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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Now, we continue our WNYC Centennial Series, 100 Years of 100 Things. With the war on diversity, equity, and inclusion right now, and this being Black History Month and the Supreme Court decision in 2023 banning race-based affirmative action for applicants to college, today's topic, number 71, is 100 years of inclusion and exclusion in college admissions.

Our guests for this are Anthony Chen, sociology professor at Northwestern University and author of the book The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941-1972, and Lisa Stulberg, professor of sociology, specifically the Sociology of Education at NYU. Together, Anthony Chen and Lisa Stulberg are writing a book on the origins and political development of race-conscious affirmative action in college admissions.

Another news hook that's come up before we bring them on since we planned this segment with them is that the Trump administration has banned the military academies and other federal agencies from spending taxpayer money on cultural observances or affinity groups. As CBS News reports, for example, the Pentagon's intelligence arm has issued a memo pausing any activities related to Martin Luther King Jr. Day, Juneteenth, Black History Month, LBGTQ+ Pride Month, and Holocaust Remembrance Day, among other "special observances," according to a defense official who confirmed the authenticity of the memo.

Bloomberg News adds, "The Pentagon is extending its crackdown on diversity efforts to schools for the children of military service members, suspending all cultural observances, barring employees from including pronouns and email signatures, and prohibiting the use of the term "gender" in student paperwork. As the AP reports, the US military academy has disbanded a dozen West Point cadet clubs centered on ethnicity, gender, race, and sexuality in response to the Trump administration's push to eliminate diversity programs throughout the government.

The famed military academy in New York says the AP issued a memo shutting down groups, including the Asian Pacific Forum club, Latin Cultural Club, National Society of Black Engineers club, and Society of Women Engineers club in order to adhere to recent guidance from the army and Defense Department. It also shut down the Corbin Forum, a decades-old leadership club for female cadets, and Spectrum, a gay-straight alliance, says the AP.

At the same time, President Trump has also announced creation of a federal task force to fight anti-Christian bias. Some organizations aimed at expanding equality are being banned. At least one other for Christians is being created. With all of that as prelude, Professor Stulberg, Professor Chen, thanks for joining 100 Years of 100 Things series and welcome to WNYC.

Professor Lisa Stulberg: We're happy to be here. We're longtime listeners and big fans. Thanks, Brian.

Professor Anthony Chen: Thanks, Brian.

Brian Lehrer: Looking back 100 years or so, according to US Education Department statistics, in 1920, only 4% of white Americans age 25 and up had a bachelor's degree and only 1% of Black Americans. By the year 2022, according to figures from the census, around 42% of white Americans had bachelor's degrees but only 28% of Black Americans. With those little beginning and end points as a starting point for us, how do you see equality and educational access at the higher-ed level?

Professor Stulberg: Well, it's a big question. I don't know if you can hear how vigorously I'm shaking my head from the news you just mentioned, but I think it's important to start back 100 years as you have to think about diversity in higher education. We really do have to go back that far. Higher education looked a lot different 100 years ago. At the beginning of the 20th century, college going was really almost exclusively the province of White Anglo-Saxon Protestant, WASP men who were hailing from really the utmost reaches of the class structure.

There was a really tight connection between the prep schools and the private schools and the most elite colleges in the United States. It wasn't really until World War I or right after that colleges began to open up a bit more to immigrants, mostly white immigrants at that time, Jews, urban working-class folks. Colleges at that point started to think more carefully about what merit meant, started to think more carefully about who they wanted to have in their college classes and to think more carefully about diversity.

As you know and as your listeners probably know, at that time, there was a real concern that because colleges were opening up and they were starting to use tests like the SATs in the 1920s and 1930s, there were people who were doing well on those tests and doing well in the college application process that those elite schools were not so excited to have on their campuses like Jews and immigrants. Actually, the term "diversity" came out of an anti-Semitic turn that we can talk about more from that time. It wasn't initially connected to race at all.

