SCOTUS Prepares To Gut Affirmative Action

By | November 13, 2022

The Supreme Court is expected to overturn affirmative action soon. Here’s why that is a terrible idea?

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Matt Binder DOOMED
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Emma Vigeland ESVN

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In what very well may be the final case in this country for a long time about race-conscious College admissions. Just a brief history of affirmative action in this country. Really in the modern era you know because you could argue 14th Amendment affirmative action. Reconstruction was very much about affirmative action. The introduction of public schools. The introduction of the 14th Amendment. A whole host of ideas that The Radical Republicans wanted in the 1870s let’s say 18 late 1860s was a function of recognizing that you can’t simply free millions of slaves and just say like okay. Figure it out. All good. Yeah, and the next wave came in the wake of the Civil Rights act in 1965. Where not only did the legacy of slavery remain. But this country had ongoing racial discrimination. And whether it was in the context of housing. Which is the number one developer of intergenerational wealth. Whether it was in the context of I don’t know so security and What professions you know what jobs are going to be considered. Whether jobs have Labor protection labor protections. Whether it was political power after you know essentially the programs of during Reconstruction. The rolling back of the franchise for black people. Such that you had to have a Voting Rights Act in 1965. I mean all of these things are quarters in higher education. Quotas in jobs. I mean that would be geared towards suppressing specifically black people and other minorities at the time. And so in the modern era. There was an awareness that we as a society need to encourage and to make sure. Because we don’t have the systems built because over 200 and some odd years 300 years all of our systems to find people and make people Avail you know like give people opportunity were warped towards white people in this country. And the Merit structures that we had were also developed with the idea that we were going to reward white people.

In what very well may be the final Case in this country for a long time About uh race conscious College Admissions Just a brief history of affirmative Action in this country Um really in the modern era You know because you could argue 14th Amendment Affirmative action reconstruction Was very much about affirmative action The introduction of public schools The introduction of of the 14th Amendment A whole host of of ideas that The Radical Republicans wanted in the 1870s Let’s say 18 late 1860s Um Was a function of recognizing That You can’t simply Free Millions of slaves and just say like Okay Figure it out all good yeah And The the next wave came in the in the Wake of the Civil Rights uh act in 1965. Where Not only did the legacy of slavery Remain But this country had ongoing racial Discrimination And whether it was in the context of

Housing which is the number one uh Number one uh developer of of Intergenerational wealth whether it was In the context of I don’t know so Security and What professions are you Know what what jobs are going to be uh Considered whether jobs have Labor Protection labor protections whether it Was political power after uh you know Essentially the programs of during Reconstruction Um the the rolling back of the of the Franchise for black people such that you Had to have a Voting Rights Act in 1965. I mean all of these things Um Quarters in higher education quotas in Jobs I mean uh that would Were geared towards suppressing Specifically Black people Other uh minorities at the time And So in the modern era There was a an awareness that We as a society need to encourage and to Make sure Because we don’t have the systems Built because over 200 and some odd Years 300 years all of our systems to Find People and make people Avail you know Like give people opportunity were warped Towards white people in this country and

The Merit structures that we had We’re also developed With the idea that we’re going to reward White people If I’m the uh if I’m great at uh you Know hitting a baseball And I’m in charge of things I’m going to make the highest uh value That’s out there your ability to hit a Baseball yeah so the correct framing of Around affirmative action and we’ll get Into this and what they’re contending is Not that affirmative action violates the Equal protection Clause it’s that Everything else right On the structure of our society is what Is in conflict with the equal protection Clause exactly and so Um the first case that basically capped People’s attempts to sort of like Um Create some equity in society was the Baki case And that was in 1978 off the top of my head and Um this one came in California and it Found that Um at the Supreme Court it found that Colleges because these are all sort of Like college questions right uh Universities Colleges could consider race to build a Diverse student body And the idea was that we’re not trying

