The Case(s) Against Affirmative Action

>> Tom Church: This is the libertarian podcast from the Hoover Institution. And today, we're discussing two Supreme Court cases on affirmative action. I'm your host, Tom Church, and I'm joined by the libertarian professor Richard Epstein here at Hoover. Richard is the Peter and Kiersten Bedford senior fellow. He's the Lawrence A Tisch professor of law at NYU, and he's also a senior lecturer at the University of Chicago.

Now today, Richard, we're discussing the Supreme Court's new ruling on affirmative action in university admissions, university admissions, something that I think you actually have some background in history, and having been a professor for a decade or two, right?

>> Richard Epstein: 55 years, alas.

>> Tom Church: That's incredible. Well, Richard, we got two opinions today, six three and six two, effectively ending the consideration of race in college applications.

So the cases were regarding Harvard University and the University of North Carolina. So you've got a private and a public university. And chief justice Roberts, writing the majority opinion, wrote, students must be treated based on his or her experiences as an individual, not on the basis of race.

Now, the reaction to these rulings has been, I think, what you'd expect, some of the right pretty happy, some of the left not so much. So I'd like to know, Richard, give us a baseline here. This is not the first affirmative action case that's been decided before the Supreme Court.

How has this evolved over time?

>> Richard Epstein: Well, it's evolved very greatly. First of all, let me sort of state my position, which is I'm sort of in the middle. And the way I say it facetiously is I wanna run the programs, otherwise I don't want to have them.

And the point is there are many complicated trade-offs that are involved, it requires sensitive people at the helm. And the great difficulty that I think we have in trying to come to a consensus is the justice Roberts position is not at all, and the other side is full screen ahead, and there's nobody who seems to be in the middle saying, yes, it's a good, but it's traded off against other goods.

Now, how does this all begin? Well, it actually begins a long time ago with the adoption of the equal protection clause in 1868. And what's interesting about the equal protection clause is the word protection. And originally, what was clearly meant by this situation was that the government, when it exercised its coercive powers of the police, it could not prosecute blacks in ways that it would not prosecute whites.

And it couldn't give favors to white people that it didn't give to black people. So it was equal justice within the criminal system. Back in 1868. And for much time before that, there was very little systematic constitutional law dealing with the question of whether or not there were race based prohibitions against the distribution of benefits that came out.

So what happens is they debated this before segregated chambers inside the congress. And they were constantly talking about 40 acres in a mule for black people who were the victims of slavery and the restoration. Nobody seemed to think that the benefit tied was covered. Well, you can't run an effective constitution when the government has its power more and more resources to dispose.

If, in fact, you give them the complete freedom on the benefit side that you take away from them by an absolutist rule, on the burden side, that is the coercive side. So the question is, how do you manage to expand this to make it work? And it turns out that there's serious difficulties in the criminal law.

There is very little doubt that a colorblind principle has a great deal of attractiveness to it in terms of the incentives on all individuals not to rob, maim, rape, and steal, and so forth. But on the benefit side, if you start looking at private institutions, they all cheat to some degree, and they have idiosyncratic preferences that don't match those of the chief justice of the United States.

That is, no matter where you go in the United States, whether you're talking about liberal or conservative institutions, there's usually a substantial working majority that is in favor of some kind of specialized programs to take into account underrepresented groups. Sometimes they do it on the basis of past discrimination.

Sometimes they do it on the basis of the way in which they want the institutions to do. But if you listen to the phrase that I used, it had the infuriating words, some kind, because there is, in fact, an enormous difference of opinion of what kind of program one wants to start to put into place.

And if you don't have a very clear idea of the programs that you want to put into place, you don't have an idea of what kind of prohibitions on various kinds of benefit programs you're going to put into place as well. And what the chief justice does is to take a position which intellectually, I find extremely indefensible, which is to say that the benefit side of the equation is just like the burden side of the equation, so that we ignore everything.

