# Ryan Lecture 2026 ## Метаданные - **Канал:** Georgetown Law - **YouTube:** https://www.youtube.com/watch?v=j4Hq8gmcm7s - **Дата:** 11.03.2026 - **Длительность:** 1:04:26 - **Просмотры:** 147 - **Источник:** https://ekstraktznaniy.ru/video/47761 ## Транскрипт ### Segment 1 (00:00 - 05:00) [] - Hi. Good afternoon, everyone. Welcome to the 2026 Thomas F. Ryan Lecture. I'm Josh Teitelbaum, I'm the interim dean here at the Law Center, and I'm delighted to be welcoming you to this wonderful event. I wanna extend a special welcome to our distinguished guest, Justin Driver, Robert R. Slaughter, professor of law at Yale Law School. We are very excited to have you join us today. I know we're all eagerly anticipating the main event. Before we start, I'd like to take a moment to provide some history about today's lecture and the Thomas F. Ryan lecture series. Thomas F. Ryan was a Georgetown Law graduate for whom this signature event is dedicated. He earned his JD at Georgetown in 1976. His career, though tragically cut short, was marked by dedication, excellence, and promise. At the time of his passing, he served as law clerk to Judge John Lewis Smith, Jr. of the US District Court for the District of Columbia. Thomas Ryan survived by his wife, Christine Coffee Ryan and their two children, Tom and Missy, and were honored and delighted that Christine, Missy, and Missy's daughter, Fiona are able to be here with us today. The Thomas F. Ryan lecture series was established in his memory by Hugh J. Grant, alumnus, and longtime benefactor of Georgetown University. In 1985, the inaugural lecture was delivered by none other than then Senator Joseph R. Biden, Jr. Since then, the Ryan Lecture has become a cornerstone of our academic calendar, bringing together an extraordinary group of leading academics and public servants to share their work and insights on a wide range of important topics. Over the years, we've had the privilege of hosting many remarkable individuals, including just to name a few, Martha Minow, Martha Nussbaum, Lonnie Kliever, George Akerlof, Mary Sarah Bilder, the Honorable Guido Calabresi and in 2024, the Honorable Ann Claire Williams. This lecture is a fitting tribute to Thomas Ryan, who's distinguished education and professional career honored Georgetown Law. Now I'm gonna hand things over to professor and associate dean for research and academic programs. Kevin Arlyck who will introduce today's distinguished speaker. Thank you. - Well thanks, Josh. It's great to be here with all of you. Thank you for coming. And it is distinctly my honor to introduce our distinguished speaker today, Justin Driver, who as Josh mentioned, is the Robert R. Slaughter professor of Yale Law at Yale Law School. Professor Driver is simply put one of the nation's leading constitutional law scholars, particularly on issues related to education as we'll hear about in a moment. His groundbreaking scholarship has earned him widespread recognition in the field. He's an elected member of the American Law Institute and a fellow of the American Academy of Art and Sciences. And as Josh mentioned, President Biden appointed him to the Presidential Commission on the Supreme Court. His work has also won numerous awards. I won't give them all to you, but I'll note a couple. His first book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind" was a Washington Post Notable Book of the Year on a New York Times Book Review Editor's Choice. A near and dear to my legal historian's heart, his 2012 article, the Constitutional conservatism of the Warren Court received the William Nelson Cromwell article Prize from the American Society for Legal History. His writing has also appeared in popular outlets like The Atlantic, the New Republic, the New York Times, and the Washington Post, helping to shape public conversations about constitutional law and education in the United States. Professor Driver is not only well published, he is also well traveled. He holds degrees from Brown, Oxford, Duke, and Harvard. After law school, he clerked on the DC circuit for Judge Garland and on the Supreme Court for Justice O'Connor. And before joining the law faculty at Yale, he taught at Harvard Stanford, the University of Chicago, the University of Texas, and the University of Virginia, as well as the Westville Correctional Institute, you know, credential facility in Indiana. But Professor Driver is also a native son. ### Segment 2 (05:00 - 10:00) [5:00] He grew up in Washington DC in a neighborhood east of the Anacostia River, and his parents were deeply committed to securing educational opportunities for Justin. So Professor Driver spent a good chunk of his formative years apparently riding public transportation to schools across this city in Capitol Hill, in Northwest DC and right around the corner from here at Gonzaga High School. So I can think of no scholar who is better suited to explore the complex dynamics of discrimination and opportunity that inform our national debate about race, education, and the Constitution. His lecture today is based on his recent book, "The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education" which speaks directly to some of the most consequential questions that are facing universities like ours today. Please join me in welcoming Justin Driver. - Okay, thank you so much for that incredibly warm introduction. I am delighted and honored to be here today with you all. The Ryan Lecture is one of the signature events in legal academia and the thought that I would be invited to deliver this, especially when I was a kid growing up in DC, seems improbable in the extreme. So it's especially an honor for me to be here in my hometown of Washington DC. I have a couple of people here with me who must be acknowledged. I brought a teacher of mine and a student of mine. The teacher is Mr. McGuire, who taught me at Gonzaga. He woke up very early to have a tutorial with me on James Baldwin. This is before James Baldwin was cool, I should say. And he believed in me before I believed in myself. The student is Remington Hill who helped me incredibly with this book I cite Public Enemy in my book. It Takes a Nation of Millions to Hold Us Back is the canonical album, and that's a provocative title. I can confidently say that it takes a platoon of law students to propel me forward. Okay, so I'm gonna talk about the Supreme Court's decision in SFFA versus Harvard from 2023. It is by my light, a calamitous opinion, a deeply misunderstood opinion, and I think that it's imperative