To Um Help black people per se or for that Matter of native people Latino people Asian people The idea is that We want uh that there is value to Everybody including white people To be educated in an environment where There are a varied uh life experiences That very often translate into varied Perspective on things in the same way That conservatives are saying like we’re Being silenced Our views are not being allowed to be Shared at universities which of course Is absurd not the case But they do have an argument that it’s Important to have very perspectives But it’s also important for everyone Around you to be around other people With very perspectives this is a Legitimate societal goal because we want Better citizens And you get better citizens particularly In a country like ours when you have a Sense That there are people who are different Than you That there are varied perspectives that We must learn to work together That the challenges that are associated With having a heterogeneous society

Um are also are ultimately our strengths And The Baki case basically on that basis Um Argue that you can be conscious of race As a factor in creating Diversity on your campus like you can Also be conscious of do they live in a City do they live in a rural area do They go to a private school do they go To a public school are there uh parents Big donors to said University Well that’s yes I mean I can say like I My acceptance into NYU I think was in Part because I was in North Dakota and Applying for without a doubt without a Doubt I mean kbj made this argument in Oral arguments but just that we’ll get To that yeah Um the Supreme Court Affirmed this principle and again 1978 Do the math I can’t what is it 35 years Ago Yeah 44. I should say I think like 1970s I think Like it’s not possible because 1978 I Have like a vivid uh recollection of the Idea that that was 44 years ago is Terrifying is it really 44 it might be More No it’s 44. it’s not more okay all Right whatever between 30 and 45 five Years [Laughter]

So this is another long-standing Principle That is out there then in 2003 there was A grudder case The 2016 Fisher versus Texas Um They reaffirmed this idea The Um The 14th Amendment Which we mentioned and and you would Think this is going to be important Because one of the things that came Became clear yesterday in the in the Oral arguments was that the originalists And the textualists and this and that They weren’t even making a Constitutional argument They were making what you would call a Policy argument Okay which Um a They supposedly completely eschew as a Methodology of approaching Um legal decisions right like that’s Verboten You don’t consider the implications on Society When you decide it’s strictly about the Law They can’t do that because the law In this instance is the 14th Amendment Mm-hmm It’s it’s beyond statute it’s

Constitutional And the 14th Amendment You cannot believe the 14th Amendment Was not written With the idea That We don’t That it was a complete coincidence that We had just uh the freed the slaves It was a conscious effort To make sure That We integrated slaves into society and by Doing so and in doing so We also make sure that they get all of The benefits of society that they become First-class citizens That we do not have an underclass In this country that is a function of Race That’s important Because it’s not being You there are instances where you cannot Be blind to race if your goal is to make Sure that we do not have an underclass That is a function of race yeah Particularly when that underclass was Formed as a function of politics yes I Mean that You simply can’t apply the 14th Amendment In a colorblind way If you want to achieve achieve what the 14th amendment was written to achieve

So Um Most of the arguments apparently from The right Members of the Court We’re all Sort of Um Sub constitutional level if you will Apparently in uh in the gruder case Sandra Day O’Connor made a prediction That we won’t need To allow for Race Consciousness in college admissions By 2028. Which was maybe a slightly over Optimistic But I can understand at that point maybe Why someone in 2003 might might say you Know 25 years should should take care of This But and it was cited apparently by Um well first of all apparently Thomas In The Descent said That’s the date then yeah great Um That’s why putting those kinds of just Little nuggets in your opinions whether It be concurring or dissenting or Helpful for for uh Bad actors like Clarence Thomas that’s why he just did It with Um with abortion and all the other road Maps for conservatives to challenge uh

To basically saying use this to to go After gay rights Etc or use this case And um and apparently Amy Coney Barrett Brought it up too But the thing in my estimation that They’re missing is that like if you Accept that it was 2028 obviously like No one’s a soothsayer they obviously are Prepared to overturn this you know six Years earlier But if you accept the concept that Sometime in the future things are going To be fixed then you’re also Acknowledging that at the present They’re broken If you accept that it’s going to take 25 Years of this and then we should be done Then you accept What the mission is And The idea that they’re going to cite this And then overturn it and just say like Oh well the timing was off they have no Constitutional argument against it And to look at To look at Um Essentially where black people are in Terms of like wealth disparity income Disparity Uh unemployment Um if you were to look at life Expectancy if you will look at Um a maternal uh maternal uh you you