There is not a private institution in the world that does that. Merit is an individual quality, it is one that I treasure. I think the attack on merit that has taken place by people like Daniel Markovitz and Michael Sandel is a death threat to the university. So I don't want to do that.

But I want to say, in effect, that if everybody kind of thinks that something is done, what you try to do is to figure out how you could run a management solution to the problem. So you have enough of these affirmative action programs to satisfy the demand, which is very strong, but you don't let it compromise in an intolerable fashion the academic integrity of the university.

And what happens is the defenders of the affirmative action programs insist that there's no trade off. And that's just wrong. If you start looking at the huge academic gaps, and if you look at the performance of admitted places like Harvard under an affirmative action program where they graduate at lower rates, with lower grades, with all sorts of complications in terms of the time it takes to the degree and so forth, I mean, all of this stuff actually matters.

And so you get one side saying, my God, we ignored all those complications, and you have the other side saying, you know, if you ran a run program, you're going to treat that as bad as this. When this thing started in the early period, when I came to USC in 1968, we were given a program which had 15 black students and 15 hispanic students, chiefly from Central America and Mexico and so forth.

It was a straight quota system. And, you know, once had to try to figure out how you integrated it, and it was too much, too fast. It was very difficult to do these things. And so what you need to do is to have less dictation from the government, state or federal, and more internal awareness of this.

When you had faculties that were middle of the road faculties, as they were more likely then, as opposed to highly progressive faculties today, what you did is you had programs that were administered by people who were more or less conscious of these various trade offs. I was always on the conservative side of this, meaning less affirmative action than many others would favor, but never in favor of shutting down the programs entirely.

And today, unfortunately, what we do is we now have a polarization in this area like we have in every other area. There are people who insist the single greatest sin in the history of western civilization was Justice O'Connor's remark in grew to that. In 25 years, this problem will be over.

She was wrong then, it's obviously clear that she was wrong now. You can't have that. And on the other side, a pure color blind system is treated by many people, including many people in the American Constitution society, as a de facto introducer to Jim Crow segregation and so forth.

And that's also crazy. So what I do is I sit here, I see that the warring fashions that we have are not going to be able to persuade each other to the right. The central issue is going to be how it is that we stop circumvention of the rule by funny conventions that are simply covers for discrimination.

They've got very ample precedent for this. If you go back to the 1964 Act, half of it is designed to say intentional discrimination is not allowed, and the other half is trying to use disparate impact proxies or something of the sort to prevent that kind of circumvention. Now we are going to see the question as to whether or not circumvention is gonna be prevented here.

Or whether it's gonna be a leaky enough vessel that some degrees of affirmative action, nobody knows how much, we'll get back in there. But I think what you can do is you can say that we have universities now in a desperate position to try to figure out how they get some of this stuff in place.

Having already admitted their classes in many instances for the September term that's coming up, they're going to be some short term adjustments. I'm not aware, I didn't read the opinion this closely as to whether there was any sort of suspension saying, well, this goes into effect on January 1, 2025, or something of that sort.

We just didn't see this. And so what happens is this is gonna be a very grim prologue and so forth. And what we should do then is try to figure out what the strength of the arguments on the various sides are.

>> Tom Church: Well, let's get into the arguments on the case, or at least some details on the cases, because I think it's interesting to look at private versus public one, right?

So this decision coming down rests on the Equal Protection act, which makes sense to me. Why? University of North Carolina as a public school, public funding, you follow the rules there. But Harvard is a private university. I mean, I know that it takes federal funds, but if it were to issue federal funding, would it be allowed to run its admission program however it wanted, or does this decision preclude that?

>> Richard Epstein: Well, today it allows it, because what happens, it was a conditional grant, and it had to do with the compliance with the non discrimination law. But one of the things you could do is you could be the Hillsdale College of the next generation and turn down all federal funds and then try to operate yourself in the way in which you see fit.

And interestingly enough, there's nothing about Hillsdale College which says they wanna reinstitute Jim Crow. They understand as well as everybody else that the success in this world depends upon in some sense being inclusive. I.e., do not formally exclude other disfavored groups from your situation, and then you have all the disparate impact problems.

