#1571 Understanding what we lost with the repeal of affirmative action (Transcript)

Air Date 7/11/2022

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JAY TOMLINSON - HOST, BEST OF THE LEFT: Welcome to this episode of the award-winning Best of the Left podcast, in which we shall take a look at the history and unceremonious end of affirmative action for college admissions, that were an attempt to correct the compounded impact of hundreds of years of systemic racism. Sources today include Straight White American Jesus, More Perfect, Notes from America, Amicus, and Amanpour & Company, with additional members-only clips from The Nation and Straight White American Jesus.

Affirmative Reactions Part 1 - Straight White American Jesus - Air Date 7-1-23

BRADLEY ONISHI - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: So let's just talk about history real quick. So some of you might be thinking, all right, so where did college admissions and affirmative action and all that start? So let me talk through an article by Genevieve Carlton, uh, Dr. Genevieve Carlton, who wrote about this. Carlton explains, and this is a very basic history, others have done this as well, that the phrase first appears in 1961, and this is when JFK creates the Committee on Equal Employment Opportunity and a Black lawyer named Hobart Taylor, Jr. wrote the phrase "affirmative action" in the margins of a draft of Kennedy's executive order.

So initially, affirmative action encouraged employers to hire marginalized people. So [00:01:00] if we think of the early sixties, this is a time when there is a kind of growing emphasis and momentum in American society that says, look, when it comes to hiring, you should consider those who have been marginalized, namely Black Americans and other people of color, and women. Okay? Now this leads to affirmative action executive orders by subsequent presidents. So, Lyndon Johnson and, I just wanna note, Richard Nixon. Both passed executive orders to end race discrimination in hiring. Okay, so initially we're talking about hiring here, but then we have Johnson.... so let me talk through these executive orders.

In 1966, Johnson is really focused on contractors and telling them to take affirmative action to ensure that applicants are employed and the employees are treated during the employment without regard to their race, color, religion, sex, or national origin. It's a couple years later that Nixon in 1969 promises affirmative action in government employment. So we have the private sector, we have the public sector in terms of hiring. Now, soon thereafter, like 1969 and after, colleges voluntarily adopted [00:02:00] similar policies to combat racial discrimination. Okay, so in 1969, many elite universities admitted more than twice as many Black students as they had the year before. So friends, I just wanna stop and say, these executive orders, one by Richard Nixon, a Republican, okay?, had a cultural, uh, they put in place a cultural shift when it came to college admissions. Colleges were taking their cues from these executive orders and the ideas of hiring people who had been marginalized and saying, Hey, maybe we need to consider that there are folks coming from marginalized communities whose racial identity or marginalized identity needs to be considered when it comes to college admissions. Okay? Jerome Karabel is a UC Berkeley sociologist, and he says it this way. "I don't see how you can understand it apart from the upheavals on campus, racial upheavals in the larger society, the general upheavals around the world. Speaking of affirmative action and its context in the Civil Rights Movement and an era when American society was really coming to grips with systemic racism and systemic oppression [00:03:00] of a number of people, I can't help but think about 1968, 1969, the creation of ethnic studies in San Francisco and in the Bay Area through a pan-racial coalition of Latinx and Black and


BRADLEY ONISHI - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: Asian-American activists and student organizers."

Friends, I know we're gonna come back to this later today, but what I want to put the emphasis on right now and underscore is that affirmative action and considering race in college admissions was a consideration of the ways that certain Americans had been systemically oppressed throughout our history. Okay? It was a consideration of our systems and our society as a whole. What the Supreme Court has done, and I know Dan's gonna talk about this, and I will too, is really now started to put the emphasis on the individual. And say, Oh, no, we can hear about the individual's experience of racism or marginalization, but we're not gonna consider systemic racism or systemic oppression or anything like that when it comes to considering these kinds of things.

The Architect Part 1 - More Perfect - Air Date 12-7-17

MORE PERFECT TEAM: In any case, fast forward a little bit, he's living in Houston.

EDWARD BLUM: Kind of a garden variety existence.

MORE PERFECT TEAM: And something happens that sends him [00:04:00] on this entirely new path. Basically, he and his wife move to a new neighborhood. They move from the suburbs into the downtown area, more urban.

EDWARD BLUM: And in 1990, when we went to vote for the first time in our new neighborhood, I realized that the Republican party had not fielded a candidate to oppose the Democrat incumbent running for Congress. This is a district that has almost 600,000 people and you don't have a choice? You've only got one person running?

MORE PERFECT TEAM: Bloom decided to run himself.

EDWARD BLUM: I lost. That was no great surprise to anyone.

MORE PERFECT TEAM: He actually lost by 32 points.


MORE PERFECT TEAM: along the way...

EDWARD BLUM: something really unusual happened.

MORE PERFECT TEAM: During that campaign, he and his wife Lark, they decided they were gonna go meet voters in their district. They got a giant printout of all of the addresses in the 18th Congressional district --

EDWARD BLUM: what was then called a walking list.

MORE PERFECT TEAM: And they just started going door to door,

EDWARD BLUM: meeting people, handing out literature.

MORE PERFECT TEAM: And they'd walk down, say Oak [00:05:00] Street.

EDWARD BLUM: I would take the even side of Oak Street and my wife would take the odd numbered side of Oak Street and we would start to walk and --

MORE PERFECT TEAM: and he says, very quickly they realized that the district's shape was funny. Some houses on one side of the street would be in the district, and then houses on the other side wouldn't. And sometimes the district would snake down a highway, catch an apartment complex, come back.

LARK BLUM: It just didn't make sense.

MORE PERFECT TEAM: this is Lark B. Bloom,

LARK BLUM: wife of Edward Bloom. It was peculiar because we had maps that we had to follow and it was very odd the way some streets were in the districts and some weren't. Took a while for it all to really sink in as to how this could happen.

EDWARD BLUM: After I guess about a week of this, we realized that neighbors had been separated almost house by house because of their race.

MORE PERFECT TEAM: He comes to believe that the reason this was done [00:06:00] was for the explicit purpose to create a majority African-American district.

This isn't untrue.

PRESIDENT LYNDON JOHNSON: This act flows from a clear and simple wrong.

MORE PERFECT TEAM: Part of the reason this was done was the Voting Rights Act of 1965.

PRESIDENT LYNDON JOHNSON: Millions of Americans are denied the right to vote because of their color.

MORE PERFECT TEAM: This act was a giant step forward in civil rights. One of the primary things it did is eliminate barriers to voting, like poll taxes and literacy tests, all these strategies that had been used to keep minorities from voting.

And then this other thing it did, in a roundabout way through a series of interpretations, is it encouraged the creation of districts where the majority of voters were minorities. And that's because one of the strategies that had been used previously to dilute the minority vote was to take minority communities and -- they called it cracking. They split them apart into many different districts so that they were never in the majority enough to elect a representative. So the Voting Rights Act tried [00:07:00] to correct that.

The 18th Congressional District was one of these majority minority districts.

EDWARD BLUM: The district was drawn by the Texas legislature to have a slight African-American majority, I think about 51% African-American.

MORE PERFECT TEAM: But this was the problem according to Blum. The way they got to that African-American majority was by creating this district that zigzagged all over the city and cut through neighborhoods.

EDWARD BLUM: I could not understand. People live close together. They sent their kids to the neighborhood schools. They shopped in the neighborhood shopping centers. They were worried about neighborhood issues. To break these neighborhoods apart by race seemed so wrong to me.

MORE PERFECT TEAM: In his mind, this law was actually not limiting discrimination, but actually perpetuating it.

