♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ >> Crossley: WELCOME TO "BASIC BLACK."

SOME OF YOU ARE JOINING US ON OUR BROADCAST AND OTHERS OF YOU ARE JOINING US ON OUR DIGITAL PLATFORMS.

I'M CALLIE CROSSLEY, HOST OF "UNDER THE RADAR," 89.7.

TONIGHT: HARVARD ADMISSIONS AND AFFIRMATIVE ACTION.

WE, LIKE YOU, ARE DEALING WITH THE EFFECTS OF THE CORONAVIRUS PANDEMIC.ùAND ARE TAKING PRECAUTIONS.

WE ARE WORKING WITH LIMITED STAFF AND OUR GUESTS ARE JOINING US REMOTELY.

THE CASE AGAINST HARVARD'S ADMISSION POLICIES-- WHICH WENT TO TRIAL IN 2018, WAS ALWAYS MEANT TO BE BIGGER THAN HARVARD-- BROUGHT ON BEHALF OF ASIAN STUDENTS WHO CLAIMED THE WAY THE PRESTIGIOUS UNIVERSITY RANKED ASIAN APPLICANTS WAS DISCRIMINATORY.

THE PLAINTIFFS' REMEDY?

GET RID OF AFFIRMATIVE ACTION, A POLICY THE SUPREME COURT SANCTIONED ALLOWING RACE TO BE CONSIDERED AS A FACTOR.

NOT THE FACTOR, BUT A FACTOR.

HARVARD WON ITS CASE IN 2018.

BUT LAST MONTH, A NEW CONSERVATIVE MAJORITY SUPREME COURT AGREED TO HEAR A NEW COMPLAINT BROUGHT AGAINST HARVARD AND THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL.

MANY EXPECT, THIS TIME, THE HIGH COURT WILL RULE FOR THE PLAINTIFFS.

WHAT DOES THAT MEAN FOR FUTURE ASIAN STUDENTS OF COLOR AND FOR AFFIRMATIVE ACTION?

JOINING US REMOTELY: DR. PAUL WATANABE, DIRECTOR, INSTITUTE FOR ASIAN AMERICAN STUDIES AND PROFESSOR OF POLITICAL SCIENCE, UMASS BOSTON; DR. NATASHA WARIKOO, PROFESSOR OF SOCIOLOGY AT TUFTS UNIVERSITY.

JESSICA LEWIS, A STAFF ATTORNEY FOR THE ACLU OF MASSACHUSETTS; AND BETHANY LI, SENIOR ATTORNEY AND DIRECTOR OF THE ASIAN OUTREACH UNIT AT GREATER BOSTON LEGAL SERVICES.

WELCOME TO ALL OF YOU.

SO WE FIRST DISCUSSED THIS CASE IN 2018 WHEN HARVARD WAS ACTUALLY IN THE MIDDLE OF THE TRIAL.

AND PAUL I WANT TO BEGIN FLASHING BACK TO THE CONVERSATION WE HAD THEN.

WHEN I ASKED YOU, IF THE LAWSUIT WAS STRUCTURED IN A WAY TO SAY THAT ASIAN AMERICAN APPLICANTS ARE BEING DISADVANTAGED.

HERE'S A IMPORTANCE OF WHAT YOU SAID.

>> THE REMEDY IS, IS TO TAKE RACE OUT OF THE PICTURE AND DO COLOR BLIND ADMISSIONS, AND NOT CONSIDER RACE AS THE LAW ALLOWS AS A FACTOR IN MAKING ADMISSIONS CHOICES.

THAT I SEE AS A MUCH GREATER CONCERN AND THAT'S REALLY THE OBJECTIVE OF THE SUIT.

THE SITUATION, THE DISCRIMINATION AGAINST ASIAN AERICANS, AS WHAT I SEE AS A FIG LEAF TO COVER THE REAL PURPOSE OF THE SUIT.

>> Crossley: SO WE'VE NOW, IT'S BEEN FOUR YEARS, YOU KNOW, HARVARD WON THAT CASE.

HAS IT BEEN PROVEN TO BE THE FIGURE LEAF THAT YOU THOUGHT IT WAS AND WHAT IS YOUR CONCERN AT THIS MOMENT?

>> YES, I BELIEVE IT'S NOT ONLY A FIGURE LEAF IN THIS CASE BUT GENERALLY IN TERMS OF THE RIGHT WING, SORT OF FIGHTING AGAINST THE TRANSFORMATION OF AMERICAN SOCIETY, MORE DIVERSE SOCIETY AS WE SEE IT TAKING PLACE EVERY DAY IN THE UNITED STATES TODAY.

THERE IS A RESISTANCE TO THE FACT THAT THE UNITED STATES WILL STILL BECOME A MAJORITY NONWHITE COUNTRY.

