're teaching the basic fundamentals of sales and marketing and how we can use them to win in the world of politics teaching you how to meet people where they're at on the issues they care about. Welcome to The Brian Nichols Show.

Frederick M Lawrence  
Good to be back, Brian, how were you? Pleasure. So far, the the work of Phi Beta Kappa, where I'm the secretary and CEO continues to pace we've been involved in advocacy work for the Liberal Arts and Sciences, higher education in particular, that involves advocacy with respect to making the case for the liberal arts that involves funding for higher education, a lot of activity going on. And I'm happy to tell you that our supporters continue to support us and students continue to join, so things are good at Phi Beta Kappa.

Let's do a little quick history here. The first affirmative action case the Supreme Court decided is now over 40 years old, that's 1978. The case of Alan Baki in the University of California. That was a case in which the court was dealing with actual quotas that the University of California had for the medical school out of 100 seats, something like 20 seats out of the class were reserved for people of color. The court did two things in 1978, it struck down quotas, but it upheld the use of race as one factor can't be the only factor. And it can't be the determining factor, but as one factor in the admissions process. So in fact, for people who follow the court, it was a very interesting configuration of the court, there were four justices who would have upheld the entire thing that the University of California was doing, there were four justices who would have struck the whole thing down. And there was one Justice Lewis Powell, who joined with for saying you can't have quotas, he joined with a conservative bloc of the court to make five votes to say you can't have quotas. But then he turned around, and he joined with the four more liberal justices to make a block of five, you say, but you may take race into account, that's 1978, that pretty much still remains the law of the land. It came back to the court in a couple of cases involving the University of Michigan in the early part of this century. And then again, the University of Texas in 2016. Now, Brian, the part that's a part that's surprising here is if you've been following the dates I just gave you, it was 25 years from the first case to the next one, then it was about 15 years from the second case to the third. Now we're only six years after the most recent case. So this is accelerating the reconsideration of affirmative action. Why is that going on? Well, a couple of reasons. One is that there are two very prominent cases that are up in the system right now, one coming from a private school, Harvard University, the other coming from a public school, University of North Carolina. But of course, the other issue that everybody's talking about is that the composition of the court has dramatically changed in the last couple of years. So there is reason to believe that for the first time in history, the Supreme Court will strike down the use of race conscious admissions policies that have been upheld since 1978.

Brian Nichols  
Interesting, interesting, interesting, I guess right now, a lot of the audience is probably saying, well, is that necessarily a bad thing? And and I guess I will, let me let me ask that question in a more elegant way because We hear the idea of race playing a factor in admissions. And I think at your core, your average person kind of goes, like that just doesn't feel right. Hearing it that I guess being the case. So what are your thoughts there? Dr. Lawrence? Were to my concerns, and maybe to some of my audience is concerns? Are we seeing things through a prison that you're maybe not quite on board with? Or do you see empathy in our positions, of course,

Frederick M Lawrence  
I see empathy in your position, because the issues of race in our country going back to our very founding, and in fact, a long time before founding have been among the core dilemmas that we've dealt with how we've dealt with issues of race in this country. So it's not surprising in 2022, we're still having complicated, difficult, sometimes tense conversations about race. Brian, I would situate this issue in the context of academic freedom. You go back to that Baki opinion, I mentioned in 1978, the court relied on an opinion that Felix Frankfurter wrote back in the 1950s, where he identified what he called the four core principles of academic freedom. And that is that universities get to decide who attends, who teaches there, what they teach, and how they teach it. Now, they can't just do that making it up out of thin air, it's got to be related to the core mission of the institution. But so long as that's what they're doing, then they are the deciders as to who attends the institution in order to accomplish its mission, who teaches there, what they teach and how they teach it. So staying with that, who teaches here idea who attends here idea. The notion is that different schools will approach this differently, but they are allowed to say what's going to be the best mix of students to give us a rich and vibrant learning environment. I can tell you, for example, that I have taught criminal law and criminal procedure for over 30 years. Now, if you have a monochromatic class, everybody's the same color, then issues of race, which are deeply involved in criminal law and criminal procedure in American law, teach differently, the professor has to lecture certain things in which is a much less effective way of getting issues out than when they come from the students. So the admissions offices, if we do our job, right, we're going to get a blend of students, we're going to get a mix of students, and no, we're not gonna have a quota and say, We need 5% of this and 10% of that. But we just want to make sure that everything is taken into account so that you don't have 100% of only one thing and zero of everything else.