Brian Lehrer: Let me go back to that time a little more with you by citing a few lines from The Harvard Crimson, the student newspaper, from 2023. The Crimson said, "In the 1920-21-22 school year, 1921-22, Harvard student body was 21% Jewish. By comparison, in the mid-'20s, Jewish people made up approximately just 3.5% of America's population. University officials worried about this 'overrepresentation' of Jewish people on campus."

"Over the course of the 1920s, Harvard's administration passed a series of admission policies to limit the percentage of Jewish students in each incoming class. These policies were the first attempts in Harvard's history to restrict the admission of qualified applicants. Legacy admissions were among these changes. A surefire way to preserve the white Protestant demographics of 'old Harvard' was to admit the white Protestant sons of old Harvard graduates."

"Many of these practices, says The Crimson, remain in place today." The Ivies are often a special case, Professor Chen, but can you use that as a starting point and build on what Professor Stulberg was just saying to say what the college admissions were based on and if there were any systems of preference in place in addition to legacy admissions when we go back 100 years ago, 90 years ago?

Professor Chen: I think I'll defer to Lisa on this one. This is really in her wheelhouse. Thanks so much for inviting me to comment, though.

Brian Lehrer: Sure. We'll have plenty to ask you about as we go that I know is in your wheelhouse. Professor Stulberg, you want to take that a step further?

Professor Stulberg: Yes, definitely. As a proud Jewish nerd myself, I would say that one of the things that these schools were worried about was having too many Jewish nerds who they called grinds and introverts and clannish. They were really concerned that the kind of WASPy culture of these schools was going to be ruined by folks who were doing well on standardized tests and who might come to these schools and stick to themselves, in large part because the culture of these campuses was not open to anybody that was not in this WASP elite.

They started to think about forms of diversity like geographic diversity and diversity of interest. They cared about things like character and having a well-rounded student bodies. Those really were the forms of diversity. They used the word "diversity" at that time. Those were the forms of diversity that these schools started to think about, particularly to limit the number of Jews and others who they deemed to be undesirable on their college campuses?

Brian Lehrer: Diversity in the name of exclusion, in pursuit of exclusion?

Professor Stulberg: Yes, absolutely.

Brian Lehrer: As going to college became more common and more necessary for the 20th-century economy, what might be a next historical landmark, Professor Chen, if you want to jump in on anything, in terms of any kind of preferences, GI Bill, or anything else mid-century?

Professor Chen: Well, the mid-century period is really interesting because there's a moment, I think, starting in the mid to late 1950s when there's a shift in American culture to begin valuing the whole spectrum of humankind, the varieties of humankind. For many years, I think American culture was dominated by a fixation on the WASP elite and what it symbolized. Around the mid-1950s to the late 1950s, there began to be a greater emphasis on valuing all the different varieties of humankind.

The sources of that change are many. Historian David Hollinger has highlighted an important movement within ecumenical Protestantism, within mainstream Protestantism, especially among the leadership of the different mainstream Protestant denominations. A movement towards a greater self-interrogation about the place that mainstream Protestants had in American society and a desire to reach out to groups that hadn't been included in the past, that hadn't had the same range of opportunities, that hadn't had the same level of representation in various American institutions. You can see that shift, that slow shift in American culture valuing the varieties of humankind. You can see that shift expressing itself. Sorry, that's outside my window. You can see that expressing itself.

Brian Lehrer: They're not coming to arrest you, right?

Professor Chen: Yes, I was going to say, I'm not sure what executive orders have been issued today, but I hope I'm not personally subject to any. This port of impulse in American culture began to find expression in American college admissions policy. First, at places like Harvard through the offices of Wilbur Bender, longtime admissions dean there. Then at Columbia through the offices of Henry Coleman, an admissions officer in the early 1960s. Men like John Kemeny, a Hungarian mathematician who would later head up Dartmouth, also began to express a real appreciation for diversity on campus.

A select number of private colleges like Harvard, Columbia, and Dartmouth began to not just value diversity but change their admissions policies to try to incorporate more diversity on campus. I would say that the first notable shift after the mid-century period would be the rise of these college admissions policies in the late '50s, but especially the early '60s that began to value diversity, not with the kind of anti-Semitic resonances of the 1920s but with a broader resonance to a whole variety of different social backgrounds.