because it is so misunderstood to really try to understand what it says and what it does not say. It seems to me that the Trump administration is brandishing a misapprehension of that decision in an effort to intimidate many institutions, not just higher education, but elementary and secondary schools, the business world, nonprofits. The list could go on and on. So I'll talk for a bit and then I look forward to your questions, your comments, and your objections. Okay, so one of the things I'm attempting to do in my book is to salute affirmative action for the incredible contributions that it made to American society. It seems to me that affirmative action represented a challenge to the prevailing racial hierarchy of this country. You know, the Supreme Court of the United States, as the law students know, repeatedly entertained challenges to affirmative action and it upheld affirmative action before the 2023 decision, but it typically did so through gritted teeth, there was a profound ambivalence that surrounded the Supreme Court's decisions in this area. You think back to Bakke in 1978 where Justice Powell writes the controlling opinion for the court where he says that racial remediation is not okay, but diversity is okay. UC Davis medical school program must fall, but Harvard College's Plan is okay. You see this ambivalence in 2003 where the Supreme Court, in an opinion written by my beloved old boss, Justice O'Connor, upheld the University of Michigan Law School's program and nevertheless said there needs to be an end ### Segment 3 (10:00 - 15:00) [10:00] to this at some point. She says it's been 25 years since we first entertained challenges to affirmative action in Bakke. We fully expect that in another 25 years, affirmative action will no longer be necessary. The ambivalence is only deepened when one considers that the court got rid of affirmative action at the University of Michigan undergrad through the grad's decision. So there's deep ambivalence and I wanna get beyond that ambivalence and think about what affirmative action did. I argue that affirmative action belongs right up there with the GI Bill as a significant transformative engine of social mobility that made valuable contributions to our country. Let me give you just a few statistics that will underline the point. In the fall of 1960, the entering college classes of Harvard, Yale, and Princeton included about 3,000 students. A grand total of 15 of those 3,000 students were Black. One-five. Harvard had a bumper crop, nine Black students, Yale had five Black students, and Winston had a Black students. You flash forward a decade, fall of 1970, there are still about 3,000 students who are entering those three revered colleges, but at this point, just shy of 300 of those students were Black. So we went from about one half of 1% to just shy of 10% and that revolution had cascading consequences for American society throughout the professions, including medical, the medical profession, the legal profession, engineering and academia. As a result of the Supreme Court's decision, we have seen plummeting Black enrollment rates at many of our fine universities. MIT went from 15% Black to 5% Black. Amherst went from 11% Black to 3% Black and on and on. So I fear that we are seeing, or perhaps more accurately not seeing a lost generation of Black students on college campuses. There are a few different parts of the book that I'm gonna talk about today. I try to challenge conservatives, my fellow liberals and then I try to identify viable paths going forward that remain available to universities who remain invested in the project of racial diversity. With respect to challenging conservatives, the first chapter in the book makes the claim that SFFA versus Harvard, even as assessed by conservative lights, makes matters worse rather than better. Conservatives have been pining for the demise of affirmative action for so long that it seems to me that they dedicated inadequate attention to contemplating what would be what would replace their disfavored regime. Let me give you a few particular examples of how things are worse rather than better. One is conservatives a sale affirmative action by saying that it leads to a victimization mindset. They speak about the cult of victimology. This is a dangerous mindset to take on to perceive yourself as a victim. If you're trying to make contributions to American society, this is bad posture to have. I argue though that this concern about victimization, trying to take it seriously that this concern is intensified rather than alleviated as a result of the Supreme Court's decision. The Supreme Court's decision has been understood by universities understandably, to get rid of the racial checkbox data during the admissions process itself, all the way through the admission off of the waitlist. But under the old regime, a Black applicant like myself could check the Black box and then write a personal statement about why I wanted to study Proust or Plato or intellectual property or anything else under the university's wide sun. Under the new regime however, Black applicants are incentivized to write personal statements that sound in racial victimization. Toward the very end of the opinion ### Segment 4 (15:00 - 20:00) [15:00] Chief Justice Robertson's opinion for the court, he says that universities can consider race if they are dealing with personal statements that speak about their experiences with discrimination. And so this encourages people to go through their own lives and pluck out an unfortunate regrettable experience with racial discrimination and polish that into a high sheen. My students refer to this as with regret as being asked to perform their racial trauma and that of course sends the message, one that conservatives would dislike and I would dislike two, that race is without question, the most important thing about us. And so it seems to me that the concern about victimization is doing exactly the opposite of what conservatives wish would happen as a result of the end of affirmative action. It's going to accentuate racial grievances. And as you all know, writing a successful personal statement requires multiple rounds of revision and students are going to lug that sense of racial aggrievement with them to campus right along with their dormitory refrigerators. Second example. Conservatives detest affirmative action because of mismatch. This is a term that I associate with Richard Sander, although the idea goes back to the late 1960s where people