This point . President trump or president bidens ability statewide to really change the dynamic is probably you can watch this program in entirety on cspan. Org. Coming up a discussion about the Current Supreme Court race challenging race conscious admissions policies at harvard and university of North Carolina. The discussion is hosted by the federalist society. Your watching live coverage on cspan. You are watching live coverage on cspan. To talk about i think some of the most important cases being heard this decade. So i wanted to highlight a few things. I want to be quick because im more interested. The first is originalism. Justice jackson did not raise it, but justices from all around the bench raise the question of what is the first intention of the First Amendment and what did people of the time understand it to be . There are a number of reasons that argue that there are significant legislation that was that we might describe today as affirmative action. Right . Ive said this and other panels, but if you think about what is 40 acres and a mule, 40 acres and a mule sound a lot like affirmative action to me. In light of the nations history of not just slavery, but systemic oppression of black people. A number of those programs were open to all black people, not just formerly enslaved people, so they are not remediated remedial into the narrow way that the court has understood it to be in other contexts. One of the things that that was interesting, i like listening to justice barretts questions. She has smart and different questions than the other justices. But she said from the bench that that is the case, that history shows that at the time of the 14th amendment, the 14th amend it was not understood to be colorblind. I thought that was really interesting. She asked a smart question about sort of what does that mean, right . Does that mean youre not supposed to have strict scrutiny or how should we understand the history of the matter. And Justice Jacksons point on this, she was the original one who had raised this question of originalism in the 14th amendment in the merrill case about voting rights. She said, you know, you know, the history is certainly not just colorblind. As that is the case, right, is there enough history to over, starry decisive . That is an interesting way to think about it. The most important thing i will say of the thing is i am interested in seeing how whenever a majority you see talks about history. History and tradition were so critical in dobbs. And i think insofar as the court is a number of the justices think of themselves as originalists, i think there are some hard questions here. I will say, you might read the history. It was very clear around the 14th amendment that the goal of the 14th amendment was to make sure that there was racial equality. That meant that there is Something Different between jim crow laws on the one hand and things like what the friedman girl was doing which was trying to ensure friedman bureau. Which was to ensure equality. The originalism point will be interesting to see and i am not sure how different numbers of the court are going to come out on that question or if they are going to decide altogether, which they might do. One other argument that i found really interesting was Justice Jackson had a typo in which she said ok a hypo in which she said what if a student is from five generations in North Carolina, a white student. They say my family has been him before slavery. Five generations of gone to u nc and i honor my family to be able to go to unc. Another student says my family has been in North Carolina since before the civil war, my family was enslaved. They have not had the opportunities to go. People in my family have not had the opportunities to go to unc and i want to honor my family and history in North Carolina to do that. She basically flipped it on its head and said under the petitioners argument, the first guy, the white guy, can have his history give him a bump. Whereas the second i cannot predict it would be understood to be a plus factor on the basis of race including the basis of family and slavery. It is considered such a proxy for race that it could not be a factor at any time in university consideration. I thought that was really interesting. An interesting argument and one that again we will see how the court deals with it. The final thing i will say is what was really interesting to me was the kind of depending on how these cases come out, things like title vii and the race neutral plans are definitely under threat. Because if the court were to say, you know, educational diversity is not a compelling interest, they might say if you adopt a race neutral plan, but with the goal of encouraging racial diversity, that alone violates the constitution. And i took the oral argument not to be going in that direction whatsoever. I found it fascinating because it sounded to me like there are enough justices on the court to protect race neutral plans, even if the race neutral plans are adopted in part for the reason of encouraging racial diversity, which i think would mean things like top 10 plans, title vii, that that would really affect the case coming up now. Thomas Jefferson High School raising the same question. I think, if i am right, i think that the different outcome it may mean that we get a narrower opinion than i had expected in some of the other commentators. And some of the other commentators expected. One other thing, i think it is interesting that as they put forward a strong argument about National Security interest in the military and the justices were interested in that and whether or not, you know, military schools and military issues should be treated differently. To which they responded essentially our own programs are important, they are not just for us, but for business. In terms of racial diversity in a academy settings, but also in military academy settings good but also for the 25 years, places live in different paces. You have a different history of