So I think you could get away with it. But on the other hand, that was a temporary expedient. The employment laws do not depend upon employers getting grants cuz employers rarely get grants from government money. In some cases, you will see programs that are put into place where you say, if you want to be a government contractor, you have to follow this, that, and the other form of anti discrimination.

These rules have been in place for a long time, and you can do that. But it's a lot easier today for many business to avoid receiving government grants than it is for universities that have all these huge scientific programs that depend upon NIH and the National Science foundation.

You wanna do it, you can try, but nobody's gonna try. With respect to the constitutional stuff, as I've told you, I don't think the clause is as rigid as Chief Justice Robert said, you're on the distribution of benefits side. And when I wrote about this in 2002 in the Michigan Law Review, I said, take a responsible private university and let the public sector have the degree of separation that you have in a private one.

I'm very unhappy about what has happened because I don't think the distribution of private plans remotely looks like what it was over 20 years ago. The universities, this is no secret, are heavily progressive. People like myself who are kind of libertarian, classical liberals and so forth, are what, 5% of the university population?

There are enough, Ben, don't mend this, end this situation like Bill Clinton-type democrats. So maybe you get 15% in the universities who's gonna be comfortable with this decision. Not happy about it, but comfortable with it. But 85% are gonna be vehemently opposed. And I'm not gonna be prepared to go in there and say that everything you guys believe for the fastest just completely a mistake.

I'm trying to figure out some way to get some middle position. I can't get one, that is the big problem today. And you look at what the university plans do and how they talk. The greatest problem is they basically claim too much and they didn't tell the truth.

So the first thing you want to say is, well, we don't use a race based system on all this stuff. We have these committees, we have extra factors, holistic evaluations and so forth. Justice Thomas said in his concurrence, that's the way we kept Jews out from Harvard in the 1920s.

We used a holistic evaluation. And what a holistic evaluation does is it allows you to disregard the characteristics you don't want to take into account and elevate those that you do want to take into account so that nobody can stop you. And it's clear with respect to Asian students that holistic evaluation was a big thing.

On the other side, the Columbia, when they said they're going to get rid of the college level, the use of the board test is a requirement. They said we're doing a holistic thing. Now the blunt truth about all of this stuff is if you just looked at any Ivy League school at the top categories on boards and grades.

You would have more than enough students to admit and there would be an incredible diversity on all sorts of dimensions amongst those groups. So the person who is colorblind would say what we really want to do is to look at this top group and then we'll figure out the way in which we take into account diversity.

Cuz we wanna have a balance between science and liberal arts majors. We wanna take in a few athletes, we're gonna take in some alumni, and so forth. Everybody else would put race in that category, but you can't do that now. But what they're doing in effect is they're pretending to do something that they're not doing, and hypocrisy is a terrible way to lead.

I think the briefs that Harvard and North Carolina put in to say that they met a sensible colorblind standard but just transparently fought. And yet they found it extremely difficult to give the kind of limited justification that I would do. In part because it wouldn't let them do what they want to do, which is to have a much bigger discount on these things.

I mean, what one has to do is to look at the overlap on boards and grades between the most preferred groups and the least preferred groups. And there's no overlap that's going to take place between them. And so what happens is the students for fair admissions have a field day pointing out the fact that this is all a sham.

I would never say something like that. I would say in doing an affirmative action program you take an academic discount, but we think other values may in the end be more important. And then you have to fight in different institutions. When you have the Supreme Court do this, they're making the rules for everybody.

But it turns out that if you're a religious school, you may have certain kinds of flexibility or lack of them that you don't have in a secular school and so forth. Big colleges may have one set of programs, heavy scientific institutions may raise other kinds of problems and so forth.

Religious basis for the institutions may matter, just a lot of variation on how you'd wanna do it. And Justice Roberts, the chief justice, never run an institution in his life, wouldn't know how to do it if his life depended on it because he just haven't experienced, well, he has this kind of prior.