say the problem with affirmative action is that it elevates Black students into environments for which they are ill prepared for success. So rather than going to this undergraduate institution where they would've gone without, you know, sort of racial preferences, instead, they go to this institution and that's bad for all involved. Here I am thinking about mismatch as being intensified, not so much for the academic that has been the focus, but instead what I think of as social mismatch. It will be a lot easier in the aftermath of affirmative action to admit not the A minus student from one of the fancy institutions, high schools, but instead to admit the valedictorian of an underperforming high school because it will be much easier to justify that. And many of these underperforming schools are made up of entirely Black and brown student bodies. Here, I am trying to take conservative seriously. This is an argument that I identify with Justice Clarence Thomas. In my book I write about Washington DC's own Cedric Jennings. This is a remarkable young man who went to Ballou High School. He was profiled in the Wall Creek Journal by Ron Suskind and it was about Cedric Jennings's efforts to achieve in the face of truly difficult circumstances. Suskind profiles Jennings. Justice Thomas read the profile and to Justice Thomas' Credit, he issues Cedric Jennings a standing invitation to come visit him in chambers. Eventually, Cedric Jennings takes him up. Ron Suskind trails along and sort of recounts what happened. Eventually, the subject of college plans came up and Cedric Jennings says, with a smile, "I'm off to Brown University in the fall. " Justice Thomas frowns, shakes his head, looks down at the floor and says, "I don't know if I would do that if I were you. " There are an awful lot of smart white kids up at Brown, and if you're not sure who you are, you could get lost. You might think that this is an offhand comment, not the case. Justice Thomas's memoir, my grandfather's son talks about his own experiences at Holy Cross and how he saw his Black classmates who had never been around a significant number of white people before, sort of drop out and become overwhelmed with their experiences. So these ideas about social mismatch are going to again, be intensified rather than alleviated. Okay, so that's my challenge to conservatives. And then I also do challenge my fellow liberals. The traditional way of understanding the equal protection clause is a dichotomy. Conservatives overwhelmingly say the equal protection clause forbids racial classifications. You cannot treat people differently on the basis ### Segment 5 (20:00 - 25:00) [20:00] of their race. Whereas liberals overwhelmingly say that the equal protection clause prohibits racial subordination. And the rubber hits the road for which theory you subscribe to in the context of affirmative action. Racial classification, folks would say anti-classification would say, "Of course, affirmative action has to go because it involves express racial classifications. " Anti-subordination scholars, including many of my colleagues at Yale, would say, "Affirmative action is a-okay. It's not as though that's about racial subordination. Affirmative action is designed to counteract that sort of thing. And so of course, it should pass constitutional muster. " Justice Thomas has scrambled this traditional dichotomy. Jennifer Thomas uses the term anti-subordination for the very first time in the US reports in students for fair admissions versus Harvard, and he purports Thomas does to be speaking in the register of anti-classification, but he also avails himself of anti-subordination logic. Thomas says in effect, "The problem with affirmative action is that it gives voice to the lie that Black people can't make it when left to their own devices. They need a booster seat in order to be able to compete. " And that is, you know, consonant with the idea of Black inferiority. So in order to get rid of a formative action, Thomas says, is to engage in anti-subordination. You don't have to take it from Justice Thomas, Professor Stephen L. Carter, my colleague at Yale wrote a book called "Reflections of an Affirmative Action Baby" many years ago, and he says, "I support affirmative action. But yes, there is a subordinating component of affirmative action. " Professor Randall Kennedy of Harvard Law School wrote a book called "Forward Discrimination" that says very much the same point. Derrick Bell, one of the founders of Critical Race Theory writes many decades ago, "A problem with affirmative action here," I'm paraphrasing if not quoting, "it envelops racial minorities in a cloud of suspected incompetence. " That is classic anti-subordination rhetoric. And if you are an anti-subordination theorist, you need to answer the challenge posed by Justice Thomas, Professor Carter, professor Kennedy and Professor Bell. Anti-subordination theorists have not done that. I argue in the book that we would do well to think about what the Equal Protection Clause requires rather than only focusing on what it forbids. There's a lot of things that universities can do that remain available. And it seems to me that the best reading of what the decision prohibits is what Chief Justice Roberts refers to as universities cannot treat people differently on the basis of what he refers to as race qua race. That is what's off the table. Race for the sake of race. So obviously, this is an elliptical phrase, but there are esteemed legal thinkers who have thought about what the Equal Protection Clause prohibits along race qua race. Seems to me that the most important Supreme Court justice of the last five decades is Georgetown's own, Justice Antonin Scalia. I say that not because I am brimming with admiration for justice Scalia's jurisprudence, but he has changed as Justice Kagan has said, how we talk about the law, how we think about the law, the fact that a majority of the current court marches behind an originalist banner is directly attributable to Justice Scalia. Justice Scalia is number one, and whoever is in second place is a distant second. Okay, so here's what Justice Scalia said when he was merely Professor Scalia. He writes, one year after Bakke, he says, "I have no problem with programs that are designed to help what he calls the poor and the disadvantaged. " He then goes on to say, and here I'm quoting, "It may well be that many or even most of those benefited by such programs would be members of minority races. I would not care if all