race in the context of North Carolina. I can tell you that is true. And so, it may be the case that some schools, it would be unconstitutional for them to use any form of race conscious admissions, where as we should not think that is the case in other contexts. Which is to say the 25 years rule was aspirational. And the problem is not that race conscious admissions have not worked. But that our society has not become as racist as the court had hoped. I will be quiet. I am interested in your question. Thank you, amanda. Let me ask a few questions. I want to start out with your last point. Which, you said society is still racist. But isnt that something that would go to a remedial justification for preferences . And again, the lawyers for the schools disavowed any remedial argument here. So i think it goes to the question of whether or not the 25 years is like a rule of law or whether or not instead we should understand it to remark on the possibility of us getting rid of racial considerations in college admissions. I thought it was interesting that the solicitor general pointed to the state in which they do not use preferences. And the fact that those states have maintained diversity for the most part and gave them an example of the end is in sight. But those are states not where all racism has been eliminated, but those are states where bylaw they cannot use preferences. So doesnt that sort of make the argument for the other side that that is the only way were ever going to get rid of the use of explicit race is to just say it is illegal. And forced schools to use i dont think so. I dont think that follows. It strikes me that particularly if the court were to take the invitation from the solicitor general and the council for harvard and read that case and say narrow tailoring is narrow tailoring. That would encourage schools to go faster in the way already that they have for a number of schools. So i do not necessarily think though i think the real question again like i said before is is the court going to uphold or strike down race neutral alternatives that are undertaken with at least some hope of encouragement of racial diversity . Of encouragement of racial diversity. Curt i agree with your read, that this court is that is not really not ready to say race neutral alternatives are not off the table. Can you live with that . In a world where race was not used explicitly but largely the same effect was accomplished in a raceneutral way, would you be happy with that . Amanda would i be happy with that . Yes. But is that possible in this world and society in which we live right now . A sufficient number of schools, its not, thats a factual question. Whether or not you could if you could have harvard and it still be harvard and as competitive, intellectual, etc. And still not have any consideration of race and still be diverse, i think thats a factual question. Were Justice Oconnor correct, that there would be no need of this 25 years later, that would be amazing. I just dont think we live in that world and i dont think affirmative action programs contribute to racial strife or the like, but instead the opposite as a bunch of families demonstrate. Curt devon, are you happy with raceneutral alternatives . Im guessing you would say not if they are merely a cover for racial balancing, but what if thats part of the goal and the other part of the goal is to genuinely take into account all kinds of disadvantage . Devon i certainly would support that. In fact, i think its perfectly permissible and i do think and hope it will move closer to what has been discussed and debated quite a lot and whether there are race neutral alternatives like socioeconomic status. I still have concerns, very strong concerns about mismatch, putting students in an environment they are not prepared for based on a factor outside of how they have tested. If courses they have taken up high school level, how they have done academically. But a small bump here or there because a student is from a lower bracket to help diversify the campus, a campus such as harvard, which was stated in oral argument, not very diverse at all when it comes to those sort of factors, Something Like 70 or 80 of Harvard Students come from wealthy families. Very few come from poorer families. Im not concerned about that. Im concerned that it leads to a mismatch. Curt let me ask this to both of you. I would say there were two justices, both jackson and sotomayor, one got the sense or certainly not ready to give up on me exclusive use of race. What where do you think kagan stands and where can we what can we draw from the fact that she did seem interested in raceneutral alternatives . Either of you. Devon i can be very quick about this because i have stated my thoughts in my intro. I think sotomayor and kagan on this, i thought both Justice Sotomayor and kagan were sympathetic to an idea that race should be taken into account and many other aspects of American Life. It clearly implies i think Justice Kagan would be perfectly happy to see it stand and admissions continue. Curt let me raise the question for amanda. Who knows what kagan wants in her heart, but the fact that she did talk about race neutral alternatives, does that indicate to you she may realize the votes are just not there to save the explicit use of race . Amanda yes. She is very savvy. Shes a supersmart human. I agree with devon that she things brenner is correct and shes concerned about star a decisives and the legitimacy of the court. About star decisives how far, how fast, overruling affirmative action after doing away with abortion, these are big social moves in a very divisive world. I think she may have come into it closer to what i was worried about which is the court would issue a broad holding that says no affirmative action whatsoever and if you even think about race, thats unconstitutional. That would be the biggest cut, to say theres no constitutional interest in diversity what. I think what we saw today has to do with her talking through