EDWARD BLUM: Well, yeah.

LARK BLUM: I don't know what the average person upon realizing this would've done.

EDWARD BLUM: But I decided to file a lawsuit.

MORE PERFECT TEAM: He decided to sue the state of Texas.

EDWARD BLUM: Called a few friends who lived in the 18th District,

MORE PERFECT TEAM: a [00:08:00] racially diverse group of people,

EDWARD BLUM: an African-American, a Hispanic, and an Asian. Kept looking and looking and looking until I found a lawyer that I could afford.

MORE PERFECT TEAM: $7,000 a month.

EDWARD BLUM: We filed a lawsuit challenging the constitutionality of Texas's redistricting plan.

MORE PERFECT TEAM: The basic charge was, yes, the Voting Rights Act was good in its day, but now it was being used as this excuse to segregate people into racially polarized districts.

EDWARD BLUM: It worked its way through the lower courts, and to my shock and surprise, in 1995...

SUPREME COURT JUSTICE: Well, your argument now, number 94805 George W. Bush versus Alvera...

EDWARD BLUM: The Supreme Court took it up,

MORE PERFECT TEAM: and you went to oral arguments?

Yeah, we all did.

ARCHIVE RECORDING: Mr. Chief Justice, and may it please to court.

EDWARD BLUM: So there we all are. Our opponents step to the lectern and...

ARCHIVE RECORDING: At issue in this direct appeal is the constitutionality of three congressional districts.

EDWARD BLUM: They make their arguments...

ARCHIVE RECORDING: that the court below erroneously rule or racially gerrymandered.

MORE PERFECT TEAM: Texas, basically said, y'all, we have to put people together by race.

ARCHIVE RECORDING: The Texas legislature [00:09:00] has the obligation to satisfy federal requirements, and the Voting Rights Act is a federal requirement.

MORE PERFECT TEAM: Like, remember the Voting Rights Act? We're trying to make sure that there are enough minorities in this district so that they have a chance to elect a representative.

EDWARD BLUM: Then our advocate:

ARCHIVE RECORDING: Thank you, Mr. Chief Justice. May it please the court...

EDWARD BLUM: made his arguments:

ARCHIVE RECORDING: Even if strict scrutiny is absolutely...

MORE PERFECT TEAM: Blum's lawyer basically said, but look at the map. The map is bizarre. And the only reason it could have gotten this way is because you're only thinking about race, only race. Think about it. That seems messed up. Isn't that messed up?

ARCHIVE RECORDING: It doesn't matter what your ultimate goal is, you cannot use certain forbidden tools. Race is forbidden by the 14th Amendment to be used as a tool.

But in his example, the people, St. Mary's...

EDWARD BLUM: It was a very tense situation.

ARCHIVE RECORDING: I'm not asking about this situation. Do you know any other situation in the law in which we allow race to be used as a surrogate for anything unconstitutional, but to use it as a more soft racism? How is this done? I thought that's how you said this, your Honor.

Did you concede that?

Or did you say it would require strict scrutiny?

You did say that, didn't you? Let me explain. [00:10:00] Did you say that or not?

Let me find out.

Did you say that or not?

MORE PERFECT TEAM: So in the end, the Supreme Court gives out this very hair splitty decision that I think gets at this deeper question that in our society and in our discourse, we just haven't figured out how to talk about it in a way.

And it basically said this: look, if you're defining race just as the color of someone's skin, the government cannot use that in any way. That's against the Constitution. On the other hand, if you take this wider view and you look at race in the context of history, social context, then how can the government address discrimination without taking race into account? They have to. So it's this difficult balance. You can't look at race, but you have to look at race. And the Supreme Court says to Texas, Look, all you're doing in this case is sorting people based on how they're labeled on a census. You're not looking at that wider context. You're not looking at if these communities live next to each other, if they share common interests. You're just sorting them based on race alone, and [00:11:00] that's not good enough. You can't do that.

EDWARD BLUM: When the opinion came down, the Supreme Court ruled in our favor five to four. That was quite a day. The day that we won that lawsuit, I was --

MUSIC: I've got the world on a string --

EDWARD BLUM: hooked forever.

What Does Color-Blind Really Mean - Notes From America - Air Date 7-10-23

KAI WRIGHT - HOST, NOTES FROM AMERICA: I wanna start with the recent history. Uh, because in the book, uh, you quote Newt Gingrich saying something in 1997, that sounds exactly like the Supreme Court in 2023, he said Racism will not disappear by focusing on race. So take us back to the mid to late nineties. Why did you point to there as the modern evolution of what you call colorblind racism?

How did this this thing emerge in today's politics?

IBRAM X KENDI: So, I believe it was in, in 19, uh, 97 when President Clinton at the time decided to lead what he called a national conversation. Uh, On race and, and, [00:12:00] and really on racism. And Republicans, by and large, uh, challenged that decision by stating that race was no longer a factor, that race didn't exist, that the nation.

Was colorblind and, and the term colorblind in reaction to President Clinton's, uh, national conversational race. And sort of, he put together this, uh, committee, which I believe was, was chaired by the eminent historian, John Hope Franklin and, and. But that was the reaction that we don't need to, to discuss race, uh, let alone eliminate race, be be because the nation is, is, is, is colorblind.

KAI WRIGHT - HOST, NOTES FROM AMERICA: And I think about, you know, this word colorblind. I, you know, I think about, you know, I grew up in the early eighties. In the eighties and early nineties, um, and I just remember how people used to say proudly, you know, like, I'm colorblind. I, I'm colorblind. I do not see race. That was proof of an evolved posture on race relations.

And I always felt some kinda way when I heard it as a young [00:13:00] man, even though I didn't really have the words or the language for why it was bothering me, is, is, is this related, um, to that, do you remember that, how that used to be the thing that people would say, just individuals? Is this related what to what we're talking about here in terms of what the colorblind racism that

IBRAM X KENDI: you're describing.

It, it, it is. And, and I, I think you, you had many people who were, were fed this mistaken belief that the problem isn't racism isn't racial disparities isn't racial inequities. That we can empirically document that. The problem is talking about race is merely identifying by race. And if we. Somehow stop identifying by race.

If we stop talking about race, then apparently race will go to go away. That's like saying if we stop talking about cancer as a cancer survivor, that suddenly this, this, this epidemic of, you know, of cancer will go away. I mean, it was, it was a folly then, and it remains a folly. Right.

KAI WRIGHT - HOST, NOTES FROM AMERICA: But the idea as it emerged as sort of a political thing, moving from, you know, the, and, and I'm [00:14:00] interested in this dichotomy between like what, you know, the, the, the common sense thing that I can imagine, you know, individuals who are not, uh, you know, students of racist ideas say, oh yeah, great, I shouldn't be thinking about race.

That's a very straightforward and common sense sounding thing. And then how that becomes a political tool, um, for reversing, um, public policy. Uh,

IBRAM X KENDI: Go ahead. Well, it, it became a political tool largely because by the 1960s and especially the 1970s, a, a growing number of people who recognized. Widespread racial disparities, uh, also recognized that we could not eliminate those racial disparities by ignoring them.

We actually needed to take affirmative action in order to close those, those racial gaps, and so those who wanted to conserve those racial disparities, Tried to say that no, you who are trying to close, uh, those who I should say were trying to conserve those [00:15:00] disparities, said those who are trying to, uh, reduce them are the new problems.

I mean, it was, it was nonsensical. Uh, but many of the people who, who claim colorblindness or who advocate for race neutrality have no plan for reducing racial disparities. And typically state, uh, black, brown and indigenous people are underrepresented. At the most selective colleges because there's something wrong and inferior about them.

