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John Yoo:He is professor at Boalt Law School, University of California, Berkeley and former law clerk to Supreme Court Justice Clarence Thomas.  He favors a race neutral admissions policy.
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Let's start out with your academic background. Tell us a little bit about where you did your law degree and how you came to that.

I went to Harvard for college and majored in history. And from there I went right to law school at Yale and I went there mostly because Yale had the reputation of producing law professors and people who were active in government and public affairs and not just people who went to practice in law firms. And when I went to law school, I went there with the intention of doing more than just practicing law.

The real problem is to provide an equal quality education to everyone...that's an investment the country ought to make. Affirmative action failed for that reason--it prevented us from coming to grips with the real problems of primary, secondary school education and issues about family breakdowns and things like that. And then after that I clerked for Judge Lawrence Silverman in the D.C. Circuit Court of Appeals who, as the Undersecretary of Labor, actually drafted the first affirmative action policies.

Then I came here directly after that as an assistant professor, and I've been here (at UC Berkeley's Law School) for five years, this is my sixth year. In that time I also took a leave of absence, and I clerked at the Supreme Court for Clarence Thomas. Then after that I worked as the general counsel to the Senate Judiciary Committee, which at that time was chaired by Orrin Hatch, senator from Utah.

At what point in your life did you decide that you were against affirmative action?

It was in college really. I think college was really the first time that I saw affirmative action at work in a setting I was personally involved with. You go to college and you see affirmative action policies at work. You know people who don't get in because of affirmative action, people who do get in because of affirmative action. You see the effects it has on people. I think that's probably the first time I really thought about the issue in any detail and you studied it in classes in college. I also worked on the student newspaper then, so I used to write Op-Eds on things like that. So doing that and seeing it work out in the real world and studying it in school got me to think out exactly what I thought about it.

What are your concerns about affirmative action?

It was once I got into law school when I started studying the Constitution and studying cases and judicial decisions, that I came to the secondary belief, which is different than the first one, about whether it's good policy or not, that it was also unconstitutional.

There was a lawsuit brought while I was there that claimed that Asian admissions to Harvard were being capped, and I guess I was admitted during the years that this policy, if there was one, was in effect. While I was a student, the case was never resolved, so I don't know what happened in the end. But during that period the admission level for Asians was kept within one percentage point, and yet the university continued to say there was no cap, no numerical limits. Instead they said that Asians were lacking certain qualities that added to a well-rounded student body. Asians were too concentrated in certain subjects, like science or math, or weren't good at vocabulary skills or written communication, things like that. I thought that these kinds of beliefs embodied certain racial stereotypes of their own, so that's when I started getting involved with being on the student newspaper and taking a position.

Let's talk a little bit about this post-proposition 209 freshman class at UC Berkeley. The numbers have come out and it's about 10 percent Latino and black, which is a 50 percent drop from last year. Is this something that you expected? What is your reaction to the makeup of the class this year?

What concerns me the most is not the exact number of minorities that's reached by this new policy or the previous policy--sit's the way that those numbers are arrived at, the way the admissions process has worked. What concerns me about the whole reaction to Prop 209 is the attempt or the movement on campus and in different schools --including the Law School -- to get rid of standardized testing, to downplay the use of grades and to push more power into the hands of individuals who just have complete discretion to choose who gets into schools and who doesn't. That is one of the things the Civil Rights Movement originally fought against. If you think about the way things were before the Civil Rights Movement, it was "old boy" networks, all kinds of things like that where people didn't have any standards or rules to determine who got into schools, who got promotions, who got certain kinds of jobs. I'm really worried we're returning to that kind of world, as a reaction ironically to Proposition 209.

You are saying that this subjectivity is a reaction to 209?

I think the really surprising and unfortunate reaction to 209, which I certainly didn't anticipate beforehand, was that you would have such a strong desire to maintain certain racial balances in undergraduate and professional school student bodies, and the only way to maintain them was to downplay the use of standardized testing and emphasis on GPAs. As a result, you would have the elimination of standards, merit-based standards in admissions policies. That really surprised me, and that actually worries me, that in the end we may have a worse result than would have been the case if affirmative action had remained.

So what, in your opinion, is merit, or, what is meritocracy?

What is merit? I think personally that the things that we've relied on in the past work. I think success in school generally works, I think that performance on standardized tests generally is a pretty good predictor of success in law school. As far as we know in law school the LSAT, which is our version of the SAT, is the best factor to predict how students perform in law school. It's even better than undergraduate grades, better than any other factor that's been tested for. We haven't done, I'm sure, enormous sociological testing of exactly what qualities go into making the best lawyer or the best law student, but so far, as far as we know, the LSAT is the best factor. And so, if we know something works, and we've relied on it for quite some time, I don't see the reason why we have to get rid of it. And the only reason I believe that administrators here or at the undergraduate campuses want to eliminate the use of these tests is to be able to maintain minority enrollments. I think that's pretty clear. And the way to do that is to shift discretion and authority to admissions committees.