AND PART OF THIS POLARIZATION DISCUSSION WE'RE HAVING TODAY IS BEING REFLECTED IN DISCUSSIONS ABOUT WHETHER RACE SHOULD BE A FACTOR IN DETERMINATION OF ADMISSION OR WHETHER IT SHOULD BE A FACTOR IN VOTING RIGHTS AND SO FORTH.

AND THE WHOLE DISCUSSION ABOUT THIS THIS IS THE PART ABOUT LARGER ATTACK UPON THE NOTION THAT THE DIVERSITY AND CHANGE THAT'S TAKING PLACE WITHIN THE COUNTRY IS SOMETHING THAT'S GOOD FOR THE COUNTRY, SOMETHING WE SHOULD TRY TO PROMOTE AND TRY TO DEVELOP AND HAVING DIVERSITY A VARIETY OF PEOPLE IN PLACES AND POWER INCLUDING PLACES LIKE ELITE UNIVERSITIES LIKE HARVARD IS A GOOD THING.

THAT'S FUNNELLY WHAT WE SHOULD TALK ABOUT, WHAT THIS ISSUE IS ABOUT AND NOT MUCH ABOUT ASIAN AMERICANS BUT PRINCIPALLY ABOUT WHITE STUDENTS AND WHETHER WHITES ARE GOING TO GET THEIR AS THEY PERCEIVE IT, THEIR PARTICULAR INTERESTS SERVED IN THESE VARIOUS ARENAS, WHETHER IT IS ELECTORAL OR VOTING RIGHTS OR ET CETERA.

>> Crossley: NATASHA, LET'S BE RACE NEUTRAL, PLEASE EXPLAIN WHAT THAT LOOKED LIKE AND WHY THAT HASN'T WORKED?

>> WELL, IT'S UNCLEAR, WHAT IT YOU KNOW AT A VERY SIMPLE LEVEL WHAT IT LOOKS LIKE IS NOT ASKING FOR RACE IN THE APPLICATION.

NOW RACE COMES UP IN OTHER WAYS, SOMETIMES A PERSON'S NAME MAY SIGNAL RACE, A EXPERIENCE OF RACIAL DISCRIMINATION OR YOU KNOW IN THEIR ESSAY.

SO THERE ARE OTHER WAYS THAT RACE WILL COME UP BUT IT LITERALLY MEANS YOU DON'T CHECK THOSE BOXES AND THEN UNIVERSITY IS NOT ALLOWED TO TAKE INTO CONSIDERATION RACE.

NEW THE LAW SAYS WELL YOU HAVE TO MAKE SURE THAT THERE ARE NO OTHER RACE NEUTRAL ALTERNATIVES TO LOOKING AT RACE AND A LOT OF SOCIAL SCIENCE OVER THE LAST DECADES HAVE SHOWN THAT THERE REALLY IS NO GOOD SUBSTITUTE FOR RACE.

BECAUSE RACE CAPTURES SO MUCH IN THE UNITED STATES IN TERMS OF NOT ONLY EXPERIENCES WITH RACIAL DISCRIMINATION, IT ALSO INCLUDES THE KIND OF INTERGENERATIONAL INTACT OF RACIAL SEGREGATION, THE TIMES OF RACIAL SEGREGATION, I.T.

ACCOUNTS FOR SO MANY FACTORS THAT IT'S REALLY HARD TO -- AND A LOT OF THESE THINGS ARE ALMOST IMPOSSIBLE TO MEASURE.

WE DON'T HAVE GOOD MEASURES OF EXPERIENCES OF RACIAL DISCRIMINATION OF, YOU KNOW, INTERGENERATIONAL TRAUMA, OF, YOU KNOW, WEALTH.

SO IT BECOMES VERY HARD TO SUBSTITUTE A KIND OF PROXIES FOR RACE WHEN WE HAVE SOMETHING THAT ACTUALLY CAPTURES ALL THAT WHICH IS RACE.

>> Crossley: UH-HUH.

AND BETHANY, IT'S BEEN DEMONSTRATED NOW WITH ALL KINDS OF STUDIES AND RESEARCH AND EVIDENCE, THAT AFFIRMATIVE ACTION WORKS.

IT PROVIDES AN OPPORTUNITY.

IT DOESN'T GIVE YOU AN OPPORTUNITY BUT IT PROVIDES AN OPPORTUNITY TO BE IN SPACES WHERE IT WAS NOT POSSIBLE BECAUSE OF RACIAL DISCRIMINATION.

BUT I THINK A LOT OF PEOPLE SORT OF HALF-HEARING ABOUT THE PAST HARVARD CASE AND NOW THIS NEW ONE THAT'S COMING UP, WONDER, WELL, IF THE ASIAN AMERICANS WHO -- STUDENTS OR ASIAN STUDENTS WHO ARE PERSONS OF COLOR, FEEL STRONGLY ENOUGH TO HARVARD IS SOMEHOW DISCRIMINATING AGAINST THEM, WHAT ARE THEY SEEING?