Know uh death rates if you I mean by Almost any metric You could see that like yeah we still Have a problem in this country And not just with with black people I Mean you can see in the context of Latino people you can see it in the uh Uh the the pro the in the case of of Native uh Native people I mean on and on And you can see it within the context of Say voting voting and this is where you Can see their ruling on how racism is is Essentially over and that’s why there Needs there can be less oversight on Southern States and uh opening the Floodgates for uh voter restrictions is Because it’s all their their partner Cases Frank honestly in their efforts to Undercut the 14th amendment by saying That these guard rails that we put in Place as a way to enforce the 14th Amendment and equal protection they are In and of themselves either null and Void or racist on their own yeah I mean On some level you would have this and You know that’s the thing with the Constitution you have to choose that That was a wrong Amendment Um here is let’s play a couple of Clips I mean I think katanji Brown Jackson now She had to recuse herself there were two There’s actually two cases up in front Of the court and they were argued uh More or less on the same day I think on

The same day Um one was involving Um Harvard Harvard in the trial court and in the Appeals court was found I mean the Plaintiffs argue that um Asian Americans Are being uh Discriminated against Because Harvard is as part of their overall Perspective on uh admissions Considering race as one of like I don’t Know 20 factors In their creation of a diverse student Body And the argument is they’re being Discriminatory towards Asian Americans On the trial court level on the Appellate level they were found not to Be discriminatory towards Asian Americans uh she had to sit that case Out because she heard it on the appeal On the on the appeal level So she is talking about the North Carolina uh case specifically And she brings up a an example Remember you’re in North Carolina now That is specific to North Carolina but It really does illustrate Sort of How Legacies Can impact

Outcomes today legacies that are Hundreds of years old can impact Outcomes today Pluses and so what I’m worried about is That the rule that you’re advocating That in the context of a holistic review Process a university can take into Account and value all of the other Background and personal characteristics Of other applicants but they can’t value Race what I’m worried about is that that Seems to me to have the potential of Causing more of an equal protection Problem than it’s actually solving and The reason why I get to that but Possible conclusion is thinking about Two applicants who would like to have Their family backgrounds credited in This applications process and I’m hoping To get your reaction to this Hypothetical the first applicant says I’m from North Carolina My family has been in this area for Generations since before the Civil War And I would like uh you to know that I Will be the fifth generation to graduate From the University of North Carolina I now have that opportunity to to do That and given my family background it’s Important to me that I get to attend This University I want to honor my Family’s Legacy by going to this school The second applicant says I’m from North Carolina

My family’s been in this area for Generations since before the Civil War But they were slaves And never had a chance to attend this Venerable institution as an African-American I now have that Opportunity and given my family family Background it’s important to me to Attend this University I want to honor My family Legacy by going to this school Now as I understand your no race Conscious admissions rule these two Applicants would have a dramatically Different opportunity to tell their Family stories and to have them count The first applicant would be able to Have his family background considered And valued by the institution as a part Of its consideration of whether or not To admit him while the second one Wouldn’t be able to because his story is In many ways bound up with his race and With the race of his ancestors so I want To know Based on how your rule would likely play Out in scenarios like that why excluding Consideration of race in a situation in Which the person is not saying that his Race is something that has impacted him In a negative way he just wants to have It honored just like the other person Has their personal background family Story honored why is telling him no Not an equal protection violation well I

Think I think I think because if if it Is the racial aspect of the application Then that the equal protection requires That that people of all Races be treated Equally certainly UNC shouldn’t give a Legacy benefit if they don’t want to Give a legacy benefit there’s no Obligation they do that I’m sorry but You said you said it was okay if they Give him a legacy benefit and what I’m Saying is that in almost exactly the Same set of circumstances a student or An applicant who is African-American and Who would like to have the fact that He’s been in North Carolina for Generations through his family and that They’ve never had a chance to go to this School honored and considered and it’s Bound up with his race Say I think that he’s not allowed to say That and that the university is not Allowed to take that into account and Because it relates to race precisely Because it relates to race I think you Might have an equal protection problem In saying that he can’t get credit for That when someone else can well and for Purpose of the hypothetical I am Assuming that the only significant Factor in that story happens to be the Fact that of the race of the applicant And that the race was previously barred From attending UNC obviously Nothing Stops UNC from honoring those who have