with people and maybe trying to move people to a more moderate position. That would be my guess. Devon thanks for rephrasing the question. But i got the sense Justice Kagan wanted much more was much more inclined to be the persuader on the left side of the court as opposed to Justice Sotomayor, who i got the sense was talking more to the american public. She was very strong in her as issuance. At least discussing them to the length Justice Kagan was and it struck me as though she is not talking to her colleagues in the same way. Amanda to talk about Justice Sotomayor, one of the more striking parts of the argument came in a colloquy with her in which she was asking the petitioners counselor argued that, for example, if there was a plus factor or any additional consideration given to a person who wrote an essay about how they come from a family of formerly enslaved people that that would not be permissible because it would be a close proxy for race and unconstitutional. I thought that would be staggering. Whats the purpose of the 14th amendment . Putting that aside, i thought it was interesting how sotomayor drew out the contemporary racial problem in North Carolina that are real. Weve been here for the last five years. Think about the march on charlottesville and all that sort of stuff. Its hard to not admit there are significant issues, particular in the part of the world i come from and i thought she did a good job of drawing out those contemporary harms and connecting them with the history , North Carolinas institutional history of opening unc to educate the children of slave owners. Curt let me ask amanda doesnt that get into the remedial interest and perhaps not even just the remedial interests the school might have, but isnt it more a societal discrimination type of argument . Amanda i dont think so. I think thats a legitimate question myself but the issue goes to this background, what is society . When can we end consideration of race in University Admission because those people will become leaders in our democracy in which we need people and we need to see people who are representative of us in charge. A terrific brief signed by every major company, not just the ones you would expect, to say this is really important to business. Its not a question of remedial. Its a question of the world is not where the petitioner act like it is. If the world was a place in which our country had with systemic racism, then race neutral alternatives would be fantastic. But, like i said, if you look at how anyone looks around at the state of the country and discussions on race, the storming of the capital with tons of confederate flags, right . It is not a place that i think resembles in any way the world the petitioner seems to think it does. Curt some of the conservative justices had questions i dont disagree with you that the world isnt perhaps what oconnor hoped it would be, but they were concerned, what if we dont reach that point of an ideal society . Does that mean these preferences will go on forever . I was a little surprised because the counsel for the other side seemed to agree if it went on forever, we would have major constitutional problems. Let me ask you about that but let me ask devon, do you have any faith we can continue this for another 25 years without it going on for infinity . Devon i have no confidence at all. I think it was pretty clear when pressed time and time again what is the end day eight, i think almost every justice asked that question and theres never a hard and fast answer. I cant remember some of the language that was used, but it essentially implied this is something that must go on forever. The sg suggested you might have to evaluate i wish i could member her terminology Something Like sufficient diversity on campuses but did not further explain what that sufficient diversity look like and suggested this could not be reduced to some miracle percentage to determine whether weekends top the outright use of race in admissions. So i have no confidence this would not endure indefinitely. Curt amanda, do you have more confidence . Amanda i was impressed with the sgs answer to that question which was to say what has been happening is we are moving more and more in that direction and the consideration of race by these schools has been reduced because there have been strives to make the world a more equitable place, but the sg pointed to a bunch of things that different communities move at different rates. Different parts of the country have different histories with regard to race. Already there are places in the country that it would be unconstitutional for schools to explicitly consider race even as part of a holistic review but in other places, it would not be. She suggested a number of different factors of how to think about and some of these are drawn from the building rights context, but disparities in Graduation Rates and attrition. In terms of how much people of different groups feel comfortable speaking. She said demographics may be relevant, particularly in a context where you see extreme disparities between different groups and it mentioned the example of what about female advocates on the Supreme Court . There are very few female Supreme Court advocates and she says if you are looking at the world, it may suggest to you that is a type of leadership position not open to you. She also suggested Qualitative Analysis and i thought there was a fair bit of things she gave particular to Justice Kavanaugh who said here are the types of things you would measure to answer this question. That has already been met in some places in the country and the question is when can it be other places like North Carolina. That strikes me as an imperial question and im going to be an optimist and say i hope within my lifetime places like North Carolina have open opportunities and forms of social equality that would mean alternatives would be great. Curt your answer implied you dont think we are going to be able to achieve racial diversity without