The very people who say race is not an issue, hold racist ideas.

KAI WRIGHT - HOST, NOTES FROM AMERICA: In those late nineties, mid to late nineties when Bill Clinton was holding his conversation on race and Newt Genge began ranting again, ranting for colorblindness, um, um, one of the things that, arguments that you make in the book, that is that we were at a moment, a unique moment of, uh, surge in anti-racism.

And anti-racist organizing and consensus around anti-racist ideas. Can you just make that case? And, and thus, this was something of a backlash. I don't know if people remember that [00:16:00] moment. Can you? What, what, what are you talking about

IBRAM X KENDI: there? Yeah, so we're, we're talking about the, the early, I should say the late 1980s and the early 1990s.

That was the rise of, of conscious hip hop. Uh, that was the rise of, of black studies and colleges and universities. That was the rise of, of critical race theory in, in law schools. Uh, that was the rise of all sorts of, uh, anti-racist, uh, Black and indigenous and, and native, uh, organizations who, who were clamoring for self-determination and empower.

And, and, and of course, uh, there was a, a tremendous backlash that stated, no, the problem isn't racism. The problem of these people who were organizing against racism, and that sounds very familiar to this day.

KAI WRIGHT - HOST, NOTES FROM AMERICA: Yeah, the, the backlash part of it certainly sounds very familiar to it today. Uh, walking backwards through this history, so we're, we're, we're in the, you know, in the eighties and nineties, this idea of colorblindness starts becoming a, a political tool.

Walking back through this history, you write in stamp from the beginning about the Supreme [00:17:00] Court's 1978 ruling that upheld race, race-based affirmative action. But with this important change in the logic, it was, it was now justified because it created diverse campuses. Which was seen as a benefit for all students.

That's very different, uh, from something that sought to counter the racist practices that had kept particularly black students outta many universities. I think a lot of people are probably familiar with that case. Now. It's come up a lot in the debate over the latest ruling, but I don't hear a lot about the dissenting opinions from the liberal justices in that case.

And in your book you point to Harry Blackmon who wrote, I want to, I want to quote this. He wrote in his dissenting print, Opinion. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. And I just, I was revisiting that, uh, after this ruling.

I was going back through your book and I revis revisiting that and I thought, oh, it is impossible to imagine a public official saying something like that today. Do, do you agree with me? Is that, am I, was it just felt like a, [00:18:00] a, a time capsule from another planet?

IBRAM X KENDI: Indeed. And, and, and I think, I think you have some elected officials who, who speed around the bush.

But, but, but Justice Blackman said it very directly and, and I agree. It'd be hard pressed for many elected officials, even those who are defending affirmative action, uh, to, to say that today.

MAGA SCOTUS Is Back - Amicus - Air Date 7-1-23

MICHAELE TURNAGE YOUNG: There was one opinion why there were two cases when cert was granted in these cases. They were consolidated. And then we had Justice Jackson who was appointed to the court. And in light of her service on the Harvard Board of Overseers, she declared that she would recuse herself from the Harvard case.

And the next thing we knew, we were getting an order stating that the cases would be deconsolidated for consideration. And they didn't give a reason, but we presumed that that's so that Justice Jackson could be allowed to participate in the consideration of the UNC case. And now we are getting an opinion that is the two rolled into one with the footnotes stating that Justice Jackson didn't take any part in the consideration of the UNC case.

DAHLIA LITHWICK - HOST, AMICUS: And we have UNC is a public [00:19:00] school, we had a state school, and Harvard is a private school, and this was an effort to resolve it for all colleges, except military schools, which we'll get to in a minute. But this resolves it across the board, right? So, UNC we're looking at it under the constitutional claims and Harvard we're looking under statutory claims.

MICHAELE TURNAGE YOUNG: Right. So the UNC case, which is akin to other challenges to raise conscious admissions that have come before the court. UNC is a public school. It's known by many to be the oldest public university in the country. And so the lawsuit that Students for Fair Admissions brought against UNC was filed under the Equal Protection Clause of the 14th Amendment of the US Constitution. So just like in previous cases where there were challenges to the race conscious admissions policies of public universities, that was brought under the Constitution.

Now Harvard, of course, is a private school, and so instead of filing suit against Harvard under the Equal Protection Clause, which requires state action, the lawsuit was filed challenging [00:20:00] the race-conscious admissions policy under Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination on the part of federally-funded institutions. And so Harvard, of course, receives federal funding and so they can be sued in that way.

I don't know if I would say that this case resolves the question for all universities writ large. I think theoretically speaking, there might be some university out there that is both private and does not receive federal funding. And of course that question was not before the court. And I'll also note very quickly that the question of whether race can be used in college admissions at schools that are remedying intentional discrimination is also not a question that was before the court. So that's another thing to keep in mind, just like the military carve out that we saw in that footnote.

DAHLIA LITHWICK - HOST, AMICUS: I guess I just wanna ask you, after oral arguments in the case, I think we were surely expecting this outcome. I'm not sure we were expecting the breadth and sweep and sort of confidence of the Chief Justice's majority opinion. And I think maybe the reason it was a little bit [00:21:00] surprising, Michelle, is that he had modulated some of his views on race in the Voting Rights cases, just in the weeks before, we saw him, a lifelong opponent of the Voting Rights Act, suddenly changing his mind. I'm trying to -- and I know it's not your job to parse the inner workings of the Chief Justice's thoughts about race, but do you have a useful frame to think about why he was willing to bolster the Voting Rights Act at the same time that he was willing to really cut into the heart of affirmative action as it's existed for many decades?

MICHAELE TURNAGE YOUNG: It seems like a patent inconsistency, right? It's difficult to understand. What I will say is that Allen v Milligan, the Voting Rights case, it was a quintessential case of vote dilution. It was so clear. And perhaps this is an instance where we are seeing a jurist who can recognize racism in its most egregious forms, but may have some difficulty wrapping his mind around the concept of something [00:22:00] that looks more like prophylactic relief, if you will.

So here it seems like you have the justice essentially saying and repeating what other Supreme Court jurists have said, that surely we can't remedy societal discrimination. Kind of throwing their hands up as though it's an act of futility. And so we did see some language in there quoting Justice Powell in the Bakke decision, talking about how remedying societal discrimination is not a compelling government interest that can justify the use of race and college admissions. And we saw some discussion about that from Justice Roberts in the majority opinion as well.

DAHLIA LITHWICK - HOST, AMICUS: Could you reflect for a minute on, I think in the clear light of having read the opinions a couple times, the real indignity is not just doing away with race conscious affirmative action, but this colorblindness theory that is propounded by the majority, it's certainly brought to its maximalist reach under Clarence Thomas in his concurrence. But it's just these references to [00:23:00] Justice Harlan dissenting in Plessy, it's references to Brown v Board and the career of Thurgood Marshall, as though this is in line with a long storied painful history of civil rights victories. And I think Sherrilyn Ifill was the person who describes this as gaslighting. It's one thing to do away with affirmative action. It's another to cast yourselves as the natural progeny of Thurgood Marshall in so doing. And I know this is a bit of a party trick, we see it all the time, right? Associating yourself with Dr. King while undermining his legacy.

But it does feel sort of extra, extra -- I don't know what the word is, Michelle -- Trolly? Ghastly? Ghastly works better than trolly. I am trying to think about how that lands at the Legal Defense Fund, when you are hearing -- you see it in the dissents, this just furious, do not use Thurgood Marshall's name as part of this project.