Brian Nichols  
And I think it was very refreshing, candidly, to hear the word, freedom, the freedom to be able to make those decisions. I had Dr. Adrian Zhang on the program back a few months ago. And he's he's a big proponent in promoting that F word in academia. Because unfortunately, a lot of professors are afraid to say it. And I'm glad to hear that there is more of a push right now. And we do have an opportunity to install much more of a pro freedom of and you're way you framed it, Dr. Lawrence, much more freedom of education, freedom of choice in that perspective, as it's also the freedom of association. And really the free thought of ideas, being able to have young people have this conversation right now. That's huge. Because before I don't think we were even able to have this conversation without it instantly being looked at through a completely different lens. I'm so glad we're able to have this conversation. So where are we heading? And I guess this is where a lot of folks are curious. You mentioned we have the the supreme court right now with more of a conservative lien. So there obviously is much more momentum to take a step forward here in approaching affirmative action. Where do you see this case going? And then what do you think the implications will be as we look at Academia 510 years from now,

Frederick M Lawrence  
let's start with where this case is likely going. And to do that, let's set the stage by going back to the most recent time the Supreme Court took this up the University of Texas case Fisher against University of Texas, that's 2016. In 2016, the court upheld Texas as affirmative action procedures and plans by a vote of four to three now if you're doing the arithmetic, that sounds like they're short, two justices, and they are it was four to three. The reason there are two justices missing one is Justice Elena Kagan had been the Solicitor General of the United States at the time that case started its way through the courts. So she had to recuse herself. The assumption was, Justice Kagan would have been in favor of affirmative action from other writing that she's done. So that would have made it five to three. Now, the other missing vote was Justice Scalia, who had just passed away. So that was an open seat. Now, if you remember, in 2016, President Obama named Merrick Garland to that see, had Merrick Garland been confirmed. From everything we've read about his writings on the subject, he too would have been in favor of the legality of affirmative action, that would have been six to three, four affirmative action. Well, obviously that's not how things played out. Merrick Garland is not on the Supreme Court. Instead, Justice Gorsuch, who is likely an opponent affirmative action takes that position that moves us back down to five, four if you're doing the headcount. Now watch how this starts to move. Justice Kennedy stepped down from the Court Justice Kennedy voted with the majority, in fact wrote the majority opinion in the University of Texas case, he is replaced by Justice Cavanaugh. We don't know for sure, but there's reason to believe justice Cavanaugh also will be opponent of affirmative action that now flips it to four or five, or if you will, five, four against affirmative action. And finally, and most recently, Justice Ruth Bader Ginsburg passed away replaced by Justice Amy Coney Barrett, who is believed to be an opponent of affirmative action. So you see how what might have been six, three in one direction has turned to six three in the other direction, rather quickly. Now, having said that, the truth is, we don't know for sure how some of these justices will in fact vote. We do know, we do know that there are the three dissenters from the University of Texas case who are still on the court, the assumption is they will still take the same position. And then we've got three new justices, we have to see how they will vote, but in all likelihood, they will be in favor of curtailing affirmative action may be eliminated from it of action. Your question is what happens next for higher education. My sense is that it will not be a single impact for all higher educational institutions, smaller schools, and more affluent schools will be able to afford the resources or have few enough applications that they can still do a pretty careful read through application by application. And they will still be able to say we're going to have a diverse class. And they will not be looking at race per se. But in their look for diversity, it will be a class that will continue to be ethnically diverse. For the larger schools that have some of them 2550, some over 100,000 applications, that's simply not feasible. If they can't give any attention formally to race, then I think those schools are going to have a much harder time having racial diversity representative in their class. And the best way to to predict that is what happened in California, after law law changed, prohibiting the use of race at all as a factor even if the United States Constitution permitted it California law now does not. And when that happened, the percentage of students of color at the University of California system did decrease noticeably. So I would predict what will happen in our big state universities, if in fact affirmative action is struck down is that the racial diversity of those classes will be reduced, in some cases substantially in our smaller schools and our more affluent schools, the difference will be much less significant, I suspect.

Brian Nichols  
Well, Dr. Lewis, I know we have unfortunately, a hard stop here. You have to go teach class guy helped get the the future masses learned. So we're gonna go ahead and let you go do that. But thank you, obviously, we wanted to bring your perspective here to that the program and to the audience. Because this is again, a conversation that is top of mind, especially as it heads the Supreme Court. So thank you for bringing your insights to the audience. Any final thoughts you want to leave the audience with today?