Overcome slavery or recognizing it’s It’s it’s it’s it’s past contribution to Racial segregation but the question is Does is that a basis to make decisions About admission of students who were Born in 2003 and I don’t think that it Necessarily is I don’t think that the Equal protection Clause suggests that it Is is there there are there are many There are many factors in an application Like that that might be appropriate to Consider including if they are first Generation college or including if They’re socio socioeconomically Depressed but the only difference is Between a white student and a black Student I don’t think the equal Protection Clause permits the admissions Decision to hinge on that All right and to be clear He is trying there there’s a bit of like A straw man here because it’s not the Only Factor There is no instance where colleges or Universities are saying this person’s Black we’re going to let them in this Person’s white we’re not going to let Them in that that doesn’t happen But what her hypothetical ill Illustrates is is that there are things That you cannot separate From People’s race And Being a legacy

Was that what they call a legacy like When you’re a legacy admission the Legacy admission You just don’t have that opportunity In that certainly in the same way yeah Uh if you’re a black person In this country because I mean that in And of itself I think really sort of Destroys a lot of this argument but That’s what they want they want the Hollow Halls of University of North Carolina and Harvard to be institutions To continue power structures that have Been in place in this country that are White and I mean just some context on Who that guy is who is speaking there Patrick Strawbridge He’s an attorney for a law firm that has Represented Donald Trump and both of the Attorneys are doing this in front of the Supreme Court Court our former law Clerks to Clarence Thomas and Partners At that firm now katanji brown Jackson Recused herself because she previously Ruled in that Harvard case because of Her connections to the case This is the second time at least in Recent memory on some of these more Important cases heard by Clarence Thomas Where he has refused to do so I mean are You suggesting that Clarence Thomas Should not hear from two lawyers that he Personally trained uh essentially I am Suggesting that that might undermine the

Integrity of the court and it’s not as Egregious as him say you know refusing To recuse himself when it comes to cases Involving his wife directly but you know I mean they’re kind of uh that that’s a Consistent theme with him obviously Um But I think you know he This example that katanji brown Jackson Brings up is is Um so worthwhile to think about in the Context of just about any time when you Think about race in this country There are things that Frankly as white people We’re just not aware of It’s just like a an added plus that we Have the ability like oh my ancestors Went to like my parents went to this College and my their parents went to This college Legacy admissions help you But they are structurally speaking at This time at the point in time even even I don’t know 50 years out from when uh Black people were allowed to go into Some of these colleges it’s still Still a Structural Obstacle to you getting into college Because 50 years ago You’re a black person the first time You’re trying to you know your first Person in your family trying to go to

College You’re going up against people have been Legacies for you know one or two Generations yeah they might have donated A building or two to that college well I Mean but put aside that just like even Just pure yeah straight up Legacies Um you know you were not allowed to have A legacy and then yes money becomes a Big issue too if we know That Because of policies this country Um Administered both Both in terms of like Society but also From a governmental level that inhibited The accumulation of wealth by black People We know that’s a fact Then the ability to sort of give a Library or just even donate to college Or hire a college counselor or send the Kids to getting Um you know SAT score or you know uh Training or whatever it is tutors Whatever it is that’s going to help go Into uh get into a college there are all These structural things And again this is just one element One element in a bunch of different Considerations that look in there and And I think in Harvard’s case like they Don’t take anybody who’s not in a Certain percentage of the class of of

Their High School uh class Discrimination I mean and also Harvard Is a private entity right I mean it is Shocking that it seems like they’re Going to rule in a similar way for both Of these cases where UNC is at least you Know a State University Harvard is Different and they’re I mean maybe Roberts will try to split the split the The difference on that or I I don’t know Because he’s as always jocking for the Reasonable position oh Roberts is I Think vehemently uh against this oh Interesting oh yeah I mean you can go Back and look at the uh at the the way They eviscerated the Voting Rights Act They’re all convinced this is over Yeah I mean they’re convinced of it They’re absolutely convinced of it 100 And Um and the the real question is not Will Robert split the baby on this and I Don’t know really at this point how you Split the baby Uh because it’s pretty split it’s pretty It’s pretty split yeah Um the real question is Do they start applying this to all sorts Of governmental programs that are met in Some way to help redress The structural imbalances that exist in Our society because of Of the institutional racism that we have Had or continues