But I I just wanted you to have a minute to reflect on how that lands.

MICHAELE TURNAGE YOUNG: It's jarring to see Brown v [00:24:00] Board of Education and the legacy of Thurgood Marshall being weaponized in this way. Thurgood Marshall spent years working to fight de jure segregation and remedy the vestiges of de jure racial segregation. Brown v Board of Education was the Supreme Court intervening and saying that we're not going to have de jure racial segregation in this country. We are not going to deny educational opportunities to Black people. We are not going to allow this situation that is relegating Black people to second class citizenship. And we will employ race-conscious remedies to cure the vestiges of de jure segregation. And so for that to be the actual history of what happened, and then for this court to turn around and say, actually, what Brown v Board of Education, Thurgood Marshall stood for was the idea that you cannot do anything about societal racial [00:25:00] discrimination, and what's more, we're gonna just blind ourselves to racial inequality. We're not going to allow for the consideration of race. It's jarring. It feels like they are turning Brown on its head using Brown, which desegregated our country, to resegregate higher education.

The Architect Part 2 - More Perfect - Air Date 12-7-17

EDWARD BLUM: So I did, with Students for Fair Admissions, what I did with the University of Texas. And that is, working with friends and allies who yearn for the day that race and ethnicity is not a part of university admissions, set up three new websites: HarvardNotFair.org, UNCNotFair.org and UWNotFair.org, W being Wisconsin. So it was our hope to find students who had been rejected from those three schools, willing to join Students for Fair Admissions, and let us proceed into [00:26:00] federal court. And that's what we did.

JAD ABUMRAD - HOST, MORE PERFECT: Ed told me he got hundreds of responses to these websites from students who felt like they'd been discriminated against. He winnowed it down to just students he felt had the most merit.

EDWARD BLUM: I talked to the kids, I talked to their parents, each of those kids and their parents who agreed to join and participate as sort of a participating member in a lawsuit. I got on a plane and went to visit with them, learned about their background, let them ask me questions.

JAD ABUMRAD - HOST, MORE PERFECT: And who are they? What could you tell me about them?

EDWARD BLUM: Well, for the Harvard case, they are all Asian. Many of them are children of immigrant Chinese children of first generation, Korean and Vietnamese, and they have superlative academic records. I mean, just startlingly so. Perfect GPAs, perfect SATs, and ACTs, active in sports, lots of volunteer efforts.

JAD ABUMRAD - HOST, MORE PERFECT: And how many of them are directly [00:27:00] associated with the case?

EDWARD BLUM: That is something that the judge in the Harvard case has placed under seal, wisely.


EDWARD BLUM: Well, we remember what happened with the harassment of Abigail Fisher.

ARCHIVE RECORDING: Bitch, if you don't take your little ass on somewhere.

Maybe if your grades didn't suck, you dumb ass, maybe you would've gotten into a good college.

Becky, with the bad grades, really happy you and your racist lawyer got shot down.

EDWARD BLUM: Abby was hounded. Abby was threatened. We learned an important lesson, and that is: although there may be students who are brave enough to put their name on a lawsuit, the consequences can be dangerous and frightening. So all of the students involved in those three cases, Harvard, UNC, and the University of Texas, have standing as members of the organization, and their [00:28:00] names, their addresses, their email will never be made to the public.

JAD ABUMRAD - HOST, MORE PERFECT: It's a funny thing though because the idea of a plaintiff, even if it is often in a way a theatrical construct, it's strange to have plaintiffs that you can't examine and that you can't say, okay, who are these people exactly? What are their circumstances? And you're right, Abigail Fisher, I think, was this subject of some very hurtful kind of harassment. At the same time, who she was was a helpful starting point for the conversation about whether this should exist. I mean, affirmative action or whatever you would call this, doesn't happen in the court, it happens in the world. It happens in society. And this is something that affects all of us.

EDWARD BLUM: Well, this is very common in federal lawsuits. The ACLU, which is a membership organization, often sues in the name of the organization, disclosing only to the courts their members who have been directly harmed by this.

So what we're doing is not unusual.


Okay. So, you've said in interviews on this lawsuit that Asian-American students are being penalized for [00:29:00] being a high-achieving minority. How do you argue that they're being penalized?

EDWARD BLUM: Well, in litigation like this, we know that the court allows the use of race and ethnicity in admissions. What we also know is that you cannot, as a university, have too heavy of a hand using race and ethnicity. And furthermore, numeric quotas are completely forbidden.

And how we show that Asians are being targeted in the Harvard case is to look at the number of Asians that have applied to Harvard, and what percentage year after year after year, has Harvard admitted. And what we have found is that from 1992 through 2013, the percentage of Asians that Harvard admits has been remarkably flat. In fact, in 1992, 19% of Harvard's freshman class was Asian, [00:30:00] while in 2013, 18% were Asian. Now that doesn't mean much until you realize that the number of Asians applying to Harvard during this period of time better than doubled.

JAD ABUMRAD - HOST, MORE PERFECT: Just a quick note here. Harvard hasn't actually released data on ethnicity and admissions for the years he was talking about, so we can't confirm the numbers he just used. We know that Ed Blum was drawing in part from the National Center for Education Statistics, which is a government organization.

So, And by the way, when he says 19% of the freshman class, it turns out the number he was using refers to more than just freshmen.

Asian Americans + Affirmative Action - Straight White American Jesus - Air Date 7-5-23

DR. JANELLE WONG: So in the court case, you know, race can still be, expressed experiences with the race can still be shared as part of the college essay. Colleges can still ask about it, for instance. In California, the consideration of race is banned in college admissions. And in that case, we still see a test score differential. And that test score differential is in [00:31:00] part because of these socioeconomic differences between Asian-Americans and other groups. And so I think there's very little evidence that Asian-Americans have to have a higher test score and that not, and that any kind of difference between test scores is due to anti-Asian discrimination in these cases, because we also see that, I mean, it kind of, if you think through the case a little bit more deeply than the headlines, then it also becomes obvious that, you know, there are going to be differences between groups in terms of test scores, average test scores because of resources, and for those groups that don't, those students that don't score as high on a test, they might have to do a little bit better on other metrics.

Now, the mistake in this case is that people were like, Oh, you have the highest test scores, well, you should also be getting the highest personal ratings. Well, that's not necessarily true. Other groups that don't have those test scores are gonna have to show more strength in those other areas.

BRADLEY ONISHI - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: So we have students who are, yeah, if we take a student X, who has a very high test score, and I actually remember somebody from my high [00:32:00] school, they got a perfect score on the SAT, but as a college candidate, they were not necessarily at the top of the ranking when it came to other aspects of their portfolio. And there were some of us in high school who thought, Well, so-and-so got a perfect score in the SAT. Shouldn't they just get admitted to Harvard or to MIT? And we sort of had to realize as 16 year olds, Oh that's not how it works. You actually have to like write a personal statement and you have to show your, all these other aspects of your dossier.

Now let's come back to the model minority myth. And how the model minority myth might play into the factors in a application that do go beyond the standardized test score. When we talk about those other components, the model minority myth basically says that Asian-Americans are the model minority. They're hardworking, smart, quiet, peaceful. There's a lot of ways that it's sort of manufactured. How does this play into the process of college admissions in ways that are hurtful, perhaps, and in ways that sometimes unfortunately, are advantageous.