As to your question what's a meritocracy, I think a meritocracy is establishing some kind of uniform standards of success and achievement that everybody has to compete under at the same level. In other words, it's sort of like the idea of the rule of law, that the same rule should apply to everybody regardless of your background or your education or your upbringing or the color of your skin or your religion. And in school, you know, we are in the business of trying to educate people who are bright people and we're trying to educate them to be successful at what they do.

If we do go by the standardized tests--let's say the SATs for the undergraduates--we know that the number of Asian Americans would gradually increase and maybe be 90 percent Asian and white pretty soon. Do you see a problem in that?

You're talking about Berkeley as opposed to the UC system, because as I understand it, in the UC system as a whole the numbers don't change that much. You just have a re-allocation of which campuses students are attending.

The fact that there are 75 percent whites and Asians at the Berkeley campus doesn't bother me if the tests we were using and the process we used to pick the undergraduates was a fair and uniform one that did not pay attention to race, creed, color, religious belief or anything like that. I think the problem is the alternate model that people are trying to put in its place, that there has to some kind of proportional representation or link between the number of people in the population and the number of people that ought to be at the school.

I think maybe that might work for things like corporations or other parts of society like the military. I don't think it applies to education, particularly the California system. The California system is a different kind of public educational system than some other states have. You can have a state university where everybody got to go to one big campus. If you had something like that, you would have proportional representation. But the University of California system is designed with certain kinds of specializations between different campuses, and the Berkeley campus for better or worse was designed to be the jewel of the crown. It's supposed to be a campus that can compete with the best private universities in the world in terms of the faculty and the students and the education that's provided. I think having that kind of excellence is going to be inconsistent with the idea of having proportional representation of students in the student body. When you start having proportional representation, you are saying that the idea of that university, of that campus, is some other value than educational or scholarly excellence. It is making sure that different groups get what they see as their fair share. That's a different value and a different purpose than having the finest research university in the world which is what the mission of Berkeley has been in the past. And that is why it's a great university. I think once you try to impose a sort of proportional representation you're going to undermine the value of the best university.

So you don't see the value of diversity in academics? You think that it's mostly a political value?

People say it's an educational value. It's very amorphous, though. I'm a lawyer. When people make assertions I say 'What's the proof? Show me.' How does diversity exactly aid in the educational process? People say it does, but I don't really see how it does. Has there been any showings that say that people who go to universities with strong affirmative action policies do better in life than schools that have completely merit-oriented policies? Does it show that people do better in classroom performance?

Diversity of ideas and viewpoints is a value in education. It clearly teaches you critical thinking. But that doesn't necessarily mean that diversity of the skin color of people in the student body guarantees you're going to have diversity of viewpoints. And underlying that I think is a belief that certain kinds of people, certain races, have certain views. That's the only way I can see that those two ideas are connected. And I think that is the very idea we were trying to get away from in society, to have these kind of stereotypes of the way certain races and certain people think just because their skin is a certain color. I think that's wrong.

You had talked a little bit about the 75 percent Asian and white (student body). What do you think of maybe a progressively dominant Asian population on campus at Berkeley?

I know that some Asian community leaders in California are actually concerned that there are going to be too many Asians at Berkeley, because they think there's going to be a backlash against Asians in the state by other minority groups or by whites. If these community leaders out there really believe that they want to shortchange their children's education in order to achieve some kind of racial balance or harmony, they can easily live it out in their own lives. The thing that bothers me is that they're trying to impose it on other parents who want their own kids to have the best education possible. And I think that's really wrong. That's a lot of the reason that Asian parents took the risks and hardships to ensure that their kids could come to the United States and have a good education. They aren't available in Asia. I'm from Korea. The difficulties in getting a good university education there are very high. I know that's one of the reasons why my parents came to the United States. And I think it's terrible that there are people in our own community who want to restrict the ability of people to send their kids to the best schools because they're worried about some far-off hypothetical future where there's going to be racial hostility or violence, just because there are too many Asians at Berkeley.

And the thing is, we don't ask these kinds of questions in other areas of life. We don't worry that there are too many blacks playing basketball because otherwise there might be a backlash against blacks, because there aren't enough whites or Asians or Jews playing basketball. It's only in this sort of educational area that you see this argument being made. And I really find it disturbing.

If you want to have a different university which is open to everybody -- an open access college university system -- then you can say everybody has a chance and the representation should be about proportional, because the point of that university is to let everybody in. But that's not the way the UC system is designed.

But you're saying that education can be measured with these standardized tests. Aren't there many different ways of telling that a student is qualified to get into the university? Is that the only way? Also, how much of a difference, let's say 100 points in the SAT, is to determine that the student will eventually succeed?