So Robert’s no he’s like When it comes to race Roberts is really He’s he’s highly motivated Yeah he’s a go-getter in that respect Um Let’s play one more clip of this before We go into the fun half Um the argument in the backy case And then gruder and then in uh Fisher Following that was that diversity Helps everyone It helps the white students it helps the Black students it helps the brown Students Helps the male students the female Students the rich students the poorer Students The the city students the herb the rural Students Diversity helps now I just listed I don’t know what Five or ten different you know The factors Gender diversity Racial diversity Ethnic diversity Um National diversity Socio-economic diversity Uh Geographic diversity I think we all know what that means And if you do understand what I’m Articulating You are a little bit smarter than one of

The Supreme Court Justices I give you Clarence Thomas who has absolutely no Idea what diversity means I’ve heard the word uh diversity quite a Few times and I don’t have a clue what It means Uh it seems to mean everything for Everyone The and I’d like you first you did give Some examples in your opening remarks But I’d like you to give us a specific Definition of diversity in the context Of the University of North Carolina and I’d also like you to give us a a clear Idea of exactly What the educational benefits of Diversity at the University of North Carolina would be Yes your honor so first we Define Diversity the way this court has in his Court’s precedence which means a broadly Diverse set of criteria that extends to All different backgrounds and Perspectives and not solely limited to Race and there’s a factual finding in This record pet app 113 that there are Many different diversity factors that Are considered as a greater factor in Our admissions process than race I mean imagine the the level of feigned Ignorance you must have To pretend you don’t know what diversity Means in this context yeah and also Imagine The feigned ignorance you must

Have To not understand the educational Benefits of it I mean it’s just a perfect example then This is this is uh you know arguably uh Stream but you know the Nations is a Nuanced thing and and it’s hard to see You know on on the level of a university Level exactly what it is but There is a an incredible disparity Between Toddlers who come from wealthy families And toddlers who come from uh a poor Families In terms of their listening vocabulary When they enter into kindergarten Reason why there’s Universal Pre-K and The question is why And It is quite settled as to why that is The case it is because lovely people Expose their children Because of their money to a wide variety Of experiences And people They go on trips They live in the city they go to the Country If they live in the country they go to The city They go to different places they see Different things There are some kids you know Kids who are living in in poverty who

Live in the city They don’t know what a llama is Well they see llama You know like they can’t pick out a goat They can pick out a dog or a cat Maybe They might have more familiarity with a Rat uh if you live in New York City than You would like uh you know what a sheep Looks like Well you’re a wealthy kid you’re going On a trip to the farm You’re wealthy kid you’re gonna you Maybe you fly in an airplane if you go To a foreign country maybe you hear a Foreign language uh you know maybe you See different cuisines It is so self-evident As to why Surrounding yourself with diverse Viewpoints and perspectives and Life Experiences Is more of an educational benefit than Not that it’s almost absurd to even Braise this like it’s It is okay you honestly have to be Generating Like the ignorance yeah he’s it’s right like he like the idea That it means everything to anybody what The hell is it I don’t even know what What that meant it’s been defined by the Court like the this is pedantry right Like the Communication only works when you can

Share terminology and the reaction is You see what Jordan Peterson too like What does this word mean we can’t even Know anything that’s just a refuge of a Reaction here that doesn’t actually want A conversation to go anywhere yep yeah And I mean this is also the the the role That he wants to play on the Supreme Court is to be the black voice on the Court saying these kinds of things he uh Not to psychoanalyze him as as well but You know he also probably tries to Adhere to a anti-diverse Anti-anti-racist ideology because then It completely validates him as one of The nine most deserving of all of the Judges that could ever Ascend the throne That’s how these like people who treat Themselves like priests view themselves As well I I I I have I I would be terrified to take A half a step into the psychology uh That is going on in his mind but um But nevertheless the idea that is know What diversity is is uh hard to believe Either colloquially or in the fact that It’s been Literally defined in All the precedents on which this case is Going to overturn I’m uh I need to watch This clip uh but I’m founded on C-Span Justice Thomas on the court and Intellectual diversity oh so maybe we’ll What the hell does that mean what does