BECAUSE IT SHOULD BE NOTED THAT THERE WERE MANY MULTIPLE ORGANIZATIONS INCLUDING SOME STUDENT ASIAN ORGANIZATIONS, THAT WROTE IN SUPPORT OF THE HARVARD CASE, IN 2018, SAYING THIS CHALLENGE IS NOT -- WE DO NOT SUPPORT THIS CHALLENGE TO HARVARD'S ADMISSION POLICIES.

SO WHAT IS AT THE CORE OF WHAT THESE PLAINTIFFS ARE SAYING?

>> YOU MEAN THE FACT THAT SO MANY STUDENTS AND ASIAN AMERICAN PEOPLE ACTUALLY HAD SPOKEN UP IN FAVOR OF PREVENTIVE ACTION IS SAYING EXACTLY THAT IT WORKS.

THAT THE DIVERSITY ELEMENTS, ALL OF THE THINGS THAT YOU WOULD EXPECT FROM A MULTIRACIAL CLASS WITH A VARIETY OF EXPERIENCES, IS REALLY WHAT'S IMPORTANT.

70% OF ASIAN AMERICANS DO SUPPORT AFFIRMATIVE ACTION.

IT'S A SMALL MINORITY OF PEOPLE IN THE ASIAN AMERICAN COMMUNITY THAT DON'T SUPPORT AFFIRMATIVE ACTION.

AND IT'S A BIT OF A SMOKE SCREEN, I THINK, WHERE THE QUESTIONS ABOUT WHETHER OR NOT AFFIRMATIVE ACTION USING RACE-CONSCIOUS ADMISSION IS CONSTITUTION IS A SEPARATE OWNERS CONSTITUTIONALITY IS A SMALL QUESTION WHETHER ASIAN AMERICANS ARE DISCRIMINATED AGAINST.

IN THE HARVARD CASE, THE JUDGE FOUND THAT EXTENSIVE TESTIMONY FROM STUDENTS, THE JUDGE FOUND HAD A THERE WAS NO INTENTIONAL DISCRIMINATION AGAINST ASIAN AMERICAN STUDENTS.

AND SO I THINK THE QUESTION OF AFFIRMATIVE ACTION AND WHETHER RACE CONSCIOUS ADMISSION BENEFITS PEOPLE IS AN ENTIRELY SEPARATE QUESTION.

BECAUSE IT'S OBVIOUS THAT AFFIRMATIVE ACTION BENEFITS EVERYONE INCLUDING ASIAN AMERICANS.

>> Crossley: IT WAS A SURPRISE TO ALL OF YOU JESSICA BUT YOU NOTED THAT ESPECIALLY SURPRISING WITH REGARD TO THE ADDITION OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL WAS THAT THE CASE WAS ABLE TO SORT OF SKIP A LEVEL OF COURT INTERVENTION, BEFORE ARRIVING AT THE SUPREME COURT.

WHAT DOES THAT SAY TO YOU, AND WHY DID THEY DISAGREE TO TAKE BOTH A NEW HARVARD CHALLENGE AND THE UNIVERSITY OF NORTH CAROLINA CAITS?

>> FOR UNC CASE IT'S ONLY BEEN HEARD BY A DISHER COURT AND THE SUPREME COURT GOT THE CASE WITHOUT EVER GIVING THE COURT OF APPEALS A CHANCE TO TO DECIDE THE ISSUE.

WHEN THE SUPREME COURT IS GRANTING CERT, THERE IS SOME KIND OF URGENCY OR IMMEDIACY TO THE CASE AND HERE ARGUABLY THOSE ISSUES OR THOSE FACTORS WERE ABSENT.

SO WHEN WE'RE LOOKING AT BOTH THE UNC CASE AND THE HARVARD CASE, SIMPLY THE HARVARD CASE DEALT WITH DISCRIMINATION AGAINST THE ASIAN AMERICAN STUDENTS.

THE HARVARD CASE IS GENUINELY BACKING OR JUST USING ASIAN AMERICAN STUDENTS AS KIND OF A SMOKE SCREEN FOR SOMETHING LARGER.

AND IMPORTANTLY, BOTH THE DISH COURT AND THE COURT OF APPEALS IN THE HARVARD CASE NOTED THAT IF THERE IS SOME KIND OF DISCRIMINATION AGAINST ASIAN AMERICAN STUDENTS, THE REMEDY FOR THAT IS TO STOP DISCRIMINATING AGAINST ASIAN AMERICAN STUDENTS AND PART OF THAT MIGHT BE THAT THERE IS SOME TYPE OF IMPLICIT BIAS IN WHICH CASE YOU NEED TO BE CONSIDER ATATE OR CONSCIOUS OF THAT.

