Richard Sander on SCOTUS Oral Arguments: Affirmative Action and Discrimination against Asian Americans at Harvard and UNC

Richard Sander has studied the structure and effects of law school admissions policies. He coined the term "Mismatch" to describe the negative consequences resulting from large admissions preferences.

Steve Hsu 0:13
So, Rick, I understand you were at the oral arguments at the Supreme Court on Monday.

Richard Sander 0:20
Yes, I was.

Steve Hsu 0:22
And you're now back in Los Angeles.

Richard Sander 0:25
I am.

Steve Hsu 0:26
Great. So did you go out? Especially for the hearing?

Richard Sander 0:31
Yes, yes. Although what was nice is that while I was waiting in line to get in, I ran into Richard Kahlenberg and Peter Arcidiacono, who were the two experts used by SFFA in the cases. And they're both good friends, the three of us ended up spending a lot of time together afterwards discussing our impressions of the case.

Steve Hsu 0:53
Fantastic. I would love to, I mean, if you can, without violating any confidences from them, I would love to hear what they had to say about it as well. Why don't you just launch it and tell us, you know, you can tell us anything from you know what it was like she likes, probably you've been to the Supreme Court before, I never have. But tell us anything you want to tell us about that day?

Richard Sander 1:13
Well, this is the fourth time I've been to the Supreme Court. The first time was when I was 14. And my mom and I were visiting my dad, who was doing some work in Washington, DC. And we were sightseers. And we wandered around the Capitol grounds one day and thought, hey, let's go into the Supreme Court building. We just wandered in, and the court was in session. And we walked into the main chamber, sat down on the second row and listened for a while, and then left. And it's not that way at all anymore. The chambers are always packed, there's always keen competition to get seats. I was very lucky to get a seat from this hearing, even though I have a few connections and, you know, security around the Supreme Court, of course, is very high. And so it's a very different environment now than it was back in the 1970s.

The other thing that's changed from the last few times I was there is that there's a much more relaxed format. So traditionally, the court would allow one hour of argument for a case. And the two parties would be there, sometimes the Solicitor General would be there. And they'd each have a designated amount of time. And when the chief said go, they would launch into their presentation. And usually, sometime in the third or fourth sentence, it would be cut off by the Justice asking questions. And that would be free for all. And everyone would be trying to get a word in edgewise. And that would basically go on until the 20 minutes for that speaker were over.

So they changed the system, apparently during COVID. And they kept the more relaxed format. So the way that it worked on a Monday is, first of all, there were two cases. So they knew they were going to spend more time on each case. Each of the parties had an uninterrupted opening statement. I’d never heard an uninterrupted opening statement from the court before. But these only went for maybe three minutes each. And then the justices asked questions, and that was pretty, I'd say calm and respectful. And no one seemed in a hurry to cut the lawyers off. And then when the justices sort of had been going on for a half hour or so, then the chief turned to each one in order of seniority and asked them if they had any final questions.

So the whole thing was much more civilized. And decorous, then are the traditional Supreme Court. And I liked it. I mean, it meant that the overall oral argument ended up running five hours. So, you know, strong bladders become an important prerequisite to attend the court hearing. But it felt much more as though people were allowed to complete thoughts and that there was a real kind of discussion going on rather than a sort of quick story.

Steve Hsu 4:04
I listened to the whole five hours off and on and I agree with you that it was very polite and fairly well organized.

Richard Sander 4:11
Yep. Yeah. Now, the disappointing part for my friends, the experts and me was the degree to which the discussion was focused a lot on what I would call stereotypes about affirmative action and sort of the simplistic arguments. To me, what's exciting about already given see cases is that there's a much deeper factual record than has ever been the case in earlier decisions. And I had a little to do with that. I was sold by Edward Blum when he was thinking of filing new challenges back around 2013. And I said, you know, the problem with Fisher, which he also works orchestrated, is that you have these principles being tested but the factual record is very thin. Why not pick a couple of universities and then sort of focus on really digging into how admissions actually works.

And he did that and, you know, Peter Arcidiacono and own Richard Kahlenberg, the two experts were extremely qualified to dig into those facts and produce excellent reports. The universities hired experts to which, you know, their reports varied in quality. But in general, there was a very rich, factual record. So you could talk, for example, about just how hard preferences are. And you could talk about what exactly the trade-offs were in using race-neutral alternatives. And there was very little discussion about the size of preferences. When Justice Jackson said, well, you know, his race, just one of the 40 things that are considered as diversity factors, not even the lawyers came back and said, well, you know, if you compare geography, say, with race, it's given about 1%, the weight that race is. You know, there could have been a discussion at that level, and there wasn't.

Steve Hsu 6:13
You know, I think for data nerds like you and me that I totally agree with you. I felt the command of the statistical details of the people on the bench, at least in there, what they expressed, you know, was not impressive. [Seth P.] Waxman said a bunch of things. And maybe some other people said things like, as you just mentioned, that were a bit misleading. But then I was very reassured when Justice Roberts basically just blurted out, well, if you're an Asian kid, you know, you don't want to reveal that you're an Asian kid because then you'll be discriminated against. Because, he sort of, it's possible that some of the justices had digested the statistical information, but they just didn't dwell on it in the hearing.

Richard Sander 6:52
Yeah, that's true. And I think their strategy is to steer away from too much of the facts because that allows them to sidestep the district courts fully. So in both UNC and Harvard, you have very long decisions by district court judges that basically just kind of embraced the university's factual findings and then either ignored or discounted the factual findings of the SFFA experts. And that puts the court in the position of either having to say, well, the lower courts are clearly erroneous. So we're just going to use our own factual erode inspection, the factual record, or else they need to base our arguments on kind of more general ideas. And so they were going that strategy, that latter strategy, quite a bit. I think that's why they kept going, for example, back to this idea of what's the time of it. And what exactly is the goal that you will know, and you'll understand when you reach it. You know, those were sort of simple-minded but easily grasped and universal ideas that didn't require any engagement with the factual record.