DR. JANELLE WONG: So, you know, Edward Blum, the white legal activist who brought this suit with Asian-American [00:33:00] plaintiffs, Asian-American plaintiffs, by the way, who never testified in the trial. The only two Asian-Americans who testified in the trial were college students who defended affirmative action and opposed the lawsuit. But Edward Blum suit makes much of this the fact that the Asian-Americans might have been subject to implicit bias in the ways in which their applications were evaluated, and what he brought forward were a small number of applications that his team reviewed, and he had access to a lot of applications, he didn't bring back any that showed discrimination, by the way. But he did bring forward a few applications that said things like Asian-Americans were, an applicant was very quiet or quiet and strong. And of course I saw this and I was like, Oh my God, because you think this is the model minority stereotype and it's hurting us because these readers are thinking, [00:34:00] Asian-Americans are like these passive nerds that don't have leadership qualities. But then if you read through the court documents, you see that those exact same comments - very quiet, quiet and strong - were comments that were also written on Black, Latino, and White applicant files as well.

This was not an Asian-American thing. And so, you know, there's a lot of fears invoked here because of the model minority myth. Of course, I'm ever vigilant for the model minority myth. But in fact, you know, and I'm not saying Asian-Americans don't face implicit bias. They do, right? Asian-Americans do experience implicit bias that they are nerdy or quiet, as you know, but all non-White groups experience implicit bias and Asian-Americans, and I think we need to contend with this, you know, that stereotype that we are quiet and nerdy, that is what fuels this idea that we're also super competent [00:35:00] when it comes to academics. That we are hard workers who are really smart. And this provides actually, an advantage and the court case did show that Asian-Americans had a bit of an unexplained higher rating on the academic rating beyond test scores, beyond grades, and that we can attribute to this implicit bias that really no other non-White group benefits from in that way. And there's really a kind of danger here. Within our own community. Internalization of the model minority myth, internalization of the idea that we work harder in value education more than other groups, researches have shown that that is associated with anti-Black attitudes. And you know, it's just a sort of snowball effect.

BRADLEY ONISHI - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: Once again, it shows the ways that the model minority myth is a divide and conquer strategy. If you can have, if within the Asian-American community, and I have seen this firsthand in my own family, if you can have Asian-American people who adopt and accept the model minority myth that, Oh yes, somehow we are [00:36:00] as Asian, Asian-American people, something, something, something smarter, uh, harder working, et cetera, oh, that must mean that other groups, minority groups, uh, other groups who are non-White must be less, they must be different. Right? And you can see how it really has a pernicious effect across the board.

What Does Color-Blind Really Mean Part 2 - Notes From America - Air Date 7-10-23

KAI WRIGHT - HOST, NOTES FROM AMERICA: And one of the ideas, one of the racist ideas that you most directly, uh, commented on following the Supreme Court's ruling.

On affirmative action was the doctrine of separate but equal. You wrote about this in the Atlantic. Um, this is of course the idea that made racial segregation legal in the first place. How do the ideas in the court's affirmative action ruling have their lineage in separate but equal?

IBRAM X KENDI: Well, ironically, uh, chief Justice John Roberts, in his majority opinion in the, in the affirmative action case, recently talked about.

The notion that the schools were separate but equal was an inherent folly. Uh, and because everybody knew schools were not separate but equal. And, and I, I would [00:37:00] argue that the lineage is that. Everyone should know that there are other admissions factors other than affirmative action that give preferential treatment, but almost all of the other ones give preferential treatment to white and wealthy students.

Affirmative action is the only admissions factor that primarily benefits, uh, black, brown, and indigenous students. And, and unfortunately, um, he framed, uh, All those other admissions factors is race neutral, which to me is just as much of a folly as the idea century ago that these schools, which were obviously unequal, uh, were somehow equal.

KAI WRIGHT - HOST, NOTES FROM AMERICA: And I guess for help people with just a step more of that. Because I think it's, people hear things like, well, you know, this is just, that's just like separate but equal. Mm-hmm. And think, well that's, you know, that's ancient history. That's, you know, that is forever ago and that is, uh, a dead and gone idea.

And how could you possibly listen to John Roberts saying, Hey, just like, let's treat everybody the same and think, well, that's just like Jim Crow. [00:38:00] Yeah. So just do the math a little more for people.

IBRAM X KENDI: Sure. So John Roberts said, and again and again that. Affirmative action was the only race-based admissions factor.

So standardized tests, uh, which, uh, studies consistently show that they don't actually predict who's going to do well in college or even graduate school, but they do predict the test, the, the, the, the, the wealth or the income of the parents of the test takers. And we have a massive racial wealth gap. In this country, which then allows white and wealthy students to be able to use high price test, prep, uh, courses, which then boosts their scores.

So to imagine that a standardized test is not. Somehow race neutral, uh, denies the racial wealth gap. Denies what studies show in terms of what standardized test scores predict similarly for legacies. Uh, and, and I think a recent, a lot of people have been talking about a study that [00:39:00] was conducted at Harvard, uh, which, which found that a large percentage of their white students either were admitted.

As the result of being, uh, the children of alumni, the relatives of donors, uh, athletes, uh, or even the children of employees, and, and indeed the study found that about three fourths of white students, if they didn't have those, Four admissions boosts would not have gotten admitted. And all four of those, uh, elements give preferential treatment to white students.

White students, uh, have a, have the ability to get boosted because their parents are more likely to be on the faculty and staff. Their parents are more likely to donate their parents. We're not shut out of these schools for hundreds of years. Like black and indigenous students and white students are more likely to be playing high price sports that gets them in the colleges.

So to imagine those factors are race neutral again, uh, flies in the face of reality.

KAI WRIGHT - HOST, NOTES FROM AMERICA: So it's, it's seeing, it's in looking at something plainly [00:40:00] with plainly and equitable outcomes, calling it neutral. But then once the word is racist said saying, that's racist. And that's the same ideas as, uh, that supported Jim Crow in the first place.


IBRAM X KENDI: exactly. Because in this, remember a century ago, Mississippi and Alabama were saying that their schools were separate, but equal. Just as people are saying that these other admissions factors are neutral. Right.

Affirmative Reactions Part 2 - Straight White American Jesus - Air Date 7-1-23

BRADLEY ONISHI - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: So some of you might be thinking, alright, what does this have to do with like, book bans and Don't Say Gay? Well, we're gonna make that connection right now. So, if it is colorblindness by legal fiat and you are somebody, okay, who discusses whether in a legal setting, a business setting, or in a personal cultural setting, we now have a precedent from our Supreme Court that says we're not gonna consider identities that have been marginalized, racial identities, and other things when it comes to college admissions. Okay. So what we're saying is, is that you as an individual might have had experiences that have been challenging because you are Black, because you are [00:41:00] Mexican-American, Colombian-American, because of your Vietnamese-American heritage, whatever may be. But as a whole, we're not gonna consider the fact that Black Americans, right?, have a collectively different experience than White Americans or others. We're not gonna consider that the particular histories of being a Vietnamese-American when it comes to everything from the wars to refugee status to all kinds of histories and other immigration stories, you know, those things collectively are not gonna be part of this discussion.

So Dan, I'll give you an example of something that really hit me when you were talking. You were talking about the ways that the military is excepted from this. And I was thinking... and there's a lot of discussion about what this means for Asian-Americans, and there's a lot of complexities when it comes to Asian-American issues surrounding affirmative action. But here's something that hit me as you were talking, Dan, is like my grandfather fought in World War II for the United States against Japan, the country of his parents' heritage and citizenship and so on, him being a person of [00:42:00] Japanese descent. He did that while other parts of my family were incarcerated in camps set up by the American government. So they, he was given the exception, a lot of Japanese Americans were given the exception of leaving camp, an incarceration camp where the US government had imprisoned them, if they would go fight for the US military. Now, there is a long and sorted history and discussion about those set of events, but Dan, that's part of this.