>> Crossley: WHEN THE SUPREME COURT SAID RACE COULD BE CONSIDERED AS A FACTOR BUT NOT THE ONLY FACTOR.

IF IN FACT ANY OF THESE UNIVERSITIES OR COLLEGES, THE HARVARD CASE USED RACE AS A FACTOR THAT WOULD BE UNCONSTITUTIONAL.

BUT HARVARD CLAIMED AND THE COURT AGREED THEY DID NOT.

THEY FOLLOWED THE RULES AND SAID RACE IS A FACTOR.

AND IN FACT HARVARD SAYS THEY HAVE FOUR VERY STRONG CRITERIA BY WHICH THEY EVALUATE EACH APPLICANT.

THE TOP ONE IS ACADEMICS.

THERE ARE THREE OTHERS, AND THEN AFTER THAT, THEN THEY CONSIDER RACE AS A FACTOR.

AND THE POINT BEING: JUST SO THAT WE HAVE THIS ON THE TABLE FOR OUR VIEWERS, IS THAT THE COURT WAS VERY CLEAR IN HOW THEY SANCTION USING RACE AS A FACTOR.

NATASHA, YOU COULD NOT USE IT TO CORRECT PAST INJUSTICES, WHICH A LOT OF PEOPLE WILL SAY ISN'T THAT WHAT WE'RE DOING BY USING RACE AS A FACTOR IN THESE ADMISSIONS POLICIES?

NO.

THE COURT SAYS IT IS VALUABLE AS A MISSION TO INCREASE DIVERSITY ON CAMPUS.

AND THE WAY TO DO THAT IS TO USE RACE AS A FACTOR.

SO PLEASE SPEAK TO THAT.

>> YEAH, I MEAN, YOU KNOW, AFFIRMATIVE ACTION HIGHER EDUCATION STARTED IN EARLY 1960s AND IT REALLY WAS VERY EXPLICITLY A POLICY TO REMEDY PAST DISCRIMINATION, PAST RACIAL EXCLUSION, IT STARTED IN A NUMBER OF NORTHERN COLLEGES THAT DIDN'T COMPLICITLY EXCLUDE AFRICAN AMERICAN STUDENTS BUT VERY FEW WENT TO THOSE COLLEGES, IN PART BECAUSE THEY DIDN'T HAVE THE EDUCATIONAL OPPORTUNITIES TO BE ABLE TO STUDY AT THOSE PLACES AND THEY RECOGNIZED THAT THIS WAS WRONG.

SO THAT'S THE HISTORICAL ORIGINATION OF AFFIRMATIVE ACTION.

AND THEN FAST FORWARD TO THE 1978 PAKKE VERSUS UNIVERSITY OF CALIFORNIA SUPREME COURT DECISION, WHERE THERE WAS A SPLIT THAT WAS RELATED TO AFFIRMATIVE ACTION AND THE COURT WAS SPLIT AND JUSTICE POWELL SAID YOU CAN CONSIDER RACE IF IT'S ONE OF MANY FACTORS AND IT MEETS THE GOAL OF A DIVERSE LEARNING ENVIRONMENT.

AND SO THAT BECAME THE SORT OF LEGAL JUSTIFICATION FOR AFFIRMATIVE ACTION.

NOW, YOU KNOW, I THINK THAT IN MY VIEW AND I'M NOT A LAWYER, SO I THINK I CAN SAY THIS, IS THAT IT IS PRETTY CLEAR THAT THERE IS A LOT OF ONGOING RACIAL EXCLUSION.

AND SO TO ME THAT ALSO ARGUES IN FAVOR AFFIRMATIVE ACTION.

AND I THINK WE CAN'T LOSE SIGHT OF RACIAL INEQUALITY IN AMERICAN SOCIETY.

BUT CERTAINLY LEGALLY, AFFIRMATIVE ACTION MEETS A COMPELLING STATE INTEREST AND THAT IS TO HAVE A DIVERSE LEARNING ENVIRONMENT.

AND SINCE THAT BAKKE DECISION SOCIAL SCIENTISTS REALLY GOT TO WORK AND SAID, LET'S TRY TO UNDERSTAND WHAT EXACTLY IS THE IMPACT OF A DIVERSE LEARNING ENVIRONMENT.

DID A LOT OF STUDIES LOOKING AT INTERRACIAL INTERACTIONS IN COLLEGE, THE SHIFT FROM SOMEONE'S ENVIRONMENT IN HIGH SCHOOL TO COLLEGE FOUND A WHOLE HOST OF POSITIVE OUTCOMES INCLUDING INCREASED CIVIC PARTICIPATION, COGNITIVE CAPACITY, OF COURSE RACIAL ATTITUDES.