Steve Hsu 8:12
Yeah, I mean, I, you know, some people were complaining that, you know, Asians were not really ever really the focus of the discussion. And they, they sort of focused on these more general issues. And it sounds like you think maybe that was part of their strategy.

Richard Sander 8:29
Yeah, yeah. Yeah. You know, a few very few important things did come up. There was a good discussion about the personal ratings. And asking Harvard is really to explain why Asians got such low scores on the personal ratings. And that was, you know, that they asked, average, true to that question about four times. And he made sure that he never answered it. And they talked about the SCS alternatives with some specifications. And so Richard Kallenberg, I think, was less displeased than Peter city. Oquendo, about the degree to which the courts made some use of their research.

Steve Hsu 9:10
Yeah, regarding Arcidiacono, I thought one of the strongest things in the district-level argument of SFFA was that when you looked only at unhooked applicants, so applicants with hooks are only 5% of the applicant pool. And those are the only thieves right? Yes. So that Well, I think there's so I think I could be wrong about this, you should correct me but my understanding is hooks include things like being an athlete, the person of interest on the Dean's list, you know, perhaps because your parents are potential big donors being a legacy, and 95% of the applicants don't fit in any of those categories. The 5% that are in those categories account for a third of the freshman class.

Richard Sander 10:01
That’s a little misleading because they're much stronger than the average applicant.

Steve Hsu 10:05
Yes. Yeah. I mean that yes, that it. I don't mean to make any conclusion about that. But a third of the admits or roughly a third or 30% of the admits come from that 5%. But then 95% are really that is the aspirations of the average American kid who excels in high school and doesn't have any real hooks but is just trying to get in as a good student, or someone who did great extracurriculars or student leadership, but doesn't have any special connection to Harvard and is not super rich. And those guys only end up being two thirds of the class.

And I thought one of the striking things was that Peter Arcidiacono broke out of that group, the unhooked kids, but they're 95% of the applicant pool. And there, he found very strong as for discrimination against Asian Americans. And he challenged I believe in the exchange he had with the Harvard expert, David Card, he challenged David to, you know, refute that finding, because obviously, the 5% are very special, weird cases. Right? Those are very, you know, very, very, you know, special in different kids. Like someone who's going to be on the football team, or somebody whose parents are major donors.

So you know, just talking about average American kids, you know, who have no special connection to Harvard and are not recruited athletes. We should be able to look at them separately, and Peter did.

Card refused to break out that analysis and address Arcidiacono’s point. And the SFFA lawyers made a special point in their brief that we don't care if we just set aside the 5%. If you're discriminating within the 95% pool against Asians, that's it. That's still bad enough. And that was never addressed at the district level, I thought, and I was very disappointed that the district judge never really even addressed that point in her opinion.

Richard Sander 11:59
That's right. And it's almost I think, if the SFFA had its do over again, they would probably do a less sophisticated analysis, just because it would be harder to ignore. In other words, they excluded the ALDCs, for most of the analysis, to really sort of try to be as intellectually honest as they could be. But then they found Harvard continually saying, Well, you know, that it would look different if you included the ALDCs. And it's true it would look somewhat different. But all of the basic glutens would hold up. It's just that the magnitudes change, when you do or do not include those folks. And for many of the questions in the case, it's more relevant to look at the non LDCs.

So Harvard sort of turned his analytic weakness into a rhetorical advantage in a lot of ways. And it made it easier for the court, which I don't think ever really understood most of the expert analysis, to just sort of take the path of least resistance.

Steve Hsu 13:04
Yeah, I mean, at the district level, I think her name was Judge [Allison] Burroughs, she more or less just parroted the Harvard side of things. as far as any statistical issues went.

Richard Sander 13:14
It was amazing. And you know, so one of the striking things is Steve, since Peter [Arcidiacono] has gone on to write and get published in peer-reviewed journals, or articles, based on his expert reports. David Card has published zero articles based on his research. And it's because, you know, his findings would not stand up to peer review examination.

Steve Hsu 13:40
Well, I think that's very plausible. I'm not surprised by what you just said, because it seemed to me that Arcidiacono was just doing a very straightforward defensible analysis. And the conclusions were quite clear.

Richard Sander 13:52
You know, let me give you one example, that that actually, was one of the few citizens' good legs that came up with the oral argument. So David Card created a graph that's in his report, it's a very prominent graph. And it shows what the pseudo R squared is if you do a logistic analysis predicting admission at Harvard controlling for one single factor. So he's got one regression that uses the academic index as a control along with race. No, no, I'm sorry. He just has an academic index that he has one that just has legacy, and one that just has athletes. [And] so on. Personal rating.

So the last bar is predicting admission just controlling for race. And that bar is very, very small, and pseudo R squared is less than 1%. And Card claimed, and the court seemed to buy the argument on Monday, that this was proof of how unimportant race was in admissions. That you got this tiny, tiny little r squared. But what that actually shows if you think about It is that Harvard it's it's, it's the most dramatic proof you could come up with of racial balancing at Harvard. Because what it means is Harvard strives to admit 6% of every racial group of applicants, 6% of the blacks, 6% Asian Americans, little less than 6% of Asian American, so and so forth. So if you admit 6% of every group, and then you run a regression and races, your only control, race, will drop out of the equation. Right? Do you see that? And so the only way that you can get such a small number, especially when you admit you're using racial preferences, is if you're using race in a way to get the exact proportionality with the outcome.