It mean what does he mean by that uh What he means is we need to gerrymander Uh uh spaces so that conservatives have An equal sign right exactly I mean and Uh uh there’s Chicago Steve has to be depressing to Argue a case before this court no matter What you write or say the outcome was Predetermined of course of course Without a doubt I feel like that’s the That’s like as important of a mission is To make sure that that’s broadly Understood by like people going into law That like this is all fake oh yeah How many times have we had people on the Like you know Ian milheiser wrote that Book what was it eight years ago six Years ago I mean we’ve had Mo I mean It’s it’s been out there it’s just I Think like it is becoming more and more I mean really it’s not even the lay People although the lay people are going To cause the pressure on the Institutions but it’s going to be hard Because And as children of lawyers I think we Understand this this is like This is a religion to them yes and they Are the priesthood And they’re finding out that wait a Second The pope is known about this scandal Uh Uh this is where we’re at yeah right now

The Supreme Court justices have no Clothes exactly exactly There’s not a single legal like like An additional doctrine that they’re Arguing and you know you read this Transcript I’m sure maybe somebody else Can find it but it is This case rests on their assessment that Racism is not a problem anymore that It’s 2028 even if you could have put a Number on it at that time I mean Sandra Day O’Connor like she knew racism Boy and she was gonna give you a Timeline on when racism goes away It would have been great if she was Correct or even remotely correct Um Yeah and then it’s just uh I also just want to put this out there Too they are attempting to and when they Eventually side with uh Overturning affirmative action they are Attempting to censor these uh Institutions and prevent them from uh Doing their the practices as they see Fit right they should be able to engage In I mean I’m just using their own Argument against them but this is like a Freedom of contract or freedom of you Know corporate decision-making argument That you can make against them but well That’s the thing is that you would think That they are they’re required to say That what they’re doing is a violation

Of the 14th Amendment but they’re not Making the argument on those grounds Um but I guess we’ll we’ll see what the Decision is we will we will we will have A legal expert on to talk about this More I think probably Uh maybe between now and June when they Come out with this decision uh but um at Least once Uh you know the the It is increasingly it’s as as much as I Am interested in the in in the sort of The legal arguments and the breakdowns Of this increasingly Um It is uh it’s harder to retain my Interest in it Um because it is So over but I do think that there is Value in laying it out and showing how Much they are avoiding what they what What these five or six Uh five or six depending on the case Contend is their Judicial approach their philosophy in Terms of the way that they resolve these Cases and and because I think like Showing you know It’s clear they have no clothes but Examining some of the birthmarks on Their body and liver spots and their Liver spots and uh their pubes on a Coke Can as it were yikes uh all uh part of The project here speaking of

Litigiousness Uh we played a couple of clips from the Oral arguments yesterday uh I guess Monday about affirmative action and There are two cases one is out of uh one Is against there’s plaintiffs against Harvard and one is plaintiffs against uh North Carolina University of North Carolina I believe it is And Um We heard we played a a really great clip From uh kbj just recently uh put on the Court she had to recuse well she didn’t Have to She felt it was best to recuse herself From the Harvard case because she had Heard it on the lower court level Um But she was in for the North Carolina Case And she gave a great example of why one Would consider race these are not quotas It just it is how much how much race Conscious you are in trying to create a Diverse University setting Um but she also gave another example of How in not using race you may go afoul Of the 14th Amendment which as you know Was written in response to the freeing Of the slaves It Was Written specifically how do we Integrate slaves who have been Second-class citizens