of them were," the italics, Justice Scalia, "the unacceptable vice is simply selecting or rejecting them on the basis of their race," he says ### Segment 6 (25:00 - 30:00) [25:00] again, the italic is his. "And that sounds an awful lot like race qua race. " Taking that seriously, that means that the Trump administration's efforts to say that universities who changed their admissions practice with an eye toward increasing racial diversity, that is impermissible, that understanding is incorrect. You know, the Trump administration had attempted to say, if University say, got rid of standardized testing with an eye toward increasing racial diversity that would violate SFFA versus Harvard. The opinion says nothing of the kind. And there are many others who have offered understandings of what race qua race means. Okay, let me give you some concrete ways going forward that universities can use. And before I do that though, I wanna say very clearly that I want no part of defiance of the Supreme Court of the United States. There are some people who write in this area and say, "Oh, universities should just do whatever they were doing before. " The history of defiance of judicial opinions is an ugly one in American history. Seems to me that the rule of law has never been more fragile than in this moment that we are living through, at least during my lifetime. I'm deeply concerned about the fragility of the rule of law. I want nothing to do with defiance. Okay, what can universities do? Well, here's one thing that they shouldn't do if they're hoping to increase significant numbers of racial minorities. A lot of people talk about legacy admissions. I am deeply opposed to legacy admissions. They should be jettisoned immediately. I told the New York Times a while back. Supporting legacy admissions is a little like rooting for Elon Musk to purchase the winning lottery ticket. Somebody who has everything doesn't need more still. My children really don't like it when I talk about that I should say. But the idea that getting rid of legacy admissions is going to lead lots of Black and brown students in the door is erroneous. There are a small number of universities that have gotten rid of legacy admissions, including the great Amherst College, John Hopkins, MIT. They got rid of legacy admissions before FFSA versus Harvard. And nevertheless, they all, three of those institutions I just mentioned, experience plummeting Black enrollment. So this idea that we're gonna get rid of legacies, we should do it, but not because it's going to lead automatically to loss of racial diversity. Okay, here is the most controversial idea and I'll lead with this and I'll spend the most time on this one. I say that universities should contemplate using preferences for slavery's defendants. That may seem like a wild argument, one that is impossible to swear with SFFA versus Harvard, but it is not so. Indeed originalism provides a real outlet here. It's, there's a difficulty if you are an originalist, someone who believes that original public meaning must be vindicated and you are opposed to affirmative action, what do you do with the Freedmen's Bureau? After all, the Freedmen's Bureau would be a contemporaneous piece of evidence that would seem to suggest that programs designed to help Black people can pass constitutional muster. This actually came up in Justice Thomas's concurring opinion. To his credit, he understood the challenge posed by the Freedmen's Bureau and he says, "Freedmen's Bureau, that actually wasn't a racial designation at all. It's about the status of having been an enslaved person. " Many esteemed people, including the Redoubtable Eric Foner, say this is a wild interpretation of what was happening that Freeman was synonymous with Black people. Nevertheless, we need to take Jeff as Thomas at his word, and that means that if Freedman was not a racial category, that preferences for the descendants of the enslaved is also not a racial category. Remember that what's forbidden is race qua race and there are Black people on either side of the dividing line. Yes, many Black people could say, "I am descended from the enslaved," ### Segment 7 (30:00 - 35:00) [30:00] but there are many Black people in the United States today who could not say that, and that cannot be understood as race qua race. So this should be seriously entertained. Important to say that preferences for the descendants of the enslaved would not be something that is totally new under the university's wide sun. After all the great Georgetown University as a program that offers preferences to the sentence of the enslaved, I salute Georgetown for taking that honorable first step. So many universities, including my own, have investigated their own ties to the peculiar institution and not taken the next logical step and said, "We have a special responsibility in this area. " So it's to Georgetown credit that they took that first step back in 2016, the president of Georgetown said, with force, I'm quoting here, "We live every day with a legacy of state. " I wish however, that Georgetown had gone further still. They offer preferences to the descendants of those who can chase trace their ancestry back to Georgetown University itself. The particular order of the Jesuits that enslaved people. That by my life is too parsimonious in understanding of who should qualify for the preference. You know, since in 2023, so seven years after the program was announced, only 20 students had been admitted pursuant to the program. That's admitted, that's not enrolled by the way. From my perspective, one of the central horrors of slavery is that it transformed and degraded individual souls into fungible commodities. And that same fungibility presumption should be extended for the descendants of the enslaved. Okay, next idea that universities could use. Tribal preferences. We spend too little time thinking about our Native American brothers and sisters in these sorts of conversations. After the end of affirmative action, native enrollment plummeted at many universities, including California, which got rid of affirmative action a long time ago. The Supreme Court, in an opinion from the 1970s called Morton v. Mancari has said, "Preferences for tribal members are distinct from symbol preferences for Native Americans. Tribal preferences, that's a political designation rather than a racial designation. And it is perfectly constitutional under the equal protection clause. " Next idea. Preferences for people who attended local schools