But then you get Justice Kagan, who was in the middle of the Harvard system for many years, and she is, of course, heavily influenced by the patterns at Harvard, and she's very much in favor of them. Now I don't think she should recuse herself on this case because I think, a, those experiences do matter.

But b, I think the reason why judge Jackson probably had to do it is she's just been on the court for a year or two and what happens prior to that has a heavier weight. But if it turns out that you've been on the court for ten or twelve years like Justice Kagan, I think everybody has to say you're not perpetually disabled from doing something because you had a distinguished job.

She would not be able to hear cases by the government because she was a solicitor general and so forth. So I don't think that's the problem. But I think what's really the problem is that both sides of this thing have really taken out the heavy artillery, and they're gonna kill everybody off on both sides of this issue.

And guys like me who wanna stand in the middle, are basically gonna be on an island which has been denuded by all sorts of missiles coming from both sides. So my sense about all of this stuff is one of kind of genuine upset, grief, disappointment and so forth.

Nobody tried to work for a middle position. Some people say, well, it's required by the constitution. As I mentioned to you, the benefit side is never the same as the coercive side of a constitution. So I don't think that's right. But at the same point, I don't think you're allowed to make fabricated arguments moving in the opposite direction.

So I think in some sense, it's really a plague on both your houses.

>> Tom Church: Richard, let me ask you about the dissents. Justice Sotomayor wrote a dissenting opinion, and I'm gonna read this quotation. This decision cemented a superficial rule of color blindness as a constitutional principle in an endemically segregated society.

So is it fair to say that the dissent's argument is that while affirmative action considers race as a factor, it's okay because it is righting an existing wrong? And if that's a fair characterization of the argument, I mean, clearly or legally, this isn't holding up because it's being struck down.

But what remedies are there? I mean, you keep talking about the middle position. What is clearly not a completely equal society? But I mean, this is the approach, right? Let's try and fix things through this, even though it's not exactly colorblind.

>> Richard Epstein: Let's just start with the endemic stuff, and then go to the question of how I would try to fix the plan.

I think that's one of the great falsehoods of all time. You may not remember, but I grew up, and I remember the day that Brown V Board of Education came down. And the epic that it made in society as I was informed by my great teacher, Mr. Greenberg, in 6th grade.

And I mean, everywhere you looked, you understood what it was like to live under a segregated system. It was commonly understood that if you were white and you decided to go down south, you would take your life into your hands. If you managed to take gasoline from a station that was owned by a black proprietor, and everybody kind of understood all that stuff.

There was rigid institutional separation everywhere. The integration of the military in 1948 was not a decade behind us and so forth. Places like the University of Chicago, laboratory schools were segregated until the end of the war. Jackie Robinson didn't get into the major leagues in a heroic fashion until 1947.

You wanna see segregated? I can show you segregated. And in some sense, it was really a kind of a ghastly situation to know that. And as a wide eyed 11 year old radical when this thing happened, it was all completely incomprehensible to me. I do not understand how group hatred could ever survive, even though I knew it certainly did because of the massive amount of antisemitism that existed in the same period.

And the wholesale slaughter that took place by Germany, the massive torture in Japanese internment in prison camps, and all the rest of this stuff. To say that this is endemic and it hasn't changed is to be blind to every single significant change that has happened. The number of people who were white and privileged and so forth, who gave their all in order to undo this particular system at a time when it took some real courage, was very powerful.

And so what do you wanna say, Jack Greenberg? Who was the brains with or behind Thurgood Marshall, a great man himself. He was basically, one of these racists, no, I mean, the only reason why the civil rights movement took off is there were large segments of the white population that was bitterly opposed to what had happened.

Just the way the only reason why we managed to get the abolition of slavery is that, the abolitionists were themselves white and were prepared to put themselves on the line. So I think that's exactly the wrong thing to say. I think what happened is in many ways, were able to open up the system.