WE KNOW NOW THAT THIS REALLY DOES HAVE AN IMPORTANT IMPACT AND WE KNOW A LOT MORE THAN WE DID IN 1978 WHEN THE COURT ACCEPTED THAT JUSTIFICATION.

>> Crossley: UNDERSTANDING THAT BETHANY HAS MADE VERY CLEAR THAT WE'RE TALKING ABOUT TWO DIFFERENT ISSUES BOTH HARVARD'S ADMISSION POLICIES AND AFFIRMATIVE ACTION, LET ME JUST PUT THESE FACTS OUT.

IN 2018, WHEN WE WERE LOOKING AT THE STATS AT THAT POINT FOR HARVARD THEY HAD 40,000 APPLICANTS.

THEY ACCEPTED 2,000 AND 1600 ENROLLED.

HOWEVER, 4,000 OF THOSE 40,000 ORIGINALLY HAD PERFECT SAT SCORES.

SO IF THEY MERELY CONSIDERED NO OTHER FACTOR, THAT MEANS NO OTHER FACTOR WHICH THEY DON'T DO WITH ANY OTHER APPLICANT THEN YOU COULD FILL THE CLASS WITH JUST PEOPLE WITH PERFECT SAT SCORES.

THAT IS NOT WHAT ANY COLLEGE DOES.

THEY CONSIDER OTHER FACTORS.

AND SO WHEN WE TALK ABOUT THE QUESTION OF CONSIDERING RACE AS A FACTOR I THE CAN BE A FACTOR WITH PEOPLE WHO ARE POTENTIALLY APPLICANTS OF COLOR.

NOW PAUL, YOUR CONCERN IS THAT WE'RE OUT OF TIME IN THIS COUNTRY WHERE WE ARE ACTUALLY DEBATINGDEBATING SYSTEMIC RACISM AND WHETHER IT EXISTS.

BUT AT THE SAME TIME, HAVING DEMONSTRATED ON CAMPUSES, AND IN INDUSTRY AND THE REST OF AMERICA THAT THERE IS A VALUE IN HAVING DIVERSE POPULATIONS.

>> UH-HUH.

>> Crossley: SO THIS CASE THAT, THE COURT TAKING THIS CASE AT THIS MOMENT IS A LITTLE DISTURBING TO YOU.

>> IT IS.

AND LET ME RESPOND SPECIFICALLY TO THE ASIAN AMERICAN TAKE ON THIS.

I'M AN ASIAN AMERICAN WHO WAS ADMITTED TO HARVARD FOR GRADUATE SCHOOL MANY YEARS AGO AND I THINK I WAS ADMITBECAUSE OF AFFIRMATIVE ACTION.

IT WAS NOT BECAUSE I HAD PERFECT GRE SCORES BY ANY MEANS, I WAS FAR FROM IT.

AND I THINK I BENEFITED FROM IT.

I THINK ASIAN AMERICANS SHOULD UNDERSTAND THE VALUE OF HOW THEY HAVE BENEFITED FROM AFFIRMATIVE ACTION SO THAT NOT THAT I'M ANY GREAT EXAMPLE OF THIS BUT I AM SOMEBODY WHO IS ASSISTED BY AFFIRMATIVE ACTION, ASIAN AMERICANS HAVE OVER THE YEARS HAVE DONE SO.

SECONDLY IF WE LOOK AT THE SITUATION FOR ASIAN AMERICANS, WE SHOULD SAY NOT ONLY IS IT ASIAN AMERICANS WHO MAY BE DISCRIMINATED AGAINST AND PERHAPS THEY ARE, BUT WHO IS TAKING THOSE SEATS THAT SHOULD GO TO ASIAN AMERICANS IN TERMS OF LARGER DESIRE GETTING MORE DIVERSITY?

AND THAT FORCES US TO LOOK AT THE SITUATION OF THINGS OF -- THERE IS A DISPARITY IN THE ADMISSIONS PROCESS, BUT IT IS A DISPARITY IN FAVOR EVER WHITE STUDENTS.

IF YOU LOOK AT THE ISSUE OF OF LEGACIES AND YOU LOOK AT THE ISSUE OF SPORTS ADMISSION, PEOPLE ADMITTED BECAUSE OF SPORTS AND SO, THOSE THINGS OVERWHELMINGLY SERVE THE INTEREST OF WHITE STUDENTS AND IT'S NOT REALLY BLACK AND LATINA AND ASIAN AMERICANS WHO ARE STEALING SEATS FROM WHITE STUDENTS.

IF THERE IS ANY ISSUE OF DISPARITY IT IS WHITE STUDENTS WHO ARE BEING HELPED BY THE STATEMENT THAT SERVES THEM, A THIRD BEING DONE BY LEGACIES AND 70% FAWJ FALLING TO WHITE STUDENTS.