who do not have a strong track record of sending students to the flagship institution. Many of our excellent leading universities have ivory towers that cast long shadows on Black and brown communities. And it seems to me that it would behoove these universities to think about the talent that is in their own backyards. So we should think about Columbia's Washington Heights, Johns Hopkins's West Baltimore, the University of Pennsylvania's North Philadelphia, the University of Chicago South Side, and Georgetown's Anacostia. Yale, in the immediate class in the aftermath of the SFFA opinion, I am happy to report, included more students from New Haven Public Schools in that single class that had ever before enrolled in Yale. In its, you know, obviously, more than centuries of existence. I hope that more schools will follow Yale's lead. Okay, another idea would be preferences for people from low opportunity areas. There's a wonderful resource called the Opportunity Atlas devised by economists, Raj Chetty of Harvard and John Friedman of Brown. They got census track data that basically break down a single neighborhood and they pay attention to things like incarceration rates, teen pregnancy rates in an effort to think about, you know, who has overcome significant challenges. I would go so far as to say that we should have a quota. ### Segment 8 (35:00 - 40:00) [35:00] That's right, I said it, a quota. For people from low opportunity areas, not a racial quota, but a quota for people from low opportunity areas. There are important people who have written in this vein saying, "We should look out for the kid from Appalachia, just as we Anacostia. " And I am with them. I have in mind Georgetown's own Professor Sheryll Cashin with the wonderful "Place Not Race" in 2014. I would go one step further though. Within our quota of say 10% people from low opportunity areas, I believe that we should have 80% of people come from urban areas and 20% from rural areas. I did not just pull those figures out of my hat. The census tells me that 80% of Americans live in urban areas and 20% live in rural areas. That's not race qua race and should be constitutionally permissable. And I believe that would help those of us who remain invested in making sure that there are lots of Black and brown students on college campuses. It is incorrect to believe that simply paying attention to class, that a rising tide is going to lift all boats equally. Yes, Black people are disproportionately poor, but there are a lot of poor white people in the country. Princeton University just released its numbers from the class of 2029. I admire Princeton. They had more students from modest background than ever before. More Pell Grant recipients. Awesome. I'm sorry to report they also had fewer Black students than they had in decades. So we need to be more nuanced in our approach to these areas. The last idea that I will share with you is something that I, the concrete idea is something that I refer to as the fall and rise of box checking. Yes, the racial boxes are gone, but I would encourage universities to introduce new boxes that could be checked by applicants that would ask questions like, were you born to unread parents? Did you rent rather than own your home? Do you have a close relative who's incarcerated? The universities could collect this data. That's not race qua race. Those things may be correlated with race, but they're surely not race to themselves. And this would unburden some students from having to write yet another additional essay. You know, I understand that many young people say, "I'm gonna apply it to fewer places rather than writing yet another essay. " That checkbox is a very simple approach. Let me just say two more things and I wanna end with some sense of optimism here. The first thing to say is, goes back to the sunset provision that Justice O'Connor wrote in Grutter in 2003. As I said, she has in effect in another 25 years, we're not going to need affirmative action any longer. So 2003 plus 25 should take us to 2028. However, Chief Justice Roberts' majority opinion and Justice Kavanaugh of concurring opinion said, "We are honoring Grutter and its 25 year sunset because the next college class that is admitted will include members of the class of 2028. " Therefore, you get to 2028. This is the fuzziest of fuzzy math. I have it on good authority that some universities include these things called law schools. And the JD degree would typically take three years to complete rather than four years to complete by which count then Georgetown Law School, Yale Law School, should have been able to use affirmative action for one additional year. The MBA program should have been able to use affirmative action for two additional years. Surely, the decision goes to all of higher education, not only colleges. What this is revealing of is, it seems to me that the Roberts court is in a hurry when it comes to, with it, regards as the quest for racial equality. I do not share that understanding myself. The last thing I will say before I end with some optimism is that, I'm sorry to report that I do not believe that we are on the cusp of some sort of racial nirvana here in the aftermath of affirmative action. Edward Blum, who founded Students for Fair Admissions, when he learned that MIT went from five, from 15% Black to 5% Black said hooray and a good thing too ### Segment 9 (40:00 - 45:00) [40:00] because that 5% Black student population can walk away with their heads held high, knowing that they made it through the front door rather than the back door. I'm sorry to say that the great state of California, which got rid of affirmative action back in the '90s, the experience of Black students was not anything like, "Hey, we're all here. We all belong here. " To the contrary, I talk about Black students who say we're not invited to the study groups at all. This is two decades after the end of affirmative action. They think we're not smart enough. When we are walking around the UC Berkeley beautiful campus, and students are handing out leaflets to passersby, they don't even try to thrust a leaflet into our hands. They think if you're Black, you cannot be a student. And so this is the worst of all worlds, a tiny number of Black students, and they remain enveloped in that cloud of suspected incompetence. Okay, so optimism. That's important in today's world. One thing is something that makes me optimistic in a general sense, and then I'll end with the particular sense. So the general sense