All right, so here's the overall point. We seem to now have regressed to a point in the country's history where if you talk about a collective identity as one that has meant facing oppression or marginalization, everyone from a legal point of view and, we're gonna get to this, perhaps a business point of view and an educational point of view is gonna be like, No, well just you tell me about you. Okay. Are you a Black person? What, gimme the instances, uh, spell it out in an essay in your college application. What, you're somebody who, uh, is a Mexican-American and your parents immigrated to this country? Well, just, you gotta explain it. How did that mean some sort of challenges? Let us hear it. The point [00:43:00] is it's a colorblind approach that does not wanna recognize the corporate identity. And what is the corporate identity based on? Well, what we're talking about is history. So Dan, the last person born to an enslaved American, an enslaved Black American, died last year. Jim Crow ended in our parents' lifetime. We are talking about, I mean, I could go through, I just talked about Japanese incarceration. I mean, Dan, it was not until 1967 that the Supreme Court basically protected, uh, people in mixed race marriages from like being criminalized across the country. I mean, we could name, and I'm not gonna do it. We could name all the ways that racial prejudice and exclusion have existed right up into the present. We could talk about George Floyd, we could talk about every last example, but the corporate identities were mentioning come from actual history.

And I think that leads us, Dan, into why you wanna ban books. Why you want it so that your curricula does not include an AP history class on African-American history or African-American studies. Why [00:44:00] your curricula does not go into all of the atrocities of American history, including attempted genocide of Native Americans or Chinese exclusion, or so on and so on and so on. You start to connect the dots because if you go through those histories, and you have a citizenry, an informed citizenry, that knows those histories, then all of a sudden they might think, Hey, it might be good as a society if we did something to rectify the ongoing marginalization and historical oppression of certain groups. Okay? We could talk about generational wealth here, Dan. I mean, we could compare generational wealth, and I want to come back to this in this segment and talk about the ways that the generational wealth and libertarian ideals are really not about the government not intervening, it's just about the government not intervening anymore. But I'll throw it to you. What does this have to do with Don't Say Gay? What is the college admissions ruling from the Supreme Court have anything to do with attacks on trans kids or Don't Say Gay bills in Florida or anywhere else?

DAN MILLER - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: I think what they show is what is emerging as a common strategy on the right. And, um, there's a political article by, uh, and I may mispronounce [00:45:00] his name, so I apologize if I do, but, uh, Aziz Huq, basically looking forward and saying, Here's where this could go. Right? And what he's looking at is a class of laws. Sometimes they're laws, sometimes they're like federal policies or policies an agency might have, but they're called disparate impact rules. It's basically the idea, this will be basic to a lot of people that understand this disparate impact ideas, this is how he describes it and he summarizes it really well. He says, often this is from the political article "people who act for bad reasons don't wear their racist motives on their sleeves or are simply negligent about the way that their actions entrenched past race-based disadvantage". I wanna hold onto that latter part. That's where a lot of well-meaning people live, I think. They participate in systems or practices or economic policies or whatever that have impacts on certain classes of people that they may never have been aware of, that they didn't wake up in the morning trying to disadvantage somebody. That's just what happens, as well as really bad actors who know that they're racist and it's a way of [00:46:00] hiding their racism and so forth. So he goes on to say, "so disparate impact laws allow a plaintiff to prove they encounter discrimination by pointing to large and unexplained racial disparities". In other words, looking at kinds of patterns that exceed the individual, that exceed individual intention, that somebody may not even know about, and say, where these policies are in place, for example, we could talk about like redlining laws or things that were in place with like mortgages and stuff and look and say, you know, what entire swaths of a city have made it impossible for people of color to say, get a mortgage and to move there. Did individual home buyers like try to make that happen? Sometimes. Sure. Sometimes they moved there because there were no people of color, but often they didn't, they're just applying for a mortgage, trying to buy a house, live out their slice of the American dream. Fine. But you get these so-called disparate impacts.

So, what happens here? Well, what Huq goes on to say is, he says this, he says "It's impossible to talk about 'racially disparate impact' without talking of race." What you [00:47:00] now say is, we can't talk about race. Sound familiar? Sound like Don't Say Gay? We're not saying, Brad or anybody else, we're not saying you can't be queer, not saying you can't be trans. We're just saying that we can't have any books about that. Teachers can't talk about that. It can't be part of a curriculum. We are not saying there hasn't been a racial history in America. We're just gonna say, we can't talk about that. We're not gonna let people talk about collective identities and so forth. It's the same thing. It's instead of, Don't Say Gay, it's don't say race. And you could look at this two ways. One is, cuz this is not, especially this vision of colorblindness, has been a conservative strategy for some time now. One could look at it and say, this is what the Don't Say Gay people figured out. We'll use, pick up the same kind of strategy and employ it there. And I think also the success of that strategy is influencing the Supreme Court now, as the conservatives do this. It's a conservative idea that has boomeranged around and come full circle. So for me, that's the connection here.

Legal Scholar Says Supreme Court Could Become a “Pointless Institution” - Amanpour and Company - Air Date 5-17-23

JARI SREENIVASAN - JOURNALIST, AMANPOUR AND COMPANY: So what is the check that exists on the Supreme Court? Perhaps a check [00:48:00] that we're not exercising today that we used to find normal, because these are lifetime appointed justices and at some point there is a decreased confidence in how they're doing their jobs?

STEPHEN VLADECK: Yeah, I mean this is, I think, a big part of where we are. And in that respect, I think the rise of the shadow docket is actually just a symptom of a broader disease. This is where I think we also have to bring in all of these stories about the Justices' ethics and financial disclosure.

Historically, the principle check on the court was Congress. Indeed until 1935, the Supreme Court sat in the Capitol. And I think part of what has gotten us to where we are is that progressively, and especially in the last 35 years, Congress has basically taken its hands off and has gotten out of the business of being part of this ongoing inter branch dialogue about keeping the court in its lane. So when John Roberts writes back to Illinois Senator Dick Durbin, and says, I'm not gonna come testify before the Senate Judiciary Committee because of separation of powers concerns, I think that's a reflection of [00:49:00] a very modern and not remotely historical view of the separation of powers. Historically, the court was part of this conversation, as opposed to today where it seems so completely above and oblivious to it.

JARI SREENIVASAN - JOURNALIST, AMANPOUR AND COMPANY: What's happened to our public confidence in the Supreme Court over these last few years?

STEPHEN VLADECK: I mean, if you look at least the survey data that's out there, it's going down. Um, and I think this is a bigger problem than the Justices really, I think, want to admit publicly. It's not that the Supreme Court should be guided by public opinion polls. And it's not that the Supreme Court should just do what a popular majority wants it to do, but the Supreme Court does not have an army. Right? The reason why we as a polity follow the Supreme Court is because there's at least some substantial belief in the court's legitimacy as an institution. The more that that belief erodes, the more that we lose faith in the idea that the Justices are exercising judicial power as opposed to political power, I think the more dangerous a slope this means we're on. Because if we get to a point where there are large swaths of the [00:50:00] population that refuse to accept the legitimacy of decisions from the Supreme Court, then the Supreme Court at that point becomes almost a pointless institution, one that can't stand up when we need it to, to the majority. That would be a huge problem for our constitutional system, and it's one that frankly the Justices should be at the front of the line in trying to avoid. But from the perspective of the court as an overall institution, we see a bit more of a historical ebb and flow that suggests that our current moment, however frustrating and exasperating it may be, is not one from which we can't recover.