Steve Hsu 15:48
Yeah, I felt Card’s. Well, maybe I don't want to get it. Or maybe my audience would like it if we got into the, you know, the weeds of the expert opinions. Yeah, it felt to me like Card was very deceptive throughout. And Arcidiacono, on the other hand, was just being very straightforward in the way he did his analysis.

Richard Sander 16:07
Yeah. But the example I gave him is just such a nice example of where you're doing something that looks kind of clever. And you're actually proving your opponent's point beautifully. And nobody in the room gets it.

Steve Hsu 16:24
This is the problem, though, is that, you know, the judges are not themselves experts. And I was very afraid. Well, I didn't know what, you know, as I started listening in on Monday, I didn't know whether we were going to end up being treated to an argument about the actual evidence, statistical evidence between Supreme Court justices. But what seems to be the case is that they came to whatever conclusions they, you know, we're going to come to already well before they actually had the oral arguments. And so I doubt any of the justices had their minds changed by the particular statistical facts that were thrown out on Monday.

Richard Sander 17:01
Right, most of what they are doing is trying out rhetorical pieces that they can use in their opinions. So they're, they're trying out saying, okay, well, if, if I use, you know, Justice [Neil] Gorsuch, tried out his title six argument a few times. And I can tell you more about that, if you're interested in, you know, he basically trotted out a title six argument with most of the key lawyers, just to see what the reaction was. And Justice [John] Roberts tried out his argument about, you know, can you really define what, who's black. And [Justice Samuel] Alito, braid on his argument of, you know, how do you define diversity? How do you know when you've succeeded? And these are all clearly points that are going to be in their opinions?

Steve Hsu 17:54
Do you feel like you can tell from the I don't know, the body language are the fields or something of what happened Monday? And what is going to happen?

Richard Sander 18:07
To a certain degree, you know, going in the only people whose votes were very clear, I think, I think it's always been clear that Jackson and Sotomayor and Kagan are gonna vote to uphold Harvard and UNC. But the only conservatives who, who I think we're crystal clear, based on prior records were Thomas and Alito. Roberts, there was some uncertainty because he's clearly in many cases striving to be kind of a voice of moderation. And then the other three conservatives were not on the court last time affirmative action came up. So I don't think anyone really knew for sure how they were going to come down on this issue. And even on Monday, for the first four hours, Justice [Amy Coney] Barrett was seeming to be going out of her way not to tip her hand. She was asking questions that were very, you know, very even-handed. And then it seemed like, towards the end, she just got ticked off and started asking more pointed questions that made it pretty clear that she's not happy with the preferences [unclear].

Steve Hsu 19:19
Do you think it was Waxman that tickled her off? Or can you pinpoint what ticked her off?

Richard Sander 19:25
I don't know. I may have just been sort of cumulative. It's hard to hold yourself in for five hours I imagine. But I felt by the end that all six conservatives made pretty clear that they were going to rule against the universities. Now that said, there are three different ways that could go . They could just say under our existing precedents, Harvard and UNC have not complied. So we're finding that they've discriminated under Grutter. That's what by the end of the arguments, this is what the Solicitor General had decided. Yeah, I've got six votes. Six votes against universities, and she started pitching towards the end of the hearing, that approach. Yeah, at the beginning, she was saying, let's rule in favor of the universities. By the end she was saying, well, justices I think you're going to rule against the universities, but do it narrowly. Yes, that was a very clear evolution. And the Solicitor General, by the way, was super impressive. Very smart. Very, very articulate.

Steve Hsu 20:26
Yeah, I want to say that, as an advocate, I was extremely impressed by her as a scientist, I was completely unimpressed with her. She kept using the military as an example. And I wonder if she knows that for enlisted, for people who volunteer for the military in the enlisted ranks, they're subjected to a very strict psychometric test. There is no affirmative action. And there's a wildly disparate impact to the point where I think over 50% of African Americans are below the threshold of what's required in order to join the US military. So the US military is actually the worst example she could quote. But she kept trotting it out as an example of why what Harvard is doing is correct.

Richard Sander 21:15
Well, you know, the reason for that, is that in 2003, the the behind the scenes story, is that is that O'Connor changed her vote, to support University of Michigan, because of the briefs submitted by the military, and various people have have cited the service academies as source are the best arguments that the Liberals can make that that is likely to be effective with conservatives. And I think the argument is that, sure, at the enlisted level, it's very meritocratic, but the enlisted men are still disproportionately URMs (underrepresented minorities) or, you know, they 25 to 30% URMs in the military, and if if at the service category level, we have no preferences, then it might only be 10%, URMs. I mean, under the service academies, that will create a disparity between the leadership and the enlisted men. That would cause morale problems. I think that's the way they're trying to push the argument.

Steve Hsu 22:20
Yeah, I think that argument on its own is okay, actually. But I think she ignored the elephant in the room, which is that the military refuses to deviate because the bulk of its recruitment refuses to deviate from a meritocracy. And there are good reasons and very sound studies. Well, for wildly, honestly,

Richard Sander 22:37
at the lowest level of those two, I think at the officer corps, they are pretty aggressive for original purposes.

Steve Hsu 22:44
Oh, yes, that's certainly true. But you know, this is maybe a slight digression. But, you know, in the past, I think they could depend to some extent on, you know, the difficulty of the curriculum at the service academies, or the rigor of universities that have ROTC programs that, you know, whoever got through those were pretty competent by the end.