I think that's the fairest way. It's the way that removes human bias from the system. A standardized test is something everybody takes. There are a lot of claims that these SATs and LSATs are somehow culturally biased. I don't know why a newspaper just doesn't publish some of the questions. I mean math is math. And math is a substantial portion of the SAT. A lot of the LSAT asks very basic reading comprehension questions and logic games. It's not culturally biased. You don't have to be from a certain culture to understand the questions. But these are arguments that people are making.

It might be the case that it has to do more with economic background, because there are some people who can afford to go to better schools and can afford test preparations. But that's not an issue of race, right? That's an issue of economic distribution of wealth in our society. And it's a question that has more to do with the primary and secondary school systems, not with the universities.

But if it does have to do with socio-economics, then you could also argue that a lot of students from higher income brackets can afford to take these classes and take the SATs three or four times and raise their score artificially. Then in that case, would that be a good judge of the ability?

There's this assumption that the natural cure for this kind of problem is just to have a certain mixture of races. And that does not really follow. Now you can say, well the answer is to give a special advantage to people who don't have much money, because maybe you could show that poverty reduces every poor person's SAT scores 10 percent. That would be okay, I think. That doesn't make assumptions about people's race or about the way they think or about what the proper mixture of race in society is. That is a remedy that corrects for the socio-economic problem.

I'd like you to comment on the K-12 system in the state because there are about eighty high schools out of 1,000 that provide the majority of students at Berkeley.

One of the other reasons I object to affirmative action is that I really think it's a failed social experiment. I think it's actually social justice on the cheap. I think that's what Stephen Carter, who was one of my professors at Yale, called it. Affirmative action was a way for the people in the elites to feel good that they were doing things to fix the race problem. And I'm never going to deny that there aren't racial problems in this country. By admitting a few more people into graduate programs in colleges--and we've been doing this for almost 30 years now--can we really say it's made a difference? Is having 100 more minority lawyers every year going to solve the problems of millions of minorities in this country? No, it's not. It's an ineffective social program.

The real problem is to cure the primary, secondary school problems all over the country and to provide an equal quality education to everyone on that basis. And that is going to cost society a lot of money, but I think that's an investment that the country ought to make. So to my mind, affirmative action failed for that reason. It prevented us from really coming to grips with the real problems, which are primary, secondary school education and issues about the family breakdowns and things like that. But it wasn't really a very well thought out successful social policy.

Realistically, how long do you think that is going to take?

Oh, it will take generations. We've been living under affirmative action now for 30 years, almost two generations. And if anything, I would say that race relations, or the economic position of minorities in this country has not gotten any better. Some people think it's gotten worse. No one's really arguing it's gotten a lot better. If you try out a policy--and this is putting aside the issue of constitutionality, and I just think affirmative action is unconstitutional too--but just as judging social policy, this is a social policy that has not succeeded. You look at the students and children who live in inner cities who don't have access to good education and we think the problems are going to be solved by having affirmative action for a few hundred people at the very top echelons of higher education. That's not the problem. That just fools you into thinking that we're solving the problem. We're not.

What about the question of re-segregation of UC Berkeley and UCLA versus the rest of the UC system, that you're going to have a few races going to these elite colleges versus the minorities?

I don't think it's a problem. I think if you have a fair process and you have a test that's related to educational goals of having excellence in education and that's the way things fall out afterwards, then that's just the way things fall out. People say it's a problem, but I don't understand what the problem is. It's a problem for some people because they want to have proportional representation. But putting that aside, proportional representation and diversity are not end goals in themselves. They're just a means to something. But I don't know what the end goal of having proportional representation at the university is.

The end goal of having standardized tests and using GPA is to have the brightest, smartest most competitive people at the best university because we believe that furthers the advancement of knowledge and the education of society's leaders in the future. What is the end goal of proportional representation? It's a means that has suddenly become an end in and of itself. Diversity is just an end for people. But it's not really an end. How does diversity actually lead to the betterment of society or achieve social good in a way that's separate from diversity itself? I haven't seen compelling arguments made to that effect.

So to my mind if we have a system that's designed to get educational excellence and scholarly achievement and we use testing mechanisms we think are related to getting people who achieve those goals and that's the way the racial groups happen to fall out after that process, a race neutral fair process, then that's the way it's going to be. Because once you try to compromise on that, you're undermining the values that you're trying to achieve with that testing process in the first place.

What really concerns me is an attempt to move the authority of who gets to go into what schools into the hands of people with ultimate discretion. They have no guidelines or standards to control what they do. And the reason they want to do that is because obviously the people who are going to be picking are ones who share these sorts of values of having racial diversity and exalting that over educational excellence. That's a real problem because that's fine for other kinds of universities or other kinds of campuses. I don't think that's what the Berkeley campus should be doing. The Berkeley campus was established to be the best public university in the world and to be the equal of any of the private universities in the country, so we have to use that goal when we pick people who are going to go here

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