substantial changes anytime soon. I wont agree or disagree but let me ask, if that is the reality, could one argue society wants to live with the fiction we have now, which is we are achieving diversity but race is not a determinative factor . In other words, is the current state of affairs a compromise given diversity can be achieved now . Devon i think diversity can be achieved. It is achieved in many different institutions of higher education. Its interesting berkeley is used as an example of where diversity was drained from the campus after prop 209 was passed which outlawed racial classifications in higher education. The rest of that story is interesting. It in fact, enrollment went up among minorities. The gpas on average of those minorities rose as well. Minorities were more likely to graduate as well. The pinnacle of the system did go down but the verse he and many other places did go up and those diverse students did much better when they were paired with an institution that was better suited to their academic qualifications. I think we can do even better at berkeley and all the institutions around the country which otherwise would see a draining of minorities if we put more emphasis on the root causes of those things that cause disparities in many aspects of American Life at our schools in predominantly minority communities. A number of factors we dont have time to go into right now. I dont think keep it the way it is and reduce race preferences or have the opposite result that we are just not going to have the diversity we needed. I think we can do better in both if we focus our efforts in the right ways. The evidence some of the evidence presented or referenced in the oral arguments. Curt you mentioned the use of the diversity rationale against jewish applicants and some would argue there is a parallel to how americans are treated today. I would guess, amanda, you dont think its the same and tell us why we should not be concerned the Current System is just a fashionable version of what was done to jews hundred years ago. Amanda im concerned, actually that incidences with a lot of discretion, you have abuses of discretion, so im not surprised and in places where you see employment decisions, a lot of discussion can be problematic. What i heard seth waxman say is those arent the facts found by both the District Court and the First Circuit and he was like if those were the facts, that would be different. I guess if they are doing what they were doing with jewish americans, that with regard to Asian Americans, that would be an atrocity and they should be held liable. The point on the other site is thats not what is happening as the factfinders have found. I dont know but thats a concern for me, but one with regard to the harvard thing, this is not even raised in the North Carolina case. Its only raised in the statutory case. Devon the response i heard from mr. Waxman was inadequate. He said todays process is not the same as when jewish students were excluded from harvard. That is precisely what is happening or that is the allegation, where Asian Americans get the lowest score by far, that they are doing the exact same thing to Asian American applicants through a personal rating. When asked why, the answer is astoundingly muddled. I dont think there was a clear answer from waxman at that point. Amanda i thought the sg answered better, but thats not what the facts show and as the District Court court of appeals found, if you, Supreme Court, want to find different facts, both suggested you should bring it and that sounds right to me if the question is a factual question. It will be interesting to see if the court takes it to be an to be a factual question or not. Curt we dont have much time left, so i better turn to audience questions. Lets start with what was more a comment then a question, where the persons says not a question but love the artwork behind devon. Amanda me too. Curt i have a question says Justice Gorsuch suggested the solicitor generals argument undermines bosse stock. Do the panelists sure that view . I thought what gorsuch was saying was one of the council were trying to say title vi does not define discrimination clearly where title vii doesnt. Was there more to that point and i realized . I ask that to both of you. Devon i think i agree, although i would go one step further and say the solicitor general is exceedingly sharp and argument today. I think a disingenuous answer came out here which was essentially title vi, discrimination in title vi is ambiguous and i think thats the exact same word thats a way of saying we support race preferences, thats what we are going to do, but we also support so g efforts as well. We like what you did in boston talk, dont disturb that. Curt i should have said for anyone in the audience, bought stock was the case that found Sexual Orientation and gender identity were covered by title vii. Here is a tough question. Amanda can i just say i disagree. What was interesting about that comment was he was taking a textual list position in the harvard case, which is an interesting one and interesting about the relation between title vi and the constitution and he did not seem to be interested in breaking their meeting and thats a larger question, but i did not hear other people taking up the textual list bandwagon. That did not seem to be the center of the conversation. Devon unfortunately. We talk about the protection clause, we get closer to reading that, but there was no talk about that, a talk about the record which we really dont get to if the words of the law are ambiguous, which no one brought up. Curt i will desk the whole question because its very long. You make the point affirmative action has the potential to reinforce racial stereotypes by admitting black and brown students to programs to which they are not qualified. On what basis do you assume your point necessitates affirmative react affirmative action tips the balance and on what basis do you assume students submit students cannot be both