THAT IS WHAT'S STANDING IN THE WAY OF THE DIVERSITY THAT WE WANT TO SEE.

YZ TO BE CLEAR WHEN WE TALK ABOUT LEGACIES.

WE'RE TALKING ABOUT AS YOU HAVE MADE THE POINT.

A THIRD JUST HARVARD SPECIFICALLY, A THIRD OF THOSE ACCEPTED FROM HARVARD ARE FROM LEGACIES, PEOPLE WHO GRADUATED OR RELATED TO PEOPLE WHO GRADUATED FROM THE COLLEGE, THEY ARE STAR ATHLETES, THEY ARE MAYBE RELATED TO FACULTY AND STAFF, THERE ARE -- THIS IS LONG TRADITIONAL, THAT YOU GIVE CONSIDERATION TO CERTAIN SPECIAL PEOPLE.

AND OVERWHELMINGLY THOSE NUMBERS ARE WHITE KIDS.

THAT'S JUST NOT A NUMBER THAT INCLUDES HIGH NUMBERS OF STUDENTS OF COLOR.

HERE'S THE OTHER THING BETHANY.

I HATE TO KEEP THROWING THESE STATS OUT BUT WHEN CALIFORNIA AN MICHIGAN REMOVED THEIR AFFIRMATIVE ACTION PROGRAM IN THE MIDDLE OF ALL KINDS OF STUFF, THE DROP RATE FROM BLACK AND BROWN STUDENTS WAS 45%.

THAT'S UNDENIABLE.

THAT'S THE -- >> THAT'S RIGHT.

AND THAT IS ABSOLUTELY THE RESULT.

THAT'S WHAT UNIVERSITY, SCHOOL SYSTEMS HAVE FOUND.

WHEN RACE CONSCIOUS ADMISSION IS NOT ALLOWED.

AND NOBODY BENEFITS.

BLACK STUDENTS, LATINX STUDENTS, ASIAN STUDENTS, WHITE STUDENTS, SNOB BENEFITS.

BECAUSE THE -- YOU KNOW WHEN WRY TALK ABOUT DIVERSITY AS A COMPELLING INTEREST, IT'S ACTUALLY KIND OF CONFOUNDING TO ME HOW THE SUPREME COURT IS GOING TO BE ABLE TO SAY THAT IT'S NOT A COMPELLING INTEREST, RIGHT?

WHEN WE TALK ABOUT ALL OF THE DIFFERENT STUDIES THAT NATASHA AND PAUL HAVE MENTIONED AND WE UNDERSTAND HOW KIDS FROM K TO 12 AND INTO COLLEGES ARE BENEFITING FROM THE DIVERSE ENVIRONMENTS THAT WE LIVE IN, AND BECAUSE THAT'S THE WORLD THAT WE LIVE IN, IT'S CONFUSING TO ME HOW THE SUPREME COURT IS GOING TO BE ABLE TO OVERTURN 40 YEARS OF PRECEDENT AND SAY THAT DIVERSITY IS NOT COMPELLING.

>> Crossley: HOWEVER JESSICA, I JUST WANT TO MAKE THIS POINT, THIS COURT HAS OVERTURNED PRECEDENT.

THIS COURT HAS OVERTURNED PRECEDENT ON BEHALF OF EDWARD BLOOM'S GROUP HIS STUDENTS FOR FAIR ADMISSION ARE BEHIND THE HARVARD CHALLENGES OF THE UNIVERSITY OF NORTH CAROLINA, AT CHAPEL HILL CHALLENGES AND WAS BEHIND A VOTING RIGHTS CHALLENGE IN WHICH HE WAS EFFECTIVE OR HIS GROUP IN GETTING A SIGNIFICANT PART OF THE VOTING RIGHTS ACT STRUCK DOWN.

SO HERE WE ARE.

IF IT GOES AWAY WHAT ARE WE LOOKING AT JESSICA?

>> SO THE DISTRICT COURT IN THE HARVARD CASE REALLY LOOKED AT WHAT WOULD HAPPEN IF YOU DON'T HAVE AFFIRMATIVE ACTION.

AND THEY OR THE DISTRICT COURT FOUND WHEN WE'RE TALKING ABOUT AFRICAN AMERICAN POPULATION RIGHT NOW OR WHEN THEY LOOKED AT IT, IT STOOD AT 14%.

IT WAS ESTIMATED THAT THAT WOULD DROP DOWN TO 6%.

IF WE'RE LOOKING AT THE HISPANIC OR LATINX POPULATION, IT WOULD DROP DOWN TO ABOUT 9%.

IT WAS ESTIMATED OVER A PERIOD OF FOUR YEARS NEARLY 1,000 AFRICAN AMERICAN OR HISPANIC STUDENTS WOULD DISAPPEAR FROM THESE CAMPUSES.