goes to Thurgood Marshall for whom Professor Cashin was a law clerk many years ago. I understand that Thurgood Marshall would tell his law clerks that when he was a practicing lawyer, the best case that he had to work with was Plessy versus Ferguson, which of course upheld the separate but equal regime. And he said it upon himself to try to ring every last drop out of the equal part of separate but equal. Obviously, Plessy versus Ferguson, is part of our anti-canonical laws. And nevertheless, if the mighty Justice Marshall could summon the optimism to say, a better day is coming, it seems to me that it's incumbent upon us to do the same thing. Okay. The particular example of why we should be optimistic is something that happened very quietly just last month. Several months ago now, the Trump administration issued a demand that educational institutions sign a document saying that they don't have illegal DEI, diversity, equity, and inclusion. And that was met with some resistance and a lawsuit that involved the American Federation of Teachers. A district court invalidated that threat from the Trump administration and said among other things that it chills speech within the classroom and it violates the constitution under the First Amendment. The Trump administration, just last month, announced that it was not going to appeal that decision. And that is a wonderful thing. And it's suggestive that it is important for universities and other institutions of higher education to follow Georgetown's lead in standing up and allowing the legal process to be able to work itself out rather than trying to cut a deal. So the last thing I'll say is that in the age of President Trump, the perils of acquiescence are profound and the promise of dissent is boundless. Thank you very much - Case in your analysis of it, and then get to the issue that I think most of the questions that we received are really about, which is, where do we go from here? Obviously, you've addressed both of those things already, but I think there's more to discuss. So I first wanted to ask about the central theme in your book, especially the first part of the book about the tension in the debates over affirmative action between the anti-classification and the anti-subordination visions of the 14th Amendment. And you talked a little bit today about how perhaps surprisingly anti-subordination principles inform the attack on affirmative action in FFA. So you mentioned that the stigma that people like Justice Thomas say that affirmative action opposes on Black students and other racial minorities. But then in the book you also talked about something you didn't mention, which is the argument that affirmative action as least it was as it had been practiced, did it favors Asian Americans in particular. And that was a strong theme in the SFFA litigation. So you highlight that, but I'd encourage you to say more about that critique, right? The anti-affirmative action anti-subordination theme. And in particular, how do you think that defenders of affirmative action who as you say, have long rested on anti-subordination principles, how should they respond? You said in your talk, we need a response. ### Segment 10 (45:00 - 50:00) [45:00] Do you have a view as to what the response is? - Wonderful question. Thank you so much for bringing that part of the chapter out that I did not mention at all. I make the claim in the second chapter of the book that it is impossible to understand SFFA without bringing anti-subordination to the fore. Because exactly as Kevin suggests, the claim that was advanced by SFFA on behalf of a group of Asian American students is that the existence of affirmative action as practiced by Harvard and the University of North Carolina succeed in subordinating Asian Americans. It is the very same odious stereotypes that were applied to Jewish people about a hundred years earlier. That existed at the Ivy League. That this is not a well-rounded group of people. That these are grinds who are not going to add much to the college campus and therefore we need to limit them. And within the context of Asian Americans, this is a group that is perpetually foreign. There's a really searing moment at oral argument where one of the attorneys who was attacking affirmative action said, "We keep talking about Asian students, these are people who were born in Ohio, in Virginia, we should be talking about Asian Americans. " And I think that is quite right indeed in the book. I say, if you think that's not objectionable, imagine a lawyer talking about, you know, what are we gonna do with our Africans rather than African Americans? So I absolutely think that's a pivotal essential to bring up. What do we do with respect to the anti-subordination idea. I would say that the response could be a couple fold. One would be thinking about other justifications for affirmative action. It seems to me that a stronger justification might be a democratic justification for affirmative action, one that would regard integration as an imperative that might sound like a radical idea. I borrow the idea from Justice Lewis F. Powell Jr. And I'm confident no one's idea of a radical. He was the chairman of the Richmond School Board when Brown versus Board of Education was divided, and he fought that decision tooth and nail. And nevertheless, once he makes it to the Supreme Court in a case called Keys, he says, "We should not have, you know, one set of approaches for Atlanta and the deep South and another set of approaches for, you know, Detroit and the north. If there's racial isolation in the schools, it should be incumbent upon those school districts to take integrative steps. " So it seems to me that we would do well to consider some of the lost theories of the equal protection clause. And the other thing I would say is, you know, we need to do a better job of thinking about what affirmative action actually did. Sometimes people say, "Well, affirmative action, it's just sort of a handout, you know, didn't really do it. It's just helping out Black people. " I think that's the wrong way to think about it. I spoke to somebody who was a member of the Yale College class of '69. This was the first college class at Yale who had a significant number of Black people. This person told me that when he arrived, there were six Black students in the senior class, and then there are 90 Black students. Again, overnight things change. That group included unknown names like Henry Lewis Gates Jr. Sheila Jackson Lee, congresswoman. Ben