Maybe arguably third class citizens I Mean yeah third class citizens how do we Integrate them into society That was the goal of the 14th Amendment And she used a great example about you Know what if somebody applies to UNC and Says like I’m a legacy well my my Family’s been going here for five Generations and you know I want you to Know that that’s that’s my level of like Attachment to this uh University and Legacy admissions are extremely high Being a legacy candidate really helps You in admissions Well if you’re a black person Your opportunity to be a legacy uh Admission Is extremely diminished Not just because UNC apparently wouldn’t Allow black people in until like 1955 or Something to that effect But obviously like you just didn’t have The opportunity to go to college or your Ancestors didn’t have the opportunity to Go to college And so that’s off the table for you how Is that fair But what it also shows is how the legacy Of slavery and how the legacy of Institutional and societal Discrimination carries through Generations And she’s addressing the 14th amendment In that question

The so-called textualists and Originalists In the course of these cases barely Talked about the Constitution They talked about a level of discussion That was even below statutory it was Like policy outcomes now In terms of my Judicial philosophy Talking about policy outcomes are okay In fact I I think that’s like you know What should be done that is sort of like The brand Dyson Uh brief theory on some level But these guys get into like stuff that Is completely irrelevant and really akin To What somebody just watching Fox News all The time would have like some like Aggrievement stuck in their craw L here is Sam Alito modeling that for You More related question and that is the Circumstance this is a real problem and I’ve heard it describe to me uh by People who face it uh pause it for one Second okay student pause it for one Second This is a real problem and he’s heard it Described to him by people I’m which I Fundamentally doubt But understand Applicant applies To University of North Carolina The admissions people look at

Where do they live are they rural are They Urban how many other people do we Have that are rural that are Urban in This What are their grades What were their SATs maybe you don’t Have to submit it now apparently that Much but Um how’s their personal essays Uh What about their extracurriculars What about their references What about their relationship to people On the uh in the college maybe maybe They knew the interviewer What about their legacies all these Things And more probably go into this So just contemplate all those factors Because UNC doesn’t just look at race And say okay no no you got to hit a Certain threshold and then they’re They’re looking at all these different Factors to create a diverse a student Body But think about How verifiable all those factors are And then just listen to the real problem That he sees And that is the circumstance this is a Real problem and I’ve heard it described To me uh by people who face it uh when Can a student honestly claim to fall Within one of these groups that is

Awarded a plus Factor so let’s say the Student has one grandparent Who falls Within that class Become a student claimed to be a member Of an underrepresented minority Yes we rely on on self-reporting and we Don’t give one great grandparent If that person believes that that is the Accurate expression of their identity I Don’t think there would be one great Great grandparent That’s going to make me continue to go On right Right I think that That agreed that it would seem less Plausible that that person would feel That this is actually capturing my true Uh racial identity but the same is true For any of the other diversity factors That we it’s family lore that we have an Ancestor who was an American Indian Okay so I think in that particular Circumstance it would be not accurate For them to say uh I identify as an American Indian because I’ve always been Told that some ancestor uh back in the Old days was an American it was an American Indian yeah so I think in that Circumstance it would be very unlikely That that person was telling the truth And the same is true for uh you know we Rely on self-reporting for all the Demographic and other characteristics That we ask for and there’s nothing

Special about the racial identification On that score your honor you get an Automatic All right put aside for a moment the Sort of like How freaking juvenile One of the six people who are in a Position to deny Half the population into pre-existing Individual right that has been around For 50 years I mean these are the power That this individual has Who has decided like he’s going to use This opportunity to I guess criticize uh Elizabeth Warren because maybe she has Been uh critical of of him Put aside that the level Of emotional Maturity that is associated with that Honestly like we’re talking like junior High level Put that aside for a moment How does a university establish that When my daughter is applying for college She is applying right now actually That she wrote her essay than not me How does the University establish That the reference she gets From I don’t know her music teacher or My friend Is actually real Did they call and find out if my Daughter actually volunteered

At The places that she said she volunteered At for extracurriculars Did they uh check on to see did she Really have that part-time job Did they go and see like How much analysis did they do when they Checked out her High School 4 500 kids How much how much did how How Deeply did They assess The quality of that school so that they Could Market against like her A’s there Were are as good as the A’s that someone Might get at like one of the private Schools I mean we could just go on and on and on The self-reporting In the college application process Is I mean short of grades Which of course in and themselves is Also subject to all sorts of like Different like You know you see like we don’t know if You really constitute black I mean Incidentally this is also was was was a An attack on on Barack Obama when he ran It’s not really black Um The like the idea that this has any Bearing on the situation if you’re very Worried about it then say like well if The issue is we don’t know I mean again Remember the question is can race be