Brian Lehrer: By the way, your book that focuses on that era called The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941-1972, I guess you're referring to FDR's Four Freedoms and you're adding a fifth. Would you enumerate them?

Professor Chen: That's right. It's a freedom from fear, freedom from speech, freedom of religion. I'm blanking on the other.

Brian Lehrer: What was the fifth?

Professor Chen: The fifth one is the freedom from discrimination. Because World War II was a fight among other things against the racial ideas of the Nazis, there was a real effort made on the part of the federal government to try to promote equality in the ways that it felt like it could. Obviously, there was plenty of racial exclusion in all kinds of areas of American life, including our war effort.

One of the aspects of the war effort that did try to at least make good on the principle of equality was government employment and government procurement. As a result of FDR's executive order, there was a fair employment practices commission that was created to try to make sure that there was some degree of equal treatment in government employment and war contracting.

That committee actually ended at the end of World War II, but it sparked a social movement that tried to recreate it, but first in Congress and then in the states outside the South. That struggle for freedom from discrimination that was sparked by this executive order on the part of FDR gave rise to a movement for freedom from discrimination that eventually laid the background for the rise of affirmative action in the '60s and '70s.

Brian Lehrer: Listeners, if you're just joining us, we're in our 100 Years of 100 Things series today. Thing number 71, 100 years of inclusion and exclusion in college admissions, with our guests Anthony Chen, sociology professor at Northwestern University, and Lisa Stulberg, professor of the Sociology of Education at NYU. In addition to Professor Chen's previous book, The Fifth Freedom, they're working together on a book on the origins and political development of race-conscious affirmative action in college admissions.

Listeners, as we do in these 100 Years segments, we invite not just your questions but your oral histories, in this case, regarding you or family members from past generations or anyone else you've known regarding college admission preferences. 212-433-WNYC, 212-433-9692, call or text. Professor Stulberg, let me ask you to talk a little bit more about a person who Professor Chen mentioned there, the dean of admissions at Harvard in the 1950s, Wilbur J. Bender, as a seminal figure in bringing a socially inclusive sensibility to the process of admissions, the two of you wrote in an article a few years ago. Can you talk about this little-known figure from history, Dean Wilbur Bender, and what he said or did?

Professor Stulberg: Sure. I'll ask Tony to jump in here too. I would like to broaden it a little bit to say that one of the things that we see with Bender and others like him is that we often think of affirmative action as coming from the social movements of the late 1960s. That was when we started this project, what we thought we might find, but we were curious to know if schools had begun their affirmative action programs and taking race into account in an affirmative way before then. We found people like Bender and others around the country who were themselves not necessarily from elite backgrounds but found themselves in elite educational institutions.

They were asking themselves questions that I think is one of the central questions of the Sociology of Education, which is, what are schools for? What is the purpose of education? They were doing this at a time when the social movements around racial justice, specifically for Black Americans, were starting to ask them to think about schools in this way and to recruit schools to join the movement for racial progress and racial justice.

We have these elite white men, Protestant men, who, like Bender and Tony, can jump in with others who took it upon themselves to see a new role for their institutions and were very interested in creating racially and socioeconomically and religiously diverse institutions, among other things, for the purpose of racial progress. They were also interested in creating a rich experience for all of their students.

Diversity was one of the ways that they felt that they could do that. These men were not themselves particularly radical. They were interested in maintaining the eliteness of places like Harvard, Yale, Princeton, and Columbia, but they saw that diversity could play a role in that and that racial diversity could play a role in that and that their institutions could have a role in the broader movements of their time.

Brian Lehrer: Well, then let me ask you, as a sociologist of education, on the piece of that answer that referred to the broad, big question of, what is education for? What is higher education for? I know people who think that private college shouldn't even exist, only public colleges, and that selectivity in college admissions at all is a form of elitism and winds up excluding people not just from college but from the economy or the higher ranks of the economy. What would you say, as a sociologist of education, that private college is even for or, more importantly, I think that selectivity in admissions is even for?