Frederick M Lawrence  
This is clearly an important issue. It's one worth watching. I do think there is a concern when the court changes direction quite so quickly, because the composition of the court changes. Courts have always been above the political fray. If you listen to the words of Stephen Briar just announced his retirement from the court. He you can tell he's almost pleading with the court itself and with the public more generally, to look at the court as something other than just another political institution. When we have these dramatic changes, and it's not just going to be in issues, such as affirmative action, we're gonna see it with abortion cases, this term and perhaps future cases going forward, involving abortion rights, when you have these dramatic changes, because of the composition of the court changing. What it starts to look like is that the court is not dealing with principles of law, but it's dealing with the politics of the justices, if that is to happen. I say two things to watch out for. Number one, I think that hurts the integrity and the legitimacy of the court. Number two, watch the Chief Justice Chief Justice Roberts is very conservative on many of these issues by his own leaning, but he cares deeply about the structure of the court about the reputation of the court, and about the legacy of the Supreme Court. So you may see Chief Justice Roberts putting the brakes on a little bit for dramatic change, if possible for him to do so. Because he wants to protect the integrity of the court. Having said that, we're living in a time where there are five very conservative justices without the Chief Justice. So he alone cannot change it. He is no longer the swing justice. He can join the three more liberal members of the court. But that's not enough to make a majority.

Brian Nichols  
Lots of cases our eye on and with that being said, Folks, if you want to make sure you are in fact keeping your eye on what's happening well I'm going to make it easy for you include all the links to Dr. Lawrence in social media as well. Other links to Phi Beta Kappa and where you can go ahead and see all that's happening in this this case as we go on. I'm sure Dr. Lawrence will be sharing his thoughts there as well. So folks, I thank you for joining us on the program. If you got value from today's episode, please do us a solid go ahead and share it. But with that being said, Dr. Frederick M. Lawrence, thanks for joining the program.

Frederick M Lawrence  
Pleasure. Nice being with you, Brian. Take care.

Brian Nichols  
All right, sir. We are clear and again, I'm so sorry that mice

Transcribed by https://otter.ai

Frederick M. LawrenceProfile Photo

Frederick M. Lawrence

Frederick M. Lawrence is the 10th Secretary and CEO of the Phi Beta Kappa Society, the nation’s first and most prestigious honor society, founded in 1776. Lawrence is a Distinguished Lecturer at the Georgetown Law Center, and has previously served as president of Brandeis University, Dean of the George Washington University Law School, and Visiting Professor and Senior Research Scholar at Yale Law School.

An accomplished scholar, teacher and attorney, Lawrence is one of the nation’s leading experts on civil rights, free expression and bias crimes.Lawrence has published widely and lectured internationally. He is the author of Punishing Hate: Bias Crimes Under American Law (Harvard University Press 1999), examining bias-motivated violence and the laws governing how such violence is punished in the United States. He is an opinion contributor to The Hill and US News, frequently contributes op-eds to various other news sources, such as Newsweek, the Boston Globe, the Philadelphia Inquirer, the Observer, the NY Daily News and The Huffington Post, and has appeared on CNN among other networks.

Lawrence has testified before Congress concerning free expression on campus and on federal hate crime legislation, was the key-note speaker at the meeting of the Organization for Security and Cooperation in Europe (OSCE) on bias-motivated violence, was a Senior Research Fellow at University College London, and the recipient of a Ford Foundation grant to study bias-motivated violence in the United Kingdom. Lawrence is a trustee of Beyond Conflict, serves on the Executive Committee of the Board of Directors of the National Humanities Alliance, the Editorial Board of the Journal of College and University Law, and the National Commission of the Anti-Defamation League, and has been a Trustee of Williams College and WGBH.

At Phi Beta Kappa, Lawrence has focused on advocacy for the arts, humanities and sciences, championing free expression, free inquiry and academic freedom, and invigorating the Society’s 286 chapters and nearly 50 alumni associations. As president of Brandeis, Lawrence strengthened ties between the university and its alumni and focused on sustaining the university’s historical commitment to educational access through financial aid. His accomplishments during his presidency included restoring fiscal stability to the university and overseeing record setting increases in admissions applications, undergraduate financial aid and the university’s endowment. An acclaimed teacher, Lawrence taught an undergraduate seminar on punishment and crime that was one of the most popular undergraduate courses offered at Brandeis.

Lawrence was widely regarded as a champion of the fine arts. He revitalized the university’s Rose Art Museum, recruited and hired a dynamic new museum director, and commissioned the Light of Reason sculpture, creating a dynamic outdoor space for the Brandeis community.

Prior to Brandeis, Lawrence was dean and Robert Kramer Research Professor of Law at George Washington University Law School from 2005 to 2010. During his time at GW Law, Lawrence recruited the strongest classes in the school’s history, and his five years as dean were five of the six highest fund-raising years in the school’s history. He was Professor of Law at Boston University School of Law from 1988 to 2005, during which time he served as Associate Dean for Academic Affairs and received the Metcalf Award for Excellence in Teaching, the university’s highest teaching honor.

Lawrence’s legal career was distinguished by service as an assistant U.S. attorney for the southern district of New York in the 1980s, where he became chief of the Civil Rights Unit. Lawrence received a bachelor’s degree in 1977 from Williams College magna cum laude where he was elected to Phi Beta Kappa, and a law degree in 1980 from Yale Law School where he was an editor of the Yale Law Journal.