Affirmative Action Hearing, pt. 2

“I think Harvard is toast here.”

By and

Time to talk about Harvard. Returning to the affirmative action debate, David and Sarah consider the differences between UNC and Harvard, unpack the justices’ questions and comments, and ask what kind of diversity Harvard hopes to promote, if at all. They also discuss the preemptive backlash to Justice Amy Coney Barrett’s upcoming book, and the attack on Paul Pelosi.

Show Notes:

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  1. Grandymitchell

    Maybe I'm not in your target audience, but I found this and the preceding podcast both confused and confusing. I was expecting something along the lines of "1) Here's a summary of the plaintiff's arguments; 2) here is a summary of how the justices responded; here's our analysis of 1 & 2 above. Instead I heard what seemed to me a random walk of various topics more or less related to affirmative action. I know you neither want to talk down to your listeners nor leave them completely at sea, but these two podcasts left me...wet! "Boo" regarding Sarah's statement that Harvard started as a METHODIST university! When in doubt, remain silent! David uses the word "invidious" differently from how I'm accustomed to use it -- viz., to mean "causing ill will, animosity, or resentment." Maybe don't use this ambiguous word?

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  2. Eric.Lanser

    Considering admissions relative to the applicant pool is an important test. Roughly, the institution isn't prima facie biased if its admissions match the racial (and religious, income, geographic, etc.) makeup of its applicant pool.

    However, schools can (for both good and ill) influence their applicant pool. Scholars like Frank Dobbin advocate for doing this in a business context, and I'm very surprised it doesn't come up in arguments about school admissions too. Roughly, if an institution wants to improve its racial (or other) diversity and also meet other objectives, then seeking out applicants to meet its diversity goal is a more effective tool than giving a preference by race (etc) to some of its applicants.
    What is particularly striking to me is that this tactic is far more obviously legal. It doesn't penalize any particularized applicants, it shapes the applicant pool and then treats them all the same.

    If schools want to seek racial diversity (and want and need to do so legally) get your recruiters out to schools with minorities, and do marketing so that people with credentials up to your institutions standards are more likely apply to your school. Close the gap in awareness that (e.g.) rich kids with with private college counselors or from prep schools have by advertising your institution (and your merit and need-based scholarships) to high achieving students everywhere.

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  3. Rcroxton

    So if Miss USA can't have given birth, in a state where life begins at conception is every woman who has had a miscarriage ineligible?

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  4. Rcroxton

    David is so well spoken and well intentioned that I find myself feeling bad every time I have to listen to his belief twisting his intellect into a pretzel to justify itself.

    People don't "like" chemotherapy. Nobody wants to have it themselves, everyone would like to see a world where it is never needed. But imagine if a bunch of kooks decided cancer was "god's will" and they wanted to outlaw it?

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    Emily

    Soooo… I sort of stumbled into a replay of the arguments on YouTube and found it fascinating. But, it seemed like the liberal justices were sometimes coaching the lawyers to make the points they wanted them to make. Is that normal? Do the conservatives do it too?

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    Peter.Tanaka.ret

    Two things related to this Pod. My background - Half Japanese American (yes that side was interred in the camps) and worked for Police Departments as a Police Officer, 911 Supervisor and currently as a part time Dispatcher.
    I was surprised to hear that the percentage of Asian applicants had not changed over the years supporting the contention that is why the percentage admitted has not changed. I seems to me that the economic incentive to declare yourself Asian has become more apparent so the collection of the data seems more suspect. Of note my nephew was accepted to Annapolis and Notre Dame among other Ivys, but wait listed by Harvard (Could be the Asian sir name.)
    As to the Paul Pelosi discussion. Having worked or lived in high, medium and low density population areas the 8 minute response time does not seem at all lengthy or unusual. Especially for a non emergency call unless you fault the call taker for not intuiting that the call was more than was being reported. Upgrading priority can endanger the public as response is different. Unless there is a reason that Rich and Powerful deserve higher priority due to their status.

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  7. Ksunday

    Thanks for the deep dive on the second affirmative action case. On the segment about extreme rhetoric and where we are with the political climate, I am curious and I don't mean this to sound snide - if democracy is on the ballot, where is the reform to the Electoral Count Act? Is there any hope this gets done in lame duck?

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  8. Benjamin E Norquist

    I listened to the oral arguments for both cases and to both podcasts. Among my many thoughts and questions, I am wondering about the discourse on both sides about how to read the original intent of the 14th Amendment--either to prohibit all racial discrimination or to prohibit harmful discrimination against a minority. I'd appreciate some more commentary on that question.

    I'm also struck by a lack of attention in the podcast conversation and comments to the ongoing role of race in the United States at cultural and structural levels as a meaningful category. In fact, the weight of the discourse slants the other way in comments that imply that viewpoint diversity is "real" as opposed to racial diversity which is somehow an empty category.

    People make judgement about each other continuously, and race still affects those judgments. When those judgments are made by gatekeepers such as hiring managers, teachers, and bosses or by people with disciplinary power such as police officers, bosses, and teachers those judgments can come with real costs to the person being perceived. That kind of implicit bias is well documented.

    In addition to ongoing negative discrimination, racially marginalized groups also live with the present-day effects of past racist policies and practices such as redlining, the systematic disinvestment by banks in minority neighborhoods, "sundown town" practices, etc.

    We don't LIKE that race still matters, but it does. So whether we have a color-blind policy in admissions or not, prospective students from racially marginalized groups will continue living with other people's bias and with legacies of de jure racism and segregation that have ongoing economic impacts through unequal distributions of generational wealth and cultural capital.

    All that to say, a color-blind policy does not even the playing field.

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  9. Tgies

    Some background: I'm a long-time listener of AO and really enjoy it. 40 years of experience in civil litigation with an emphasis in complex employment litigation. My first post with a comment and a question.
    Comment: I think Sarah said BYU is a state school; it's not.
    Question: I may have missed it, but in your discussion of other areas of the law that address purpose and effect - thinking here of your comments about Arlington Heights and Voting Rights Act cases - i don't remember hearing anything about disparate impact theory. Griggs v. Duke Power (high school diploma Title VII case). Did I miss it? Are you suggesting there's a different formulation in the college admission cases?

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    Ted Gale

    Brief hisotry lesson for Sarah--

    Harvard was founded in the 1630s to train Puritan clerics, and, as Puritanism faded into what one might call Congregationalism, Harvard was considered a Congregationalist institution. Its founding pre-dates the rise of the Methodist movement by roughly a century and a half.

    So, no, it was never Methodist.

    Probably the first Methodist affiliated college in America was Wesleyan in Connecticut (hence the name).

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