Professor Stulberg: I would love to see all education being free in this country. I don't think it's going to happen. I think we have a narrative that is very American that is one of individualism and one of the American dream narrative that anyone who works hard and has talent can make it in this country, but that requires some personal sacrifice. Education becomes seen in this country as an individual amenity or something that individuals have to work at and not as a social good.

There are many other countries in the world that see higher education as a social good and, therefore, pay for it for their citizens, which I would love to see us do as well. I don't think it would ever happen as we saw with the last administration and Biden's effort to try to even just reduce college loans, but that is what I would like to see as a sociologist and as an American.

Brian Lehrer: Professor Chen, you want to piggyback on any of that?

Professor Chen: Well, I think you're asking an important question. One way to put the question is, what do schools do? Do they reinforce the hierarchies that we already have in society or do they help us change those hierarchies? Are schools an engine for change or are they really a prison in a way? I think there's a variety of answers to that question. The answer is always changing as we do more research. I do think that if you were to look in the literature, you would be able to find at least some evidence that students who are the most disadvantaged are the ones who get the most out of going to selective schools.

The effect of going to a selective school is heterogeneous as it were. The students who are most privileged are the ones who maybe don't get the most out of it because they were going to do really well no matter what school they went to. The students who were coming from a place of less privilege are the ones who get something out of going to a really terrific school because it wasn't clear whether they would have gotten as far without getting into the school.

Brian Lehrer: Before we move into the 1960s after the civil rights laws and more toward the present, even including the Supreme Court decision in 2023 that barred race as a factor in college admissions in most cases, let's take a few oral histories from people who are calling in, and starting with Margo in Manhattan. You're on WNYC. Hi, Margo.

Margo: Hi there. Good morning. My father graduated from Brooklyn College of Pharmacy in 1960, so it is leading into what you're talking about. His mentor encouraged him to go on to get his MD-PhD. We're Jewish and he applied far and near. He cast a really wide net and knowing full well that there was quotas against the Jews. My mother, being the person that she is, thought it would be funny.

At work one day during lunch, she typed up a fake Tulane University letterhead name and typed on it because everything they got, they said, "Mr. Lemberger, thank you for your interest. However, it is our policy not to accept pharmacy students." She typed it up and said, "Dear Mr. Lemberger, thank you for your interest in Tulane. Unfortunately, it is our policy not to accept Jews." She mailed it, put the stamp on it, dropped it in.

A couple of days later, she had forgotten all about it. Every night, he would go through a stack of these rejection letters. It's all the same thing. He gets to the last one. He holds it up. He says, "Watch. They don't accept Jews." She noticed that it was the one she'd said. She didn't warn him. He opened it and his head almost exploded. She said he lost his mind. He was going to call the president of the university. It took her 20 minutes to get him to look at the postmark that it had been sent from New York City.

Brian Lehrer: Is this some kind of practical joke is what you're saying, yes?

Margo: Was what my mom did, but it was common. He was top of his class. LIU, which is what Brooklyn College of Pharmacy is now, made him a distinguished alumni. He was on their billboard. He was the best of the best. Magna, summa cum laude every time. This was what they kept coming against because his mentor would call and ask why he wasn't accepted. They would tell him flat out because he's Jewish.

Brian Lehrer: They would tell him flat out. All right.

Margo: They would tell the mentor, who was not Jewish, flat out.

Brian Lehrer: Margo, thank you very much. What a story, Professor Stulberg.

Professor Stulberg: Yes, absolutely. Yes, I'm not surprised.

Brian Lehrer: George in Jericho, Long Island, you're on WNYC. Hi, George.

George: Hi, Brian. If certain holidays like the Martin Luther King Day and June 19th holiday are not valid federal holidays worthy of the service academies, then we should stop with the halfway measures and simply repeal those days altogether as federal holidays.