What we need though, is we need to have consensus that the court as an institution ought to be more accountable, that Congress ought to be more involved in relationship with the court about its docket, that the Justices should be more committed to providing principled rationale for their decisions, even if we're not all going to agree with them, and finally that the Justices should I think be less in the business of criticizing critics who are worried about the Court, who are trying to save the Court from itself. [00:51:00] That's why I think this is such an important moment for the Court, but also one that has a lot of time, a lot of games still to be played.

Bonus: Elie Mystal's Court Packing Plan - Contempt of Court - Air Date 7-10-23

ELIE MYSTAL: Let's start with the basics. Expanding the number of justices on the Supreme Court can be done with a simple act of Congress passed by the Senate and signed by the President. Court expansion does not become easier or harder based on the number of justices you seek to add to the court. From a civics perspective, the process to add two justices to the court is just the same as the process to add 20.

Arguably, the rationale is the same too. The current plan supported by some Democrats is to add four justices to the Supreme Court. Their arguments are that the court has gotten woefully out of step with the American people and the elected branches of government, which is true. They argue that the country is a lot bigger now than it was in 1869 when Congress set the number of Supreme Court justices at nine, which is also true.

Basically all of these arguments flow together into the [00:52:00] catchphrase, "We have 13 Circuit Courts of Appeal, and so we should have 13 Justices."

See, back in the day, each Supreme Court justice was responsible for one lower Circuit Court of Appeal. Procedurally, appeals from the lower Circuits are heard first by the Justice responsible for that Circuit. Now we have 13 lower Circuit Courts of Appeal, meaning some justices have to oversee more than one. If we expanded the Court to 13 Justices, we'd get back to a one-to-one ratio for Supreme Court Justice per Circuit Court of Appeal. It doesn't actually matter how many circuits each Justice presides over, because all the justices do is move an appeal from the lower court to the Supreme Court for the full court to consider whether to hear the appeal. Their function is purely clerical. It doesn't matter. One Justice could oversee all [00:53:00] 13 Circuits while the other eight went fishing. Kind of like hazing a rookie on a team. And it doesn't make a damn's bit of difference in terms of the number of cases the Supreme Court hears. It's just a question of who has to work on Saturdays.

Indeed, I'm not even sure that I want the court to hear more cases. These people are unelected and, as we'll discuss in future episodes, these people already have too much power. More cases just gives them more opportunities to screw things up. I don't need the court to make more decisions. I need the court to make fewer shitty decisions. And for that, I need to reform how the court makes those decisions. And for that, I need more people, and I need those people to make their decisions in panels.

Those lower courts, those 13 Circuit Courts of Appeal, almost all of them operate with more than nine judges. The ninth Circuit Court of Appeals has -- wait for it -- 29 judges. [00:54:00] All the lower courts use what's called a panel system. When they catch a case, three judges are chosen at random from all the judges on the circuit to hear the case. Those three judges then issue a ruling. If the majority of the circuit disagrees, they can vote to rehear the case as a full circuit. The legal jargon here is called en banc when the full Circuit hears the case. But most of the time, that three judge panel ruling is the final ruling on the issue, with the Circuit going en banc only when they believe the three judge panel got it clearly wrong.

Think about how different it would be if our Supreme Court operated on a panel system. Instead of showing up to court knowing that six conservative justices were against you, or one or two conservative justices that you invited onto your superyacht are guaranteed to hear your case, you [00:55:00] literally wouldn't know which justices you'd get on your panel. Even on a six-three conservative court, you might draw a panel that was two to one liberals, or you might draw Roberts, Kavanaugh and Barrett instead of Thomas, Alito and Gorsuch, which could make a huge difference. Either way, you wouldn't know which justices you'd get. Not only does that make a big difference in terms of the appearance of fairness, especially in this time when some justices are openly corrupt.

It makes a big difference in terms of what kinds of cases and arguments people would bring to the Court. Without knowing which justices they'd get, litigants and Red State Attorney Generals would have to tailor their arguments to a more center-mass mainstream temperament, instead of merely shooting their shot and hoping the arch conservatives can bully a moderate or two to vote [00:56:00] with them.

Now you can do panels with nine or 13 Justices, but you pretty much have to do panels with 29 Justices. Overloading the Court with Justices would essentially force them to adopt the random assignment process used by every other court. That would be good.

Sure, litigants could always hope for en banc review where the full partisan makeup of the court could be brought to bear. But getting a majority of 29 justices to overrule a panel decision requires 15 votes. Consider that right now you only need four votes, a minority of the nine member court, to get the full court to hear a case. I'm no mathlete, but I'm pretty sure that 15 is just a higher bar.

Bonus: Weekly Roundup Affirmative Reactions Part 3 - Straight White American Jesus - Air Date 7-1-23

DAN MILLER - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: One is, I, I've already read of liberal groups that are targeting the legacy issue on the grounds of this Supreme Court decision, uh, on, on [00:57:00] exactly the grounds that have just been given, that it's a form of white affirmative action, primarily white affirmative action.

Um, and you've got some colleges that have been started to do away with these, but as you say, like lots and lots of them depend on them. The athletes one is really interesting cause I was thinking about that. I'm like, imagine if the athletes had to apply Brad, and you gotta say, you know what, we, we can't take the, the fact that you're part of, uh, that you're a football player into account.

You can write about sports and how important they are for your life. You can write about the impact they've had on you as an individual, but we're not gonna take into account the fact that you're like a high school, all-American athletes, uh, no letters of intent. No waiving of the standard requirements, academic requirements.

And again, my younger brother, college athlete walk on pre-med medical student. I understand that there are lots of college athletes who are very, very capable scholars. Uh, we all also know there are lots of college athletes who aren't, and this is great for them. It gives them opportunities they, they often would not otherwise have.

But it shows the flawed logic of this. If you were to say, okay, let's play this for everybody. Let's [00:58:00] talk about the, uh, the level playing field that the conservatives, I guess think is there. Folks, we, we've heard George W. Bush speak. We, we've, we've heard some of these, these senators and others who can't, they can't think critically.

They can't put three sentences together. They are not, they're, they're not smarter than you. They're not better, but they are better educated. Why? Because they got into these institutions as legacy students. Yeah, let's talk about the level playing field. What would really happen if all of these people had to just write as the individuals?

They are no legacy, no money, not part of a sports team. We can see how flawed the idea is when basically we now say, well, if you're part of a racial minority, you can't bring that in. I mean, you can bring it in, but we can't look at that as a decision. It's coming for other things, but we can see how widespread that still is.

So yeah, imagine the top tier college athletes that we love watching on Saturdays or, or, uh, throughout the week or in March Madness and saying, yeah, we, we weren't allowed to take [00:59:00] into account the fact that you were gonna help our basketball team, our football team, our lacrosse team, whatever it is.

BRADLEY ONISHI - CO-HOST, STRAIGHT WHITE AMERICAN JESUS: Dan, one way to sum up what you just said is, and, and this whole discussion of legacy is, That the only thing that can be considered something in your favor if you are applying to elite schools is money.

So that leads me, we've connected the dots to don't say gay and to banning books. Let's connect this to what a lot of folks on the right love talking about, which is government regulation and being a libertarian. Hey, less government's better. Okay. And you're like, what does less government and libertarianism have to do with college admissions?