And you know, that situation is changing over time, as you know, for I don't know, if we talked about this last time, we were having a conversation, but almost all universities now have removed Algebra II as a requirement for graduation. So even if your math scores are so low, it looks like you should take some remedial algebra classes in universities, which used to be the case now they've eliminated that, because they found that to be a big bottleneck for progression of affirmative action candidates on campus. Yeah, so everything is, you know, all the rigor has been removed now.

Richard Sander 23:40
Very discouraging. But you know, just to linger a moment on the military example, I think preferences are likely to work much better in, say, a service academy than out of college, because the whole thrust of the service academies is total immersion in a new culture. You can't very easily opt out of the typical courses in the service academies. Right. It's a 16-hour a day experience, so it seems to me that you're much more likely to actually develop a sort of latent talent and someone who may have had a crummy K-12 education in a service academy, because it's such a thoroughgoing experience and kind of education at all levels. So I wouldn't be surprised if service academies actually have an impressive record of taking people with lower scores and having them sort of outperform their credentials.

Steve Hsu 24:45
Yeah, I agree with that. And as I recall, there's even a one year program for, for example, enlisted men that they want to, you know, they want to prepare for the academy, or sometimes athletes that they want to prepare for the academy. They have these one-year programs that try to catch them up academically so that they can, they can hack into the actual service academy. And I think all those things are great. Those are the kinds of models that we should have. If we have action at UCLA, we should invest the resources to help those kids that we admit with lower scores to really get ready before their freshman year so they can compete on an even terms.

Richard Sander 25:23
Yeah, so that ties into when I want to talk about where justice might come out. So. So if they really get to the universities, they can either have this narrow ruling I've talked about before, or at the other extreme, they could say Grutter was wrongly decided. The 14th Amendment prohibits consideration of race. We're getting rid of all this stuff.

The middle way would be to say that what the universities are doing violates Title 6 of the Civil Rights Act of 1964 and therefore it's illegal. But we don't need to reach the constitutional issue, so we won’t. That would leave the field open for Congress to draft compromises in the area of racial preferences, though, they could decide that they could, they could pass an amendment to Title 6 that said, we're going to allow the service academies to continue to consider race, if they, you know, meet the following three conditions. Or we'll allow your universities to consider race, if they can show the racial preferences are small, B, they're completely transparent. D, they have bootcamp or students whose scores are more than 100 points. Lithium, something with that? I think that would be an exciting approach. You know, it would it would put affirmative action, like abortion, back into sort of the Democratic marketplace.

Steve Hsu 26:56
You know, Rick, I agree with you. I think in some way, I mean, obviously, this is taking an optimistic view of that, of that possibility, that, yeah, we potentially spur some real innovation in trying to solve these problems, whereas some people, some conservatives might really like the option one. But that might not actually lead society to actually, you know, progress. It could even lead them to the universities just maybe doing what you see the University of California, which is just disobeying the state law with impunity, and just try to get away with things maybe by eliminating test scores and things like that.

Richard Sander 27:34
Well, there's a very good analogy here, which is Brown versus Board of Education. So Brown, you know, gets all the publicity for attacking segregation, public schools. But Brown had much, much less effect on what was going on in the south. Then the Civil Rights Act of 1964 did. It was only once Congress passed the wall and got the Department of Education and the Justice Department involved as active participants, that segregation happened in the Deep South. Brown affected a few cities, and maybe the border states, Tennessee and things like that, Kansas, but Alabama and Mississippi didn't start to segregate until the 64 Act. So I think the analogies are very relevant. I think if you have a 14th amendment decision here, you will see massive resistance by the universities, you'll see them be hitting basically the way Alabama and Mississippi behaved after Brown.

Steve Hsu 28:39
Or the way the University of California behaves after Prop 209.

Richard Sander 28:43
Yeah, no, that's more complex. Right. I mean, University of California, that much of it didn't comply in good faith for a second. And then, as the administrator saw that the components of the university that disobeyed did not get sued, the argument against disobeying became harder and harder to sustain.

Steve Hsu 29:10
Yes. You know, I went, we're a little bit like justice is here, where we're talking about the broader impacts of this whole thing. Of course, I'm concerned about these poor Asian American students. So you know, under these different possibilities, I'm also concerned about whether they're going to start getting in, at what point they'll start getting a fair shake in admissions. And so that's a whole separate thing.

Richard Sander 29:34
Yep. Yeah. Well, you know, I talked to the SFFA attorney Monday evening, and I went to a dinner that Edward Blum hosted while I was in Washington, and they reminded me that these cases were bifurcated. All the proceeds up to now have been about whether there's a violation if there's a whole phase two on remedies. Oh, this is going to go on for a while. But you know, after a Fisher one was decided It was very striking to Richard Collenberg and me how rapidly the universities, you know, sort of shifted towards wanting to have a serious conversation about race neutral truths. And in 2013, 2014, there were a lot of great discussions among university presidents and a lot of progress towards implementing some risk neutral stuff and paying more attention to socioeconomic status. And then when Fisher II came out, it was like, oh, okay, we don't have to worry about that stuff anymore. So, you know, if there was a ruling based on title six, in June, I think one of the university presidents would try to organize serious national discussions about race neutrality.

Steve Hsu 30:45
Yeah, I thought it was quite bold of the SFFA attorney to, you know, really highlight one of their proposals which one of their models in which actually, for example, all legacy preferences dropped. I somehow can't believe Harvard will completely drop that. I mean, the money, the amount of money involved, is so huge.

Richard Sander 31:06
But who knows? Well, you know, Goldenberg has done some research on that. And there's not very strong evidence that the legacy preferences drive contributions that much.

Steve Hsu 31:23
Yeah, I should correct what I said. I didn't say what I really meant. Yes, I didn't mean legacy so much, is just them being able to classify you as on the Dean's interest list, because your father could donate $100 million to the library.