Brian Lehrer: George, I hear your sarcasm, I guess, and your indignation. Well, honestly, that wasn't an oral history call about inclusion and exclusion in college admissions but referring to one of the things that I mentioned in the intro to this segment about the banning at West Point and other military academies by the Pentagon now of any clubs centered on ethnicity, gender, race, and sexuality, or the observances of any holidays such as Martin Luther King Day or Black History Month or Holocaust Remembrance Day.

We will get back to that toward the end of the segment with our guests as we go through something of a history timeline as we do in this 100 Years of 100 Things series, chosen in many cases as this one, to link to things that are going on today. Let's talk a little bit about the 1960s. You two can decide who wants to take this one. You wrote in a joint article that as with the civil rights movement of the '60s came new interest in racial diversity, in particular in higher education. You cite a City College of New York psychologist, Kenneth C. Clark, as a key figure in that decade. Whoever wants it, who was Kenneth C. Clark and what did he advocate for?

Professor Chen: I can take this one. Kenneth Clark is the famous psychologist who did the doll experiment for the Brown cases in the '50s. He was quite active in the 1960s, both continuing to do his research and also in the civil rights movement. He's an important figure because he was one of several Black intellectuals who made the case that it was important to take special measures in 1963 and '64 to achieve racial equality in the United States in a variety of different arenas.

He was also one of the Black intellectuals who tried to make the case that diversity was something valuable in college education, that having a diverse student body conferred important educational benefits to the students going to school. In our book, we talk about a moment when he is at Mills College out in Oakland, giving an address to the students there and extolling the importance of having a lot of different kinds of students on campus as the world is getting more global in nature.

Also, around the same time in 1963 in an article published in the US News & World Report, Kenneth Clark talked very adamantly about the importance of essentially taking affirmative action. He didn't use the terminology quite exactly. He didn't actually use the phrase "affirmative action" yet, but he did refer to the importance of taking special measures to compensate African Americans for the discrimination that they had suffered so that they would have the opportunity to compete on equal terms with other Americans.

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Brian Lehrer: Well, go ahead and finish your answer and then I want to ask you a follow-up question about precisely that, but go ahead.

Professor Chen: Sure thing. One of the things that gets overlooked about the civil rights movement, especially the apotheosis of the movement in 1963 with the Birmingham confrontation and the march on Washington and King's speech on the steps of the Lincoln Memorial, is that people were struggling not just for equal treatment. They were also struggling to try to take advantage of the moment to work out a path to racial inequality in the years to come. There was a sense that just treating people equally wasn't going to be enough to fulfill the aspirations of not just African Americans but Americans' own aspirations about what their country stood for.

Brian Lehrer: Right.

Professor Chen: Men like Kenneth Clark, but also men like Roger Haynes, who was a white administrator at the University of Michigan, or men like Jim Perkins, who was the president of Cornell University, an interracial group of leaders in a variety of different walks of American life began to explore the idea that freedom was not enough, to borrow a phrase from LBJ, that it was important to do something more. It wasn't clear what that "more" thing was. It could be a lot of different things. There was a willingness, I think, even as early as 1963 and '64 on the part of some liberals anyways, to explore doing something more than just having the government ensure non-discrimination.

Brian Lehrer: Just as a footnote, what was that dolls experiment that you were referring to that Kenneth collected?

Professor Chen: Isn't it the one where, in the Brown cases, there was an experiment presented by a psychologist? It showed that Black children tended to pick the white dolls. It was inferred from that experiment that segregation had damaging effects on--

Brian Lehrer: Even Black children tended to pick the white dolls when given a choice?

Professor Chen: Yes.

Brian Lehrer: My actual follow-up question was, given what you were just describing, were there really two different threads happening at the same time by the 1960s of moving toward more diverse college student bodies? The idea of diversity as being good as an environment for all students, as maybe the dean of Harvard in the '50s was trying to advocate, just diversity as being good as an environment for its own sake or for all students and what you were just describing as a separate thing perhaps, the idea of giving a hand up to Black Americans specifically who had, of course, officially and unofficially been discriminated against for so long.