Second thing I wanna say is, what happens is her causation argument is frankly, bunk. If you are trying to figure out why it is that there is a lag with respect to black individuals attributable to social function. The first place to look is at all the progressive initiatives that in many places have been designed to help people.

And so you start looking at minimum wage laws, and it turns out they have a disparate impact. On black people essentially, at that level, have lower human capital, and so they can only compete by seeking to take lower wages and then try to work their way up. You put a minimum wage law in place, what's gonna happen is you're gonna create segregation.

If you start creating inside universities this sort of dual expectation, what's going to happen is, you're going to increase the cleavages between the performance level of white and black students. The white students today, and the junior and senior here in college or in a white heat. They know that they have no safety schools that are available to them under the current system.

They know that they have to have super grades, super boards, super extracurricular activities, and they go to the mat. You're a black student then you're told, hey, Harvard is taking 60% minority candidates, you cruise on in. And so what happens is, you're now creating an incentive structure that will accentuate the kinds of differences.

So what you really have to do is, not have this pathetic causal model that everything we have relates back to either segregation or to slavery. To give you just the simplest of numbers, if you're trying to figure out the structure of the black family in the United States, it is much weaker now than it was in 1925 at the height of segregation.

Nobody would say that there was the same level of cohesion in black and white families at that time. But one of the striking numbers is that black illegitimacy rates then were much lower and white was there. And both of these groups essentially have higher illegitimacy rates today than they had before.

Well, it can't be sort of social factors. Its social policy that deals with the question of, do we give sanctions to this of one kind or another on these things? So what happens is you can't write a history, this is just utterly indefensible. That starts at 1865 or at some age, say 1896 or whatever, and assume that everything that happens after that date really doesn't matter at all.

This is a continuous situation, if you're trying to figure out what the differences are, you have to be much conscientious about this. And to talk about this is endemic, and to say that sort of racism is dominated, misses all the other problems that we have to face. The major problems, as pointed out a long time ago, are weak family structure, high criminal rates, they're highly correlated and so forth.

You wanna get performance, what you want is traditional standards. The example I always give is a successful academy with Eva Moskowitz and their basic philosophy as a father. We frankly don't give a darn whether you're in a segregated class or a non-segregated class, you have certain obligations as a student.

Your parents have certain obligations to you in terms of what you learn, what you read, how you dress, and so forth. And if you can't learn in this particular environment, it's your fault, not anybody else's. And these kids tend to perform well. So Justice Thomas throws a conniption cuz he's one of these guys who made his way up.

But I think the basic point is correct and that using these constant arguments about endemic discrimination and so forth is just wrong. Can I find cases where there's discrimination against minorities recently? You can find them all the time. Can I find them where there's discrimination against qualified white individuals who have passed over?

You can find those. What makes it so striking today is that, when they start doing this, it's not just affirmative action. It's an effort to discredit individuals who have done nothing wrong. I mean, a global level of white privilege or a global statement of white supremacy applying to all individuals without regard to differentiation.

Making anybody who's on the other side of the issue a descendant of the KKK is just inflammatory rhetoric. And one has to stop this kind of talk if we're going to get better. And what happens is Justice Sotomayor, Justice Jackson, they tend to repeat the same narrative. It would be an enormous benefit if at some point in their opinions, they wrote to thank all the people who risked their lives and their fortunes and gave their efforts to try to improve the situation from a truly intolerable situation as existed under segregation.

But what's happened is we're throwing the baby out with the bathwater. The Booker T Washington view is if you're subject to discrimination, you just sit down, buckle, and work even harder. May not be a justification for segregation, but the prescription of hard work and conscious endeavors is something that every kid should take.

And when you start having people making excuses, what's gonna happen is, you're gonna make the racial gap on the achievement scores even harder and the affirmative action problem even more serious.

>> Tom Church: You've been listening to the Libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish on Defining Ideas at hoover.org.

If you found this conversation thought provoking, please share it with your friends and rate this show on Apple Podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church, we'll talk to you next time.

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