Carson, cabinet member. Kurt Schmoke, Black mayor of Baltimore, leader in education at Howard. Linda Darling-Hammond, a giant in the field of education. There's a guy called Anthony Davis who won a Pulitzer Prize in music as well. The idea that these people were given something strikes me as erroneous, they added to the luster of Yale and they made deep contributions to American society. It seems to me that the affirmative action ethos was won. That was driven by the old maxim that says, "Talent is everywhere, opportunity is not. " And I wanna get back to those days. - Great. So I wanted to also ask about something you talked about in your talk and I thought was one of the most fascinating parts of the book about what SFFA, the decision leaves open in terms of paths to enrolling a diverse student body. So including admissions preferences for, as you said, the descendants of enslaved persons for tribal members, right? And then geographical preferences, and you have more examples in the book ### Segment 11 (50:00 - 55:00) [50:00] everybody should read it, by the way. Which do you like best? Right? So the book, you know, says, "Here are a bunch of things we could do. " And so I'm interested, what does Justin Briber think are the ones that are likely to actually succeed in recovering the gains in racial diversity that we achieved under the old affirmative action? Which do you think are the most promising, maybe the most feasible? And also, not to add too many points to this question, but they're most likely to withstand the inevitable attacks, you know, especially given the Trump administration's hostility to any diversity promoting policy and its willingness to litigate with universities over those. - It's a really good question. I should say that all of my ideas are my second order preferences rather than my first order preferences. I liked good old fashioned deaffirmative action as it was practiced by universities. So sometimes people are upset with me about, say, preferences for the descendants of the enslaved. That's not my first order preference, but I'm trying to think hard about what remains constitutionally viable. And I am drawn to that. I think that it would spur a much needed conversation about the legacy of slavery in this country. One that people in high places are interested in attempting to airbrush. It seems to me that we are in our infancy of grappling with the peculiar institution and the prevalence of these sorts of boxes on applications may spur some conversations. Some people object, "Well, how are we gonna know? What about fraudulent behavior? you know, sort of determine who's actually legit here? " It's an interesting objection. I would say a few things. One is when one checked the old racial bots, it's not as though universities unleashed the Basset Hounds, and they were rooting around one's family tree. They took people's word for it. And so this doesn't introduce a problem of fraud. It would be, you know, the continuation of it. And some people would say, perhaps, you know, Kevin's too polite to say it, "Come on, you must be crazy. In this day and age? In this age, in this day, you're talking about preferences for the dissent of enslaved? That would be hit with a lawsuit immediately. I've written the book to be one that I hope will last for a while, and I want us to bear in mind that this particular moment is not going to extend forever more. If you had told me when I was a kid that there would someday be a holiday in honor of Juneteenth, I would've said, "What's Juneteenth? " And then after you explained it to me, I would've said, "Ain't no way. Not in my lifetime. " So we should bear in mind that this moment's not gonna last forevermore. You know, so you asked a few different questions. I don't see why it should be objectionable to institute, you know, a low opportunity quota, as I said earlier, in fact, you might think that some elements of those who, like the Trump administration, would be drawn to this. So the fall and rise of box checking should also be eligible. And just because a lawsuit is filed does not mean that the universities should crumble. They should stay the course. And as many law firms have, rather than striking a deal, they should play out the legal process. And so I don't want universities or other institutions in the educational world to just sort of wave the white flag of surrender. It's especially important for them to vindicate their own understandings of what the Constitution means rather than allowing the Trump administration to bully them about. - Well, great. So on the theme of looking ahead to what can be done, I wanna turn to some questions from audience members that folks submitted ahead of time, but you started your talk but you end the book with a really moving elegy that briefly describes the huge impact that affirmative action had on Black enrollment in particular at elite universities. So my colleague, Professor Janel George. Janel, are you here? There's Janel, okay. So we've gotta give credit to Janel for this question. What do you think the repercussions will be of the Supreme Court's significant narrowing of affirmative action? The repercussions for Black students in the next few years, or the next generation, right? ### Segment 12 (55:00 - 60:00) [55:00] Are we going back to 1960, I think, effectively, and how do you think about that? - Yeah, I'm deeply worried about college campuses and institutions of higher education generally. As I said earlier, I fear that we're seeing a lost generation. It seems to me that SFFA has filed some lawsuits with universities, who, against universities who did not experience the pluming enrollment of Black students. And of course the Trump administration was able to strike a deal with my beloved alma mater, Brown University and also Columbia, and people focused on the financial piece of those deals and paid insufficient attention to the fact that Columbia and Brown agreed to hand over their admissions data with accepted and rejected students broken down by race. So I fear that we are still in many respects, in the early days on this. And with Brown and Columbia knowing that they're gonna have to hand over the data, that's going to weigh very heavily on admissions officer's minds suppressing the already depressed enrollment of Black students at both Brown and Columbia further. And then I fear that the Trump administration will wave these numbers around and say any institutions that have Black enrollment that's north of Brown and Columbia, you're