Richard Sander 31:36
Well, they'll keep doing that no one will figure out how to stop them from doing that. But I'll tell you, I'll tell you another interesting story. So there's a guy, I guess he’s at George Washington, named Alan Morrison. Have you ever heard of Alan Morrison?

Steve Hsu 31:51
No, I'm not familiar with him.

Richard Sander 31:52
He's not. He's not some sort of nationally recognizable name. But he was a close colleague of Ralph Nader and helped organize Public Citizen back in, you know, the late 60s, early 70s. And he's still around. And he's a professor, George Washington. And, you know, obviously, he's very well known as a liberal. And, he got in touch with [Richard] Khalenberg and other mutual friends, and said, you know, I would really like to write something about the abuse of legacy admissions, as a brief in the Harvard case. And he ended up asking my help trying to find an organization, on whose behalf he could write this brief. And I struck out. And finally, I said, well how about my wife? Morrison wrote this brief, it's taking legacy admissions. And it was submitted in my wife's name, which was not implausible. I mean, she's a Caltech administrator. She's, you know, as you know, kind of a well known astrophysicist, but still, not someone who has been a volunteer for him to actually innovate. And that brief ended up sort of being the one that was most talked about on Monday. Because, as you know, multiple justices sort of said, well, what about the argument that Harvard is by definition, not meeting our narrow tailor because they're still using legacies, which have a disparate racial impact? And you follow the argument?

Steve Hsu 33:21
Yes. I didn't I didn't catch the connection, though. To be apna.

Richard Sander 33:26
Yeah, yeah. Well, yeah. So she's, she's the name on that brief. It was on my own watching on behalf of EULA Harrison, who read it and signed it. That's great. What a great story. Yeah. And it was, you know, I mean, the amicus briefs in general did not seem to figure much in that discussion on Monday, even though they were one of them. And interestingly, you know, over the years, there's been a steady shift. In the makeup of these and in Gruder briefs on behalf of the University on the number of briefs on behalf of the plaintiffs by four to one in Harvard, and UNC it was three to two. And that's pretty significant, because an awful lot of the pro University briefs were just kind of these institutional, institutionally generated briefs. You know, we knew, we knew that the Association of Universities was going to submit a brief on behalf of Harvard. So that three to two ratio is really the token I think, an unseen intellectual shift and a change of the debate in America. And you've got people like Alan Morrison, arguing against Harvard. And that's one reason why it's going to be easier for the justices to strike preferences down.

Steve Hsu 34:41
You know, I think almost as bad as the misrepresentation of the statistical facts around affirmative action, like the size of preference granted and things like this. It's usually misrepresented when you read an article about it. As large seems to be the way the polling around action is this cuz because if I read in the New York Times I read 70% of Americans and 70% of Asian Americans are in favor of Harvard's position. But then, you know, if I look in some other place, I'll see numbers. Exactly the opposite.

Richard Sander 35:14
Yeah, right. Right. Yeah. And it's because I'm, you know why that is? Right. The

Steve Hsu 35:20
I think the way they phrase the question makes a big difference.

Richard Sander 35:23
Yeah. If you ask about affirmative action, most people support it. If you ask about racial preferences, most people oppose it. Yep. And, you know, something that's often lost in these discussions, is that the justices clearly will not strike out affirmative action. Whatever they do, will, will only affect racial preferences, though, that programs that take account of race are clearly not going to be affected by this and efforts to try to increase the pipeline to improve educational opportunities for people going to dispatch high schools, that's going to be affected by by this, really, so that the accurate question to ask is how you feel about racial preferences? Right.

Steve Hsu 36:05
Yeah, and there? I think the polling agrees with what you said, which is that there probably has been some shift in or at least, at least, we know that most Americans don't like racial preferences. Yeah,

Richard Sander 36:17
the public, you know, the public numbers have been pretty steadily around 70 to 75%, against racial preferences. What I think I think the more significant changes among the public intellectuals,

Steve Hsu 36:30
it's interesting that you say that I don't disagree with it, it could very well be true. I think it's true. But if I define a narrower set of people, like people in academia, not public intellectuals, but people in academia, I feel like anyone who even says their post affirmative action is, you know, ready, it could be canceled right away, on most scales. So they're out you're,

Richard Sander 36:54
Yeah, you're right. You're right. That's absolutely true. But that, but that is part of what's fueling the public intellectual concern about this, right? I mean, I get it in my own interactions, I just line. Journalists, for example, are much more willing to engage doubts about racial preference programs now than they were 15 years ago. Yes. It's like it has sunk in that there are some really significant problems with these programs. Yes. I, one of them is intellectual, you know, is that it sort of fuels this robot of action that is pretty closely intertwined with the suppression of academic freedom. Yes, absolutely.

Steve Hsu 37:39
I mean, in a narrow sense, if you do research on it, you're only allowed to come to a conclusion. That's definitely an abrogation of intellectual freedom. But then also, the people who benefit from affirmative action, tend to I think, for self protective, psychological purposes, have to defend it the rest of their lives, like sort of my own. So I think that's not good either.

Richard Sander 38:02
Yeah, well, what's happened, what I observe is that the growth of critical race studies, for example, has led to an increasing utilization of the flight academics, on topics that are kind of intertwined with DRS, one way or another. And, increasingly, their position to number one, we must talk about race, because race is very important. And number two, when we talk about race, the only way you can discuss it is through a CRS lens. And the combination of those things is really poisonous. And so a lot of people I think, maybe not consciously had, but they sort of sense that this whole culture of preferences is building, feeding into this categorization of the economic culture. I absolutely agree

Steve Hsu 38:52
with your conclusion. And I admire your optimism. That there's some sort of generalized change in sentiment on this point on campus. I'm not sure about it all. But I hope

Richard Sander 39:04
you're right. Oh, well, you know, you've heard of this. Maybe you're coming to this economic freedom conference at Stanford.