Professor Chen: That's such a perceptive observation on your part, Brian. There are, in fact, two distinct rationales that are developing at first separately but then come together in 1963. As we were saying a moment ago, as early as 1961, 1962, you had men like Wilbur Bender, men like Henry Coleman at Columbia. Wilbur Bender's at Harvard. I'm using men on purpose because they were all men. Men like Calvin Plimpton at Amherst, men like John Kemeny at Dartmouth stressing the importance of not admitting well-rounded individuals to college but having a well-rounded college. That required admissions officers to let in lots of different kinds of students.

That's one development is the notion that having a diverse student body is really valuable. The other one is the civil rights movement we just got done talking about where a group of Black and white intellectuals began to work out the idea that was important to do something more than non-discrimination if we were to reach inequality in our lifetimes. Those two forces came together in 1963 so that private colleges especially began to value diversity even more. They placed a special emphasis on racial diversity. That's where the two streams come together into a much more familiar discourse, familiar to us anyways.

Brian Lehrer: As we continue into the 1970s, in a few minutes, we'll talk about a landmark court ruling that seemed to accept one of those rationales for diverse college admissions and reject the other, bringing us closer to where we are today legally. Let's take another oral history call from Ann on Staten Island first. Ann, you're on WNYC. Hello.

Ann: Good morning. I'm a very loyal listener to your program. Thank you very much. I think that you will find this very interesting. I attended Hunter College when it was still on Park Avenue downtown before Lehman College from '64 to '68. I live on Staten Island. I was one of about 22. I think it was 22 students from Staten Island who had been accepted. It was a very challenging application. I remember I had to have three references. I had an 89 average, which just about was the cutting point. I applied to be an English major and I was accepted.

Brian Lehrer: Just for reference for our listeners, you're talking about the period we were just discussing with our guests. The mid-1960s, right?

Ann: Right, right, and I was there from '64 to '68. I still remember the first day when the provost spoke to 700. We were a freshman body of 700. He said, I'll never forget this, "Look around. Look behind you. Look in front of you. Half of you will be gone in January." That was the distressing comment he made to us. Also, being a very observant person, I looked around and I counted 10 Black people in that vast auditorium. When I started classes in the fall, there was one Black woman, a young woman who was an English major. The only Black professor was the sociologist, the sociology department.

That's where I experienced an epiphany because he had us read Kenneth Clark. He had us do our own investigations. What we discussed after, I would say, maybe the third or fourth week, we had discovered speaking with the registrar that it was not discrimination. It was a lack of applications from people of color. We had students who were paying a lot from international exchange students. I was going free tuition, registration, and books, and, of course, transportation. I thought you might find that very interesting. There was a dearth of applications from people of color.

Brian Lehrer: Well, did they attribute that to anything, I'll give our guest a chance to do that, to a lack of equal primary education before the college level that would feed applications to selective Hunter at that time?

Ann: You want me to answer that?

Brian Lehrer: Yes, Ann. I'm just curious.

Ann: I'm sorry. Okay, I'll listen.

Brian Lehrer: Okay. Professor Chen, was that you jumping in?

Professor Chen: It was. I don't have any evidence directly about the CUNY system, but I can speak more broadly about what's happening at this moment at other institutions of higher education. It is definitely the case that they didn't have as many applications as they wanted. Part of what they attributed that to was the fact that education was unequal racially across the United States, but even in the states of the Midwest and the West and the North, which did not have Jim Crow segregation.

A lot of African-American students didn't meet certain qualifications that were expected of all applicants. The other factor they pointed to was simply that the idea that a lot of these African-American students, elementary students, middle school students, high school students felt like they would never get a fair shake in college, that society wasn't made for them. They didn't actually try to work out a plan for getting into college because it was so far beyond the pale for them.

Part of the motivation for affirmative action was to look at whether or not the requirements that schools were imposing were actually necessary for students to succeed after they've had a chance to go there for a while. These experimentally affirmative action programs in the mid to late 1960s were all designed to find out, do we really have to observe this strict cutoff for an SAT score? Do we have to really observe this requirement for Latin or do we have to really observe this requirement for a certain GPA?