SO WHEN WE'RE LOOKING AT STRIKE DOWN AFFIRMATIVE ACTION WE'RE REALLY LOOKING AT KIND OF DESTROYING ONE SECTOR OR ONE ASPECT OF DIVERSITY THAT IS ON CAMPUS, AND ARGUMENT IS BEING MADE BY EDWARD BLOOM AND THE POSITIONS THAT ARE BEFORE THE SUPREME COURT THAT IF THE BROWN DECISION WAS CORRECT AND WE CAN'T DESEGREGATION, THEN AFFIRMATIVE ACTION SHOULD ALSO LOOK AT RACE AND THEREFORE UNDER THE 14th AMENDMENT AND UNDER TITLE 6 WE CAN'T USE RACE AT ALL BECAUSE YOU DO CREATE SPECIAL CLASSES OF AMERICAN CITIZENS AND THAT'S THE THING THAT BROWN WAS SEEKING TO DESTROY, OBVIOUSLY DON'T AGREE WITH THAT STATEMENT BUT THEY'RE TRYING TO TURN AROUND THE PRECEDENT THAT WAS FAVORABLE OR HELPED SUPPORT ADVANCEMENT FOR BLACK AND BROWN CITIZENS AGAINST US NOW.

>> Crossley: CORRECT ME IF I'M WRONG BUT IN THE 54 DECISION, THE COURT IN ITS OPINION IN ITS RULING SAID, DISCUSS THE DAMAGE BEING DONE BY SEGREGATION, RIGHT, SO RACE HAD TO BE A FACTOR.

I'M JUST SAYING.

>> THAT'S RIGHT.

AND I THINK WE'RE LOOKING AT THE HARVARD CASE AND KIND OF WHERE WE THINK THAT THE SUPREME COURT IS GOING TO GO.

I MEAN IT'S IMPORTANT TO NO ALITO'S DISSENT IN THE SECOND FISHER CASE, WHICH FOCUSED ON THE FACT HE DIDN'T LIKE AFFIRMATIVE ACTION, BECAUSE HE FELT IT WAS DISCRIMINATING AGAINST ASIAN AMERICANS.

NOW YOU HAVE A MAJORITY IN FRONT OF THE SUPREME COURT, THE QUESTION WHETHER YOU'RE GOING TO STRIKE DOWN AFFIRMATIVE ACTION AND EDWARD BLOOM IS USING ASIAN AMERICAN STUDENTS TO GET US THERE.

NOW YOU HAVE A COURT THAT'S MORE WILLING TO USE A SMOKE SCREEN AS A POLICY THAT'S GOING TO STRIKE DOWN THIS PROGRAM.

>> Crossley: WHAT KEEPS YOU UP AT NIGHT NATASHA THOUGH YOU SAID THAT HIGHER -- INSTITUTIONS OF HIGHER EDUCATION COULD TRY TO FIGURE OUT A WAY TO SURVIVE IT THE BLOW OF REMOVAL OF AFFIRMATIVE ACTION.

>> WELL, YOU KNOW I THINK WE HAVE TO WAIT AND SEE WHAT HAPPENS.

I'M SORT OF NOT ASSUMING IT'S A DONE-DEAL.

I THINK, YOU KNOW, LET'S SEE, IT'S HARD -- I THINK LIKE BETHANY, I THINK I'M KIND OF BAFFLED AS TO HOW THEY COULD JUSTIFY A DECISION GIVEN ALL THE EVIDENCE THAT WE HAVE.

I THINK THAT UNIVERSITIES WILL PIVOT AS MUCH AS THEY CAN, YOU KNOW, PERHAPS THEY WILL DO AWAY WITH SOME OF THESE FOLLOWS THAT PAUL HAS MENTIONED, LEGACY ADMISSIONS, YOU KNOW, REDUCE ATHLETIC RECRUITING, YOU KNOW, THERE'S ALL KINDS OF THINGS LIKE GEOGRAPHIC DIVERSITY.

THEY WANT SOMEBODY FROM EVERY STATE.

I GUESS PEOPLE OF COLOR LIVE, WE LIVE ON THE COAST SO THERE ARE ALL OF THESE THINGS AND, YOU KNOW, I THINK MOVING AWAY FROM THE SAT IS SOMETHING THAT HARVARD AND A LOT OF COLLEGES ARE DOING.

I THINK THAT WILL HELP.

SO I THINK ALL OF THESE WILL ATTENUATE IF AFFIRMATIVE ACTION ENDS AND AGAIN I DON'T THINK WE KNOW WHETHER IT WILL OR NOT BUT IF IT DOES I THINK SOME OF THESE THINGS ARE A POSITIVE MOVE AND THEY WILL ATTENUATE THE IMPACT.