Steve Hsu 39:11
Ah, yeah. Someone just invited me. Well, I don't know if I will be attending, but somebody just made me aware of it. Yeah.

Richard Sander 39:17
Yeah. You know, that seems to be, to some extent, an unprecedented event. They're getting a lot of big names together to sort of voice concern with suppression of, of free thought on campuses. And, you know, so that's a tangible manifestation. And the growth of the Heterodox Academy is a tangible manifestation.

Steve Hsu 39:39
I think all those things are positive but the way I would describe it is that you know, there's a war between two sides. Our side got routed and driven off the field and now some small guerrilla resistance groups are formed. That's, that's how it appears to me they are forming groups but in a worthy When's it in the forest?

Richard Sander 40:01
Yeah, no, no, there you go.

Steve Hsu 40:04
You know, I cut you off for I sort of digressed. I think you suggested three possible outcomes if the Conservatives prevail on the court, and I only let you get through to and I think there was a third one I didn't let you Well,

Richard Sander 40:17
I pretty much covered them. I mean, what it is, is to find the universities to violate a gritter that would leave the whole framework in place, it would just say you guys did not narrowly tailor Yep, option two is break down Grutter under the 14th amendments, and option three is limit Grutter. I say that title six, is very clear in Ohio racial preferences. We're not going to say in this decision that it's unconstitutional deeds, racial preferences, but we are going to say that it violates Title six, and therefore conduct would need to act before the sorts of things that Harvard and UNC are doing is permissible.

Steve Hsu 40:54
Do you have any probability distribution in your head over those three outcomes?

Richard Sander 40:59
I think the 14th Amendment route is the most likely followed by tunnel six followed by really within Gruder.

Steve Hsu 41:07
I see. So you think the outcomes are biased toward the more dramatic?

Richard Sander 41:11
Yeah, because what I was hearing Monday was a lot of rhetorical preparation for taking the 14th Amendment route, and basically saying, you know, I think what what Roberts was suggesting was, we don't really have to overrule gritter, we can simply point out that Gruder itself, that all of our past decisions on affirmative action, have implicitly had some time of it, and have said, rolling out it's hard this if universities get their act together and phase out racial preferences. And we're seeing no sign that that's happening. That we're just saying the time limit is over. So that would be a you know, that'd be kind of a clever strategy. You wouldn't be ruling Gregory, you'd be you'd be sort of confirming the logic of Gruner.

Steve Hsu 42:08
I also sense that in the questions that they asked for me personally, that seems like a strange way to do it. But yeah, I can understand that. It seemed like they were laying the groundwork for that.

Richard Sander 42:18
No. Yeah. I mean, it's hard to tell. But but and, you know, predicting Supreme Court opinions is really hazardous. And I've screwed it up before. So yeah, I think it's unpredictable what they'll do. But but but you could certainly see the justices trying out ideas that would let them go in that direction.

Steve Hsu 42:37
Is there evidence that maybe from their own comments that they do really, quote, try out their arguments there in that setting? Sometimes it just seems like it's a stream of consciousness. It's almost like some grad students in a coffee room just discussing, and they never, like whatever pops in their head, they ask a question or something. But I don't I'm not very familiar with the court. So I don't know if that's accurate or not?

Richard Sander 43:00
Well, I'm, you know, I don't consider myself a common law expert, by any means. I've kind of gotten into court watching mostly through the affirmative action lens. So there, there are people who would have much more enforcement against the idea about this. But nonetheless, I get my opinion, which is that I did have a very clear sense that each justice came in with two or three ideas that they wanted to explore. And they mostly tried to engage in a collective discussion. But they want to make sure that they have ideas they want to free up.

Steve Hsu 43:33
Yeah, I think that's fair. There was certainly some consistency in what each justice was saying.

Richard Sander 43:38
Yeah. Yep. Yeah. Cavanaugh clearly wanted to explore this issue of how schools treat religion, and maybe in to be hitting a sort of issue with the under representation of evangelical Christians. And, of course, it's clearly wanting to try out his title, six arguments, and so on and so forth.

Steve Hsu 44:00
Can you reveal what was said at the dinner organized by Ed blue?

Richard Sander 44:06
Oh, nothing. Nothing. It was mostly obituary. I mean, I think they were feeling pretty optimistic. But I was at a similar dinner after Fisher. There were arguments. And they were really more optimistic than men have proved to be justified. Yes. So yeah, [unclear] was kind of predictable, and not necessarily revealing.

Steve Hsu 44:28
Seems to me they have more reason to be optimistic. This time then with Fisher, but obviously, you can't, can't be certain of anything.

Richard Sander 44:37
Yeah, they do. I mean, there are six conservative votes. Now, you know, and remember that Jackson has recused from the Harvard case, though there are only two clear votes for Harvard.

Steve Hsu 44:47
That's very bad for Harvard. That gets you covered really? travailing in this one.

Richard Sander 44:52
Yeah, well, right. And the tone was much different. The tone on Monday was much more aggressive again. terminated against USC. I mean, you know, even the Solicitor General was not willing to defend discrimination against Asian Americans. Yes.