Considered as a factor in creating a Diverse Um uh University setting if you are Worried About that That okay we accept let me put it this Way the question as to whether or not That can be considered Has no bearing on whether one can verify That status because there are mechanisms To verify that status If it’s really important you could say The colleges could say like please send Your Um 24 and me or whatever that thing is Your genetic breakdown To to assess that we take your grades we Also take a genetic breakdown I mean I don’t know if his argument is like Race isn’t a thing It’s just socially constructed so Therefore we can’t use it as a mechanism To what if someone’s been living in a Rural area for a year How do we know that they’re really a Rural type of person What have they been living in the city For a year how do we know that they’re Really an urban type of person are you Do you get those points geographically You you live in the country you live on A farm You get that if you’ve only been out

There for two weeks What if you lived there for six months What if you only want your senior year There what about what if you were a Junior I mean It is stunning It is stunning To hear him ask that type of question Because it is so irrelevant It is so much about just trying to sort Of like propagate racism Never mind how they decide this He’s going to argue that racism is over We don’t need this it’s supposed to be Colorblind and and think about how Racist The implications of his question are That these identities are being Weaponized in his mind To get stuff they don’t deserve It’s it is really that is really twisted That dude is Twisted I don’t know what else to say except for The fact that like what’s also Horrifying is He is one of five people essentially That Are going to five or six And stripped uh an individual right for The first time in the history of this Country that has existed for 50 years Has been recognized for 50 years They’re going to further

Um Take away the government’s ability to Regulate to protect uh workers to Protect citizens in all different Mechanisms uh to protect consumers They’re going to go on and make it Impossible for the government to protect Our water our air They’re going to inhibit the ability of Of like state legislatures to even Decide that you can have an independent Commission To do the um the redistricting I mean They’re just going to go on and on and On and look at the mentality Of the guy who’s going to be steering The ship Because it is a leader he’s the leader Of This Crew It’s it’s also just wild because we’ve Seen it a few times in arguments but Also at his some of his like speaking Engagements at the Heritage Foundation And other places or like a college Campuses where like As it is sometimes with like guys like Brett Weinstein it’s like it’s it’s the You know piety of the discourse in terms Of how he delivers things dressed up That’s the dressing for what is Essentially a guy who’s like an edge Lord Fox News Grandpa A buddy of mine listened to the uh the The for the first time he listened to

The Supreme Court argument the other day He’s like holy crap I didn’t realize that these guys are morons right it’s like it’s it’s Not even and beyond beyond the craziness Of it it’s also not even like sound you Know legal thinking too like you said in The beginning of the before the clip It’s like daily wire commissary it Really is asking asking the North Carolina solicitor general if someone Should can if an applicant if an Admissions uh uh staffer should look at You know family lore and the thing is Like you could easily they could easily Say we think that this is still we we Decide that it is okay to be race Conscious what we need to do though you Need to come back and provide us a Mechanism in which you will verify right The distance they could have done that Or the practicality he disdains the Practicality of like oh how about we Have a relationship with tribes and Tribal affiliation and that sort of Thing to determine This and like Um and then actually there is um Feedback mechanisms that criticize folks For falsely claiming certain identities Like that’s already actually in hand it Doesn’t need to be a Supreme Court A lay person could fight could spend Five minutes And find all sorts of different like

Scenarios where a uh where you know a Court has decided something but there Needs to be some standard applied to Make it clear what constitutes what Passes a certain threshold I mean that Happens all the time That was Kennedy’s big remark in terms Of uh of gerrymandering I’m not sure Where I stand on this gerrymandering if Social science can figure out a way in a Mechanism in which to say like something Has been extremely gerrymandered and of Course they did come up with that And then he ignored it and uh handed Over the court to Kavanaugh and then it Was all gone Um I mean it

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