BUT I DON'T THINK THAT -- I STILL THINK THAT IF WE LOOK AT UNIVERSITY OF CALIFORNIA IT'S BEEN ALMOST 25 YEARS SINCE THE STATE OF CALIFORNIA VOTED TO END AFFIRMATIVE ACTION.

AND YOU KNOW THE IMPACT HAS BEEN -- IT'S NOT SO GOOD AND THERE ARE SOME NEW DATA THAT SUGGESTED EVEN IS IMPACTING WAGES.

WAGE DIFFERENTIALS.

SO YOU KNOW, I DON'T THINK WE SHOULD -- WE SHOULD SOFTEN WHAT THE IMPACT WILL BE.

BUT AT THE SAME TIME I THINK UNIVERSITIES WILL ALSO BE CREATIVE IN TRYING TO FIGURE OUT WAYS TO BE AS INCLUSIVE AS POSSIBLE WHILE FOLLOWING THE LAW.

>> Crossley: WELL HERE'S THE THING.

WE'RE MOVING TOWARDS 2050 WHERE THIS COUNTRY IS GOING TO HAVE WHAT SOME HAVE DESCRIBED AS MAJORITY-MINORITY POPULATION.

MEANING THERE WILL BE MORE PEOPLE OF COLOR THAN THERE WILL BE WHITE PEOPLE.

THIS SEEMS TO BE VERY RETROWAY TO GO GIVEN WHAT WE'RE LOOKING AT DEMOGRAPHICALLY.

PEOPLE ARE THINKING WELL THAT'S WAY DOWN THE ROAD.

ALL KIDS IN KINDERGARTEN, THEY'RE ALREADY MORE DIVERSE KIDS, MORE KIDS OF COLOR, THAN WHITE KIDS IN KINDERGARTEN.

AT THAT LEVEL, AT THAT AGE.

SO IT'S HERE.

SO BETHANY, I SEE YOU NODDING YOUR HEAD, YOU KNOW, IT'S LIKE WHAT TO SAY ABOUT IT?

BY THE WAY, I SHOULD MENTION THAT THE COURT DID ASK THE BIEMGHTS TO WEIGH IN, THE BIDEN ADMINISTRATION SAID WE DO SUPPORT AFFIRMATIVE ACTION, I DON'T KNOW HOW TO INTERPRET THAT, IS THE OTHER INDUSTRIES SAID, WE THINK THIS IS VALUABLE.

SO TO NATASHA'S POINT IT'S A BIT UNCLEAR BUT THEY ASKED TO DO THE RULING.

THEY DON'T TAKE EVERY KAY.

THAT TO ME SAYS THERE IS AN OVERRIDING, SOMETHING GOING ON THERE BETHANY.

>> EVERYTHING YOU JUST DESCRIBED SHOWS HOW THE IDEA THAT THE COURT WOULD SAY DIVERSITY IS NOT A COMPELLING INTEREST, DOESN'T COMPORT WITH REALITY, RIGHT?

AND IN THE 2003 DECISION, WHEN TE COURT KIND OF TRIED TO PREDICT THE FUTURE, SAYING 25 YEARS FROM NOW MAYBE WE WON'T NEED THIS AFFIRMATIVE ACTION POLICY, RIGHT?

MAYBE WE'LL BE IN THIS WORLD WHERE WE LIVE IN THIS KIND OF IDEAL, WHATEVER, IDEAL SITUATION WHERE RACISM IS NOT A THING.

AND EVERYTHING WE'VE SEEN DURING THE PANDEMIC HAS SHOWN US THAT'S NOT THE CASE.

NOW WHAT IS IT, ALMOST LIKE 20 OR SO YEARS LATER, RIGHT?

AND THAT'S THE KIND OF INTERESTING THING ABOUT THE WAY SFFA IS TRYING TO MAKE THEIR ARGUMENTS, RIGHT?

ONE OF THE KIND OF POINTS THAT THEY RAISE IS THESE UNIVERSITIES ARE SEEKING TO KEEP THESE AFFIRMATIVE ACTION POLICIES INDEFINITELY, RIGHT?

THEY'RE KIND OF LIKE SHOULDN'T WE BE WORKING TOWARDS THAT 25 YEAR MARK IN 2028 WHEN WE WON'T NEED AFFIRMATIVE ACTION?

AND THAT'S JUST NOT THE REALITY.

ESPECIALLY GIVEN THE WORLD THAT WE LIVE NP.

>> Crossley: WELL WE'RE GOING TO LEAVE IT THERE.

THAT'S THE END OF OUR BROADCAST AND THE END OF OUR SHOW.

WE HAVE MORE TO SAY ABOUT IT.

THANK YOU FOR JOINING US AND NOW STAY WITH US AS WE CONTINUE OUR CONVERSATION ON OUR DIGITAL PLATFORMS, FACEBOOK AND YOUTUBE.

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