Steve Hsu 45:13
The funny thing about Burroughs opinion, you know, at the district level was she sort of at first said, Well, you know, I trust these statistical arguments that there was no discrimination. But then later in her opinion, she said, Of course, it's okay for them to do it in the interest of diversity. So I didn't hear a lot of that in the courtroom. And

Richard Sander 45:34
no, I mean, you know, bros arguments were just, you know, really goofy and very ideological. And I did like that, you know, Kagan, for example, I thought was distancing herself from the district court? You know, I really I obligating the want to be in the position of heavily defending with district court didn't,

Steve Hsu 45:55
I didn't think Waxman helped himself by constantly saying, look, the district court found there's absolutely no evidence.

Richard Sander 46:04
You know, I don't think he helped himself by saying that because, yeah, but that's what that's, you know, that's, that's, that's sort of their best argument. I was in a debate with Erwin, Erwin Chemerinsky, last fall about the cases. And Erwin's very self confident pronouncement, he's always very self confident, was, of course, the Supreme Court can't can't even take these cases, because, you know, they were forced to have very comprehensive findings of fact, and so those facts are established.

Steve Hsu 46:36
So I wasn't, I didn't quite understand not knowing much about the law, I didn't quite understand how that works. So if I didn't know whether the Supreme Court would be bound by the findings of fact, at the lower court level, and if they disagreed with findings of fact, they should actually explore them, you know, in their own seedings. I didn't know how that works.

Richard Sander 46:57
Well, it's interesting. So in our system, we generally defer to juries, or in the case of bench trials, judges, to make factual findings. Those are the fact finders and in the and then the judges in the jury trial or the appellate judges in a bench trial are the are the folks evaluated with the law is, though, the lower the lower court findings, the facts are binding, unless the higher court determines that they're put a quote, clearly erroneous? Which is not supposed to be a trivial standard? Right? There is supposed to be deference, that the difference here, though, is that the reason for that rule is that it's a jury, the classic function of a jury is to hear people on the witness stand and decide who's lying and who's telling the truth. And that's something that, you know, as we know, from zoom calls, much easier to a person. Right, though, so that's a sensible division of, of labor. But in a case like this, where, you know, the credibility of witnesses really is relevant. And what matters is the data in the trial record. There should be much less deference to the lower court's findings of fire.

Steve Hsu 48:14
I see

Richard Sander 48:16
that though. So the Supreme Court could and, you know, does have a lot of discretion to pull out their version of the facts. What was striking to me on Monday was was the degree to which they were sort of steering clear that that that kind of goes to my first point that, you know, that there wasn't that much discussion that that on Monday, and I think, you know, I think there's a little bit of reluctance to sort of say, well, I guess the district court said that, but, but they obviously didn't understand what our city October's arguing. So it'll be interesting to see if they get into that sort of groan when they're writing their opinions.

Steve Hsu 48:51
Yeah, I felt for Professor Arcidiacono, because I felt he could have been accorded some. What's the right word? Not the retribution. Some Gosh, I'm blanking on the word. But he could have, you know, if the justices had expressed explicitly that they found his analysis convincing, and the other analysis, not convinced, yeah. That would have been, they probably would have made his day.

Richard Sander 49:14
Yeah, it would have been nice for at least one of them to make that point. And there were so many different places where they could have made that point.

Steve Hsu 49:24
Yeah. And I think Roberts kind of did, but in a in a very, like, indirect way, but admit, it made very clear that he had come to his own conclusion about what

Richard Sander 49:32
was going on. Yeah, that's true.

Steve Hsu 49:37
Then I hope we're hoping their opinions do if they do, they do get into the Yes. The word I was searching for was vindication. So I think Professor Arcidiacono now may still get his vindication when the final opinion of the majority has been written.

Richard Sander 49:50
Yeah, yeah, they'll feel much more secure when they're drafting lenses. And they'd have, I'm sure that they, among the justices, have several civil clerks who are getting curious This. And so they feel much more comfortable doing it in that context.

Steve Hsu 50:04
Yeah, given after listening to the oral arguments, my model. My hypothesis is that among some of the trusted clerks for the conservative side, there are people who have looked at the empirics and are confident and are advising their seniors. That, you know, indeed, our CDR can or should prevail. That's what I think is going on.

Richard Sander 50:28
Now, I hope so. Yeah, I hope so.

Steve Hsu 50:31
Well, great. Well, we're nearing an hour. Is there anything that you want to add about the experience, you can deviate from the trial itself? You could talk about anything you want?

Richard Sander 50:40
Well, it was great fun. I've never been, you know, as I say, I've been there three times before. But I've been sufficiently immersed in, in these cases, that I sort of knew the context of every question that came up. And we know what the possible answers were. And that was a lot of fun. I mean, just to, you know, it may be in the room, you know, especially delightful, because it sort of melts to some extent with the other parties in the room. What's striking is, you know, how small of the live audience is, there are, you know, the room holds maybe 150 people. And there are a lot of seats for the lawyers, and the parties and the immediate family, the journalists like that. So there were maybe 20 of us, who had, who sort of have reserved seats as members of the general public. And I ejected only five people from the enormous line that was waiting to get in for the available public seats. So that's a shame it's away, but it does make the experience if you're in the room, very intimate.

Steve Hsu 51:46
Were there actual plaintiffs in attendance?

Richard Sander 51:49
Edward Blum was there, he was sitting in the room in front of me.

Steve Hsu 51:51
But is he really the plaintiff? I thought it had to be some Asian kid who's the actual plaintiff?

Richard Sander 51:55
Yeah. Well, they are still anonymous, as far as I know. I see. There were a number of Asian Americans in the room. There were some influential Asian American civil rights leaders in the room, but I don't know if I don't know if it will. So for me when, when members were there,

Steve Hsu 52:09
interesting. Well, you know, Rick, in the last time we spoke, you said that your mismatched paper that, you know, has been widely read. And I think you even said, and this was no boast, I think you were just stating the fact that you've never met a Law School professor who was unfamiliar with the paper. And I bet the Supremes are also familiar with your paper?