Well, here's where I'm going with this. A lot of people would say, Right. It's all about the individual. Yeah. We'll consider individual experience, but not systemic issues. And that's a libertarian, uh, idea. Hey, it's all about the individual. You are, are capable. You should save money and work hard, and you should accomplish what you can.

And that's it. There's no, there's no collectivity. Libertarianism in essence is anti collectivist. So when you hear people who, who demonize socialists [01:00:00] and communists and collectivists, that's what they're doing. They're saying the American way is about an individual who works hard and. It's a myth, it's an ideal.

And, and you're, and it, and I'm gonna say something now that that is important. It privileges white people. And now you're like, okay, Onishi, let's, how does that happen? Here's how for centuries in this country leading up to, okay. Very recent history. The United States government has privileged white people.

Okay? So if you have. If you have, we got a dog barking in the background. Okay. And the dog is just as upset as me, so just be aware, all right. This dog is not happy. All right. They're egging me on. So if you have a situation where in the 16 or 17 hundreds leading all the way up to the Civil War, you cannot, I don't know, own property, but you are considered to be property in this country.

You're kind of economically disadvantaged. I don't know. Kind of a pretty easy case. Am I all right, cool. Okay. Well, how about after slavery ends? We have a situation where, what, it's [01:01:00] really hard to vote if you are. What A black person, because you might encounter a, a poll tax, you might encounter a, a, a poll test where you have to recite the entire constitution for them to let you vote and so on.

It might be hard to vote cuz you're a woman and that didn't happen until 1920. Okay? It might be hard to vote, uh, and to own property because there were alien land laws in the 1880s. Uh, forming and they, they really get going in the, in the early 19 hundreds. So if you're a Chinese person or a Japanese person, you may not be allowed to be in the country or if you are to own land or to lease land.

Okay? Dan mentioned earlier redlining. So, hey, you can't buy a house in this nice neighborhood where your property will appreciate value, right? And I can give you all the examples of that. If you don't know about redlining, please just google it and look it up. I could go on and we're gonna run out of time for the next two hours, about the ways that the American government made it such that if you were a white person, there was a direct linear pathway for you to make money, accrue generational wealth, own assets, [01:02:00] own property, and so on, and so on and so on.

And if you were not, you were held back. It was like everyone was on a race. And you had to wait a count of 10 or 20 if you were even allowed to go at all down the path. Okay. And now the libertarian shows up in your philosophy class or at the barbecue or at the bar on Friday night and says, well, I just think everybody should do their best and try their hardest.

And whoever gets the most gets the most. And if you don't, you're just not up to the challenge. Sorry. I don't know what to say. So when a college is like, yeah, legacy, we'll let you in. Yeah. Your granddaddy went here and your great granddaddy went here. Well, that's something. Must be a good family. We got, you know what I hear?

I hear them saying, yeah, in a time when to be black or a person of color or a woman was really just not a time when you had equal access to things in American society like property or, or jobs or admission to college. That college is able to say, yeah, long, long history here of your family, successful at Princeton or Harvard or somewhere else.

We should get. Yeah. We'll let you in here, son. Get in here. All right. Get that, get that blue blazer and the gold [01:03:00] button. You, you're, we're proud of you. Come on in. Doing your family proud there, George W. Bush. Great job. Okay. Legacy is libertarianism. And libertarianism is not saying, I don't want the government to be involved.

You know what libertarianism is? I don't want the government to be involved anymore because if they do, they might put their hand on the scale. That tips it not my way, rather than the centuries of tipping it for my way and me not even acknowledging that that happened.

Final comments on the need for a new solution to the old problem that affirmative action was trying to solve

JAY TOMLINSON - HOST, BEST OF THE LEFT: We've just heard clips today starting with straight, white American, Jesus explaining the origins of affirmative action. Moore Perfect. Did a profile of Edward Blum, who spearheaded the lawsuit against affirmative action. Notes from America. Discussed the counter productiveness of colorblindness. Amicus looked at some of the details of the dynamics of the court in this case compared to others.

Straight, white American. Jesus punctured some of the myths about the model minority status of Asians and how that played into this case. Notes from America made the connection to the concept of separate but equal in the colorblind preferential treatment that's still allowed straight white American.

Jesus made the connection to the [01:04:00] don't say gay law to show the theme of trying to conceal the truth, to maintain the unjust status quo and Aman porn company discussed the power of Congress to oversee the Supreme Court that it so clearly needs to begin reasserting. That's what everybody heard, but members also heard bonus clips from the nation featuring Ellie Mistol with further thoughts on how to structurally rebalance the court and straight white American.

Jesus took aim at the libertarian ideal in one of the best ways I've ever heard. To hear that and have all of our bonus content delivered seamlessly to the new members-only podcast feed that you'll receive. Sign up to support the show at Best of the Left dot-com slash support. Now to wrap up, I just want to highlight a point that was made in the show that I think deserves a little bit more attention.

It was said that those who oppose affirmative action. Almost, or maybe literally never come to the table with an alternate solution to the problem of the legacy of centuries of systemic oppression. And I bring it up now, not just to highlight that fact, but to say that. [01:05:00] I'm open to ideas. I don't expect that any system would be perfect and that the system as it stood could be inelegant in some ways.

Frankly, I think its biggest drawback was the negative impression people had of it and the resentment it could foster. Now, I don't really think that the resentment was well founded, but it was real nonetheless. So if there's a better solution, I'd be happy to hear about it. And I mean that I, I know it.

Could come off as flippant or derisive, but I'm serious. We should all be open to new ideas of potentially better ways to address the problems we're trying to solve. Affirmative action has been in place for a long time, and I wouldn't have voted to get rid of it, but. It's not like it's entirely solved the issue, and now that it's gone, there will be renewed effort to find new ways of addressing the problem and maybe something positive can come of that.

We already heard that liberal groups are targeting legacy admissions in an effort to level the playing field in that way, so, For all those who didn't like affirmative action or were uneasy with the idea of [01:06:00] it and people being treated differently based on their race or identity, now is the time for alternate solutions because doing nothing.

Is not an option. And banning giving help to those who are the legacy of oppression, but allowing extra help to continue to be given to those who are the legacy of privilege will have a painfully predictable outcome. If you want the best and the brightest to really be able to rise to the top based on their merits, and you're not going to allow special consideration to be given to those who come from marginalized communities.

Well, then there's no way around the fact that we have to make a few equal and opposite changes to level the field in the other direction. That is gonna be it for today. As always, keep the comments coming in. I would love to hear your thoughts or questions about this or anything else. You can leave us a voicemail or send a text to 2 0 2 9 9 9 3 9 9 1 or simply email me to Jay at.

Best of bluff dot-com. Thanks to everyone for listening. Thanks to Deon Clark and Erin Clayton for their research work for the show, and participation in our bonus [01:07:00] episodes. Thanks to our Transcriptionist, Trio, Ken, Brian and Le Wendy for their volunteer work, helping put our transcripts together. Thanks to Amanda Hoffman for all of her work on our social media outlets, activism segments, graphic designing, web mastering, and bonus show co-hosting.

And thanks to those who already support the show by becoming a member or. Purchasing gift memberships at best of left dot-com slash support. You can join them now during our membership drive. It would be greatly appreciated. And to continue the discussion, you can join our Discord community. There's a link to join in the show notes.

So coming to you from far outside the conventional wisdom of Washington, DC. My name is Jay, and this has been the Best of the Left podcast coming to you twice weekly. Thanks entirely to the members and donors to the show from bestoftheleft.com.

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  • Jay Tomlinson
    published this page in Transcripts 2023-07-11 23:27:00 -0400
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