Can students who show other signs of capability actually make it through the program just fine without having to jump through these hurdles? CUNY launched the College Discovery Program in the summer of 1964, which is the summer before our guest matriculated. I'm not quite sure if there were any students that flowed into-- was it Hunter College through the College Discovery Program?

Brian Lehrer: Yes.

Professor Chen: That's when it got off the ground. If our guest had matriculated in '65 or '66 or '67, maybe the class would have looked a little bit different.

Brian Lehrer: We'll continue in a minute and we'll bring it up to the present in our remaining minutes, including the Supreme Court decision in 2023, which hung its ban on race-based affirmative actions, at least to a meaningful degree, on anti-discrimination against Asian applicants. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC with just five minutes left for today's 100 Years of 100 Things segment, topic number 71, which, yes, we're doing as part of our observance of Black History Month, 100 years of inclusion and exclusion in college admissions with Anthony Chen, sociology professor at Northwestern, and Lisa Stulberg, professor of Sociology of Education at NYU. They're writing a book together on the origins and political development of race-conscious affirmative action in college admissions.

Professor Stulberg, if you can give us literally a 30-second take on the 1978 Supreme Court decision known as Bakke, would it be accurate to say that the court at that time accepted the "diversity is good for everybody" rationale for having any kind of affirmative action but rejected the making up for discrimination in the past against Black Americans?

Professor Stulberg: Yes, in a very divided opinion, Justice Powell's opinion won out as the majority opinion. He really stressed that the diversity rationale was the constitutional reason why schools could continue to take race into account affirmatively, that diversity was a compelling state interest, that it was in the school's interest and students' interest and the country's interest to have diverse student bodies that could learn from each other. That consolidated the rationale in that way.

Brian Lehrer: Then even that mostly got struck down by the court in 2023. Professor Chen, we talked in the beginning of the segment about the policies 100 years ago limiting Jews at Harvard because they were seen as becoming too numerous. This case was argued partly on the basis of protecting the Asian-American applicants who, because of merit, were becoming so numerous at Harvard and elsewhere. How would you compare the two eras and goals and the way advocates on either side use those comparisons?

Professor Chen: That's a great question. It's certainly true that in the Harvard case, Asian Americans were front and center. It's also true that some interlocutors on one side of the debate really played up the analogy between Asian Americans today and Jews in the 1920s. From where I sit, the analogy is inapt. I think it's pretty clear from the research of Jerry Karabel especially that there were quotas imposed on Jews by the Ivy League colleges in the 1920s, and that it was ethnic, religious, and racial animus that motivated them.

The evidence in the case of Asian Americans is actually not nearly as strong, but you wouldn't necessarily know it if you just read the Supreme Court's decisions, if you just read SFFA released in 2023. To really see how weak the evidence is, you have to read the trial court opinions. You have to read the opinion of Allison Burroughs and Loretta Biggs, who conducted bench trials in each of those cases and heard voluminous evidence of what exactly Harvard was doing, what exactly UNC was doing, whether it was applying stereotypes to Asian Americans, whether Asian Americans had a statistically lower chance of getting admitted than applicants of other backgrounds, controlling for all kinds of different characteristics.

The trial courts didn't find statistical or non-statistical evidence of discrimination against Asian Americans. The trial courts are in the best position to find such discrimination if such discrimination is occurring. They're the folks who are sitting there listening to all the testimony. They're the ones who get to ask the experts questions when they're not sure what is being modeled statistically.

Then the findings of Burroughs in particular on the Harvard case were essentially upheld by the First Circuit Court of Appeals if memory serves, which essentially did not correct any factual errors on her part and issued a set of legal findings that were quite parallel to the ones that she drew herself. The SFFA is a surprising case where the plaintiffs really kept getting knocked down at every level of the court system only to have their Hail Mary work out in the end.

Brian Lehrer: Which brings us more or less to the present at the end of this 100 Years of 100 Things history segment. Professor Stulberg, Professor Chen, thank you so much for joining us.

Professor Stulberg: Thank you.

Professor Chen: Our pleasure. Thank you.

 

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