diverse and qualified . Devon i dont think im assuming students admitted on the basis of affirmative action are not qualified. The evidence suggests raised preferences would be unnecessary if students of certain racial backgrounds are given preference or were academically qualified, there would be no need. The events over the course of 20 years have borne out the case that students are placed into a position where some of them do very well and understanding what their qualifications were at the time of admission were admitted with lower academic qualifications than others. What was the first question . Curt they were both sort of the same question. Why are you assuming affirmative action tips the balance of admissions such that race supersedes caucasian. Devon i will stash supersedes. Devon the lawyer for harvard would ask based on academic credentials, can race be a determinative factor, will it be a determinative factor and he said yes. He said it himself, i dont have to tell you. Curt amanda, this question is aimed at you. Some of the questions troubled me if race along with multiple other factors had been used to produce a result that clearly discriminate against blacks, theres no question the court would recognize let me broaden it little bit to say there was a lot of debate over whether race is ever a determinative factor or one of many factors. Would it ever be ok if you were using race against minorities in a nondeterminative way . Amanda thats the suggestion of the question. That its being used against white people and asian people. I thought that question was interesting, but for a different reason. In the context, it was a pushback against this idea that education is a zerosum game. What unc is trying to do is get a group of the most wellrounded qualified people and part of that has to do with considerations of your background, including race, but other things so that it cant be compared to a race. In such context, how do you know you would have gotten into harvard or unc in this context whereupon all these things. I think there is something compelling and that and i dont think the court is going to pick up on it. But i think that came out as a stronger oral argument that i had expected. Curt we are almost out of time, so let me ask these questions from the audience. Gorsuch asked a lot of questions about squash players. Should we take that to mean harvard should have achieved a Critical Mass or they would have weaken their squash team . I think they are probably really not asking about squash but they are asking a question that was debated in todays oral argument, which is what if harvard has to compromise a little bit and perhaps not have quite the seem standards is it ok to make them compromise if that is the way to achieve diversity without racial preference. Thats for both of you. Devon i agree with that analysis. I think thats what they were trying to get at. I think in closing, it was really entertaining we heard about squash players, the oboe and the importance of those things. We also learned there is segregation still happening in the country and i think what Justice Sotomayor was suggesting was factor. In any event, five hours of fun and excitement and im looking forward to trick or treating and getting back in it to diagnose further. Curt im going to force you and amanda answer one last question because i think its a good closing question. The 25 year sunset clause by ending racebased admissions to the class of 2028 or let me say the class entering in 2020 8 that would be more appropriate because its applied when you enter a not when you graduate. Do you think that is a possible solution or something the court might do . Devon yes, i do think that is something the court could do. I thing its highly unlikely. Though that would be better than suggesting race preferences are prohibited and Schools Institute this. Curt you would prefer it not wait five years . Devon certainly, but that is preferable to some of its earlier precedents on race issues, for example in brown i suspect they would never do it and after brown or take the time to implement it. Curt and amanda, before we let you take your child out for halloween trickortreating, what i guess that would be six years from now, do you think thats not nearly enough time . Amanda i dont think they are going to do it regardless. Talk abouthe 25 years thing as a way of getting at the question of when will this end and on what basis . Do we have to wait until society becomes equitable and might that be a goal we cant reach . You have different folks taking different positions, more or less optimistic. I could be wrong, but i suspect we are going to have a more moderate opinion then devon wants but one that sort of says explicit use of race is unconstitutional but it is ok to consider race as one factor in devising an admission scheme. One with an eye to diversity is going to be ok. Curt that is a good note to end on. Even though we did go three minutes long, i thought it was an excellent debate. Having great speakers helps a lot, so thanks to the speakers and thanks to the audience for tuning in, especially because we were a little late starting this event, given the lens of oral argument. Take care, everyone. Thank you. I was thinking this is the most arguments have been broken down with a double case. Amanda its the longest argument i have ever attended. And thanks to your audience for tuning into todays event. Thank you. Cspan shop. Org is cspans online store. Browse through our latest collection of cspan products, apparel, books, home decor and accessories. Theres something for every cspan fan and every purchase help support our nonprofit operation. Shop now or anytime at cspan shop. Org. As this years midterm elections draw closer, a group of panelists discussed how it could reshape the balance of power in congress and talked about potential 2024 president ial candidates. This conversation was hosted by the german marshall fund. I would like to remind our viewers the u. S. Goes to the