Richard Sander 52:34
I'm not sure. I mean, Roberts, certainly Roberts and Alito. Certainly are and Thomas. Yeah, those three definitely, I don't know if any of the others are mismatched was definitely not a topic on Monday, it SFA consciously decided pretty early in their strategy that they were not going to, they were not going to seek data on outcomes. They were just going to focus on the admissions process. And the whole discussion of mismatch, you know, in a way in the court was perhaps irrevocably affected by Justice Scalia's comments in 2015, at Fisher to just a few weeks before he died. He described mismatch in like, the least sensitive way imaginable. Yes, I remember that. That was very unfortunate. And then the New York Times roasted him and, and for a while, this match just became like almost a taboo topic. And I think, you know, both the parties and the conservatives on the court, don't want to go down that road, they don't want to write this in a way that appears to stigmatize black achievement. But there is a new wave of mismatched research coming up. And I think there's gonna be some discussion of it in January through March.

Steve Hsu 53:45
The most disturbing mismatch arena, right now, for me is the training of doctors. Yeah. So they've now eliminated a lot of the standards for, you know, specialization, et cetera. So that that's an arena where it's really very dangerous to have, you know, under trained people, and then and the way that you would study mismatch, there would be pretty gruesome because you would look at malpractice suits and, you know, wrongful deaths, things like this that resulted from under trained doctors.

Richard Sander 54:18
Well, you know, someone asked me to look into what was someone who was not a promising meth partisan, that was, Epic's group was organizing a debate with people with academic medicine. And I was in my underwriting article a couple years ago, and I spent some time with you to do it. And there's actually a lot of very powerful evidence of large mismatch effects, similar to what I did with law schools in my original piece. In other words, you can see much higher attrition rates from medical school for minorities because there's a huge racial disparity on medical board exams, the parallels between the disparity and bar exams. D as a reason All of that, you could tell that blacks who enter medical school with these credentials, end up entering a board certified specialty at dramatically lower rates than whites with comparable credentials. So it's a very clear demonstration that, you know, not only is there a danger of letting people in who are ultimately unqualified, but, but more seriously, a lot of the potentially qualified folks are being put in schools that are so elite, that they're learning less, and therefore, becoming less qualified. And if you just look at the aggregate numbers of blacks admitted to medical school versus blacks who are practicing doctors, there's this big gap. So the whole argument which came up repeatedly on Monday, that we had to reserve for reaction so that, you know, the medical field integrated. It's just preposterous, it's, it's, it's quite likely that we're doing the opposite with large references. We're making it less racially diverse than it would be if we got rid of the preferences.

Steve Hsu 55:58
I see. I, you know, it's, I'm glad you clarified that, because what you're saying is that, because of the mismatch effect while they're in medical school, you end up producing less doctors or less specialists than you otherwise would if they had been matched to the right medical school environment. Yeah. And I was sort of stuck on this other thing, which is that if you drop all the standards and just pass people through, yes, you end up with, you know, perhaps dangerously trained doctors.

Richard Sander 56:21
Yep. And that's a concern, too. But there's another phenomenon that is just an awful tragedy, right, that you're, you're taking potential talent and throwing it away?

Steve Hsu 56:30
Yep. Did you come out of that room on Monday, in an optimistic mood for the future of higher education in this country? Well,

Richard Sander 56:39
the court may end up doing the generally right thing, for reasons that I, you know, that I might only half embrace. But I think that, you know, and you probably agree with me that the way that academia has been evolving, there's clearly no internal mechanism for accountability and the newest stuff within academia. And it's, it's, it's one of those, I hope, rare situations where you've got kind of a internal dynamic of corruption that that requires court intervention, though, whether the court does it for neuroradiological rounds, or because they fully get rid of the dysfunctional system, I think that breaking down what Harvard or UNC are doing is, is a big step in the right direction.

Steve Hsu 57:25
I completely agree with you. And you tell my kids are unfortunately just gonna miss the just gonna miss the effects of this in their own college application. So it's not going to help my kids, but I hope it helps some other kids. So they're already in college. I don't want to say too much about my kids in public. But I think that, you know, whenever the impacts of this decision are implemented, it'll be just a bit late for my kids.

Richard Sander 57:54
Yeah. Yeah. Well, you know, I mentioned when I wrote my original law school article back in 2005, that I had a viral biracial son. And happy to report that I don't think that he was ever mismatched. He did pretty well in high school. But he decided not to pay to go to the most elite school he can get into, possibly, possibly, in part with a racial preference. He went to University of Washington, and Washington had recently passed a ban on preferences. And there was really no sign that he received one. And yeah, he was in the top half of his class. Anyway, he just in May become a licensed vendor. Great. Fantastic. He's really happy. And yeah, so society's perception of his race has had no harmful effect on his life.

Steve Hsu 58:48
I think. That's great. Well, that's our

Richard Sander 58:52
I hope for the future. Yeah, exactly.

Steve Hsu 58:56
All right. Rick, I want to thank you for your time, and hopefully, we'll have you back on the podcast again. You might be our first regular guest. Maybe in June.

Richard Sander 59:03
All right, Steve, these conversations are wonderful. So I really, really appreciate you reaching out.

Steve Hsu 59:09
Likewise. Thank you very much.

Creators and Guests

Stephen Hsu
Stephen Hsu
Steve Hsu is Professor of Theoretical Physics and of Computational Mathematics, Science, and Engineering at Michigan State University.
© 2022 Steve Hsu