cheating and we're coming after you. So, you know, I try to be an optimistic person, but I fear that the darkest days may be before us yet. - So your book is focused pretty squarely on affirmative action in the context of admissions to elite universities, but you are someone who thinks about education more broadly. And so we had a couple students who asked questions along these lines. So Blakely Harden. Blakely, are you here? There, okay. Asked whether there are any spillover effects from SFFA in the K-12 context that we should be thinking about? I think like the source, you know, what's the next frontier right in this fight? - A great question. Thanks so much for it. Yes is the answer to the question. Thinking about elementary and secondary education and magnet schools in particular, you all know the great Thomas Jefferson High School, just across the river in Fairfax County, was subjected to a lawsuit after it changed its submissions process in the wake of George Floyd's death. And that happened at lots of different magnet schools. They had a long look in the mirror and said in effect, "We have a tiny number of Black and brown students. And in the context of Fairfax County, we wanna do a better job of drawing from the excellent middle schools. " And they revised their admissions policies. So the Fourth Circuit upheld Thomas Jefferson High school's admissions process and a similar decision was reached by the First Circuit, however, just recently the Third Circuit in an opinion by Judge Hardiman invalidated Philadelphia's magnet school admissions program. And so there's an effort to say that when institutions, throughout the educational process, make decisions with an eye toward boots being racial diversity, that itself is forbidden and that's the next terrain that we're going to encounter. There is, well, I should also back up and say that the Supreme Court repeatedly entertained challenges to the University of Texas's admissions process and Fisher I and Fisher II. And the University of Texas. The primary way that people were admitted was through something called the Texas 10% Plan, where being a graduating member of a public high school in Texas guaranteed a slot at the University of Texas. That program was instituted because in the aftermath of affirmative action in the Fifth Circuit, they said, "If we do that, that will yield significant amounts of racial diversity. " The Supreme Court, no single Justice has ever said that the Texas 10% plan was unconstitutional. People paid attention to the right racial classifications that filled out the remainder of the class. So it seems to me that the third circuit's opinion is getting way far out in front ### Segment 13 (60:00 - 64:00) [1:00:00] of where the Supreme Court has gone. And there has been some appetite at the Supreme Court for taking up these challenges, including Justice Thomas and Justice Alito, and to a lesser extent Justice Gorsuch. But of course, it takes four justices to grant certiorari at the Supreme Court and there hasn't been enough appetite to get there yet. It's possible they're trying to let this in Supreme Court parlance and Supreme Court parlance percolate. So we shall see. - So no, so both likely and another student, Leila Rah who are both asking about the repercussions of SFFA more broadly, also wanted to know what should they be doing, what should new lawyers be doing in this moment? How can they focus their energies to ensure equity and diversity in public education given the political climate that we're facing? So sort of seeking advice from a law professor career advice. - Yeah, it's very interesting. I mean, I think that the best thing you can do as a lawyer is to give your clients really good advice, including encouraging them not to overread the decision and, you know, tell them to stand their ground. You know, some people can test affirmative action and say, "Well, it's a very late intervention. You're dealing with people who are 18 years old or older and you know, we should get rid of this. We should get started earlier. " You know, there's something to the idea that this is a late intervention. My trouble with the objection comes from the fact that there is nothing that's preventing us from redistributing funds in elementary and secondary schools. The idea that because of affirmative action that accounts for the sorry state of our nation's public schools, especially in Black and brown neighborhoods, that seems to me the ultimate non-sequitur. So I hope that people will redouble their efforts. I have noticed that those who lodge this critique of affirmative action have not been falling all over themselves in their efforts to start tutoring at the schools down the street and everything. So that's one thing that could be done. And of course, the quality of education, it depends way too much upon where one grows up. You know, you were kind enough to talk about my own experience here in Washington DC. I never attended my neighborhood schools. I'm quite confident that had I attended my neighborhood schools, my feet are not on this beautiful carpet right now here at Georgetown Law School. And that's a crying shame and an indictment of our nation's educational system. And so in order to draw on the talent that exists here, you know, we need to do a better job. I'll tell you just one last story and then, you know, I went to DC Public schools. I was talking with another professor who spent only one year in Washington DC. This person grew up in a very fancy suburb of a major American city. This person was in Washington DC for one year. And this very liberal law professor was saying, "Yeah, I went to DC schools for a year. You were terrible, really bad. And so I then turned around and went back, you know, with my family to the suburbs of Chicago. You know, my father stayed behind in DC but we went back. " And then I started saying, "Well, where did she go to school? " And it eventually became apparent that her horrible school was the very elementary school that I was on a bus in two different subway lines to get to every day. And that is a distillation of the inequity that exists in our schools. I should say this person's a little older than I am. If anything, the school was better when she went to it than when I did. And so we have to do better at the nation. - Well, on that note, I know we have books to sign and orders to consume, so please join me in giving a huge round of applause for Justin. - Thank you, thank you. Thank you so much, Kevin. I really enjoyed it.