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Court-Packing in Context

Barry Cushman | University of Notre Dame

Jonathan Feingold discusses how common institutional dynamics disincentivize elite universities from marshalling the most compelling case for their own policies.

Image courtesy of interviewee. May 1, 2024

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This video video discusses the political and legal precariousness of affirmative action policies in the United States, particularly in relation to elite universities like Harvard and UNC. It highlights that despite being defenders of affirmative action in recent Supreme Court cases, these institutions have displayed ambivalence towards such policies, primarily due to a combination of commitment gaps, conflicting institutional interests, and risk aversion.

There is recognition that these universities enjoy societal prestige and that access to them is seen as a way to mitigate socioeconomic disparities. Nonetheless, the universities have faced criticism for not robustly defending affirmative action, particularly when they have been implicated in controversies regarding the treatment of scholars of color.

This video video also explores the role of civil rights organizations and students of color in advocating for affirmative action, emphasizing their challenges in intervening in legal cases. It argues for the importance of effective advocacy by institutions, framing affirmative action as a necessary countermeasure against systemic racial inequalities.

Three main reasons for universities' ambivalence are identified:
1. **Commitment Gaps:** Schools have a history of failing to fully embrace inclusive policies, which has resulted in weak legal defenses.
2. **Conflicting Interests:** Universities may prioritize their elitism and prestige over a strong commitment to diversity.
3. **Risk Aversion:** Institutions may fear liability if they examine their own admissions processes closely, leading to a reluctance to address potential biases.

This video video concludes with a call for more introspection within universities to better articulate the necessity for affirmative action, especially in light of broader societal issues of inequality and racism. It also touches on ongoing campus tensions surrounding other social justice issues, indicating a complex environment where institutional commitments may conflict with various social pressures.

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There's a, a broad insight, which is

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that affirmative action policies have long been politically

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fragile and legally vulnerable.

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And one story is

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that this precarity is just something inherent

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to any redistributive or remedial policy.

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And there, there's a truth to that.

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But that story misses a distinct source

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of affirmative action's, longstanding precarity,

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at least in the United States context,

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and is that some of the affirmative action's,

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most powerful ad advocates have always been

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ambivalent about affirmative action.

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And that includes institutions like Harvard and UNC.

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And what that means is that over decades of failure,

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both in the court of law

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and the court of public opinion for elite universities

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to marshal the most compelling case

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for affirmative action means that these policies are,

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again, politically, precarious.

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And so specifically, how do Harvard and UNC come in?

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Why are they, why do I suggest they're members

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of this exclusive club?

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Well, part of it is

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that they were the two defendants in recent litigation

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that reached the Supreme Court

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regarding their respective affirmative action policies.

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And in that context, they were formally, as a matter of law,

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affirmative actions defenders.

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And one might therefore think, therefore think that Harvard

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and UNC would zealously defend affirmative action

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because it was after all their own policies.

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That assumption is one that we should actually be, be

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with a little bit of skepticism.

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And one reason why is that in the same period

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that the litigation was ongoing, both

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of those schools made national headlines

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for mistreating scholars of color.

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The UNC example, I think got most of the,

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or comparably more attention

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with a huge debacle in which the board of trustees,

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which is, sort of behind the scenes entity

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that governs the UNC system,

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effectively organized against granting tenure

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to Nicole Hannah Jones, in part

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because you had conservative activists

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and donors in the state and some on the board

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who didn't like her ground ba breaking 1619 project.

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Yet at the same time, that same institution with

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that same board of trustees is in the spotlight

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representing affirmative action, this inclusionary policy

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before the Supreme Court.

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With respect to cultural norms,

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elite universities in the United States remain objects

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of public obsession.

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It's probably not a great thing,

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but I think it's descriptively true.

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Um, and part of it is that these institutions continue

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to enjoy societal prestige, even if they're also targets

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of attack by different, political,

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entities in the United States.

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But they are, they do enjoy that prestige.

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And there's also, I think, real recognition

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by most Americans that we have become a society

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that is deeply divided socioeconomically.

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There are massive wealth disparities.

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And so if you're a family, if you're parents,

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you view access to these institutions as something

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that can buffer your kids

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and yourself against all the precarious

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that come from living in a society

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that really does not support its people.

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And due to those factors, elite universities,

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that they do capture the public's attention, which means

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that they really do enjoy a special status

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to influence public debate on issues of pressing concern.

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So that's the cultural side.

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With respect to legal doctrine,

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whatever a university is sued, legally challenged for one

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of its policies, whether it's affirmative action policy or

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otherwise, the university becomes the formal defendant

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throughout the litigation that enables the university

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to frame the issue, to produce evidence,

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and to decide how to respond to its opponent's arguments.

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But the reality is, when it comes to affirmative action,

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universities are not the only entity

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or individual with a stake in this fight.

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Specifically, students of color, communities of color

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and civil rights organizations have always been deeply

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invested, not just in affirmative action,

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but broadly in any sort of inclusionary effort or policy.

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But as a matter of law, there are procedural rules

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that make it hard for these third parties to,

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what we would call intervene into the lawsuit.

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They have to overcome formal, barriers.

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Now that doesn't stop them from trying.

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And so both in the Harvard

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and UNC litigation, civil rights law firms

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represented students who attempted to intervene

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and achieved varying degrees of success.

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But as I explained,

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the interveners played an a crucial role in adding new

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evidence and new arguments to the litigation that Harvard

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and UNC would not have brought by themselves.

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Before I turn to the dynamics that drive this ambivalence,

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I think it's worth, asking,

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what would be the best argument

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for affirmative action and why does it matter?

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So part of the reason why it matters is

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because legal battles over affirmative action like the one

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that recently reached the Supreme Court, are often,

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sites where the public is actually litigating broader

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questions and competing theories about why equality

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continues to exist in the United States.

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What is the ongoing relevance of race and racism?

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Has United States the society, have individual institutions

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actually overcome our collective

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or individual legacies of racial exclusion?

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Um, and arguments against affirmative action tend

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to assume sometimes implicitly,

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sometimes it's quite explicit that race is not relevant,

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that racism does not exist until the moment in a,

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a university, an institution

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formally considers racial identity.

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It's a common claim.

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It's not empirically supportive, but it's common.

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A compelling response

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or a joinder would be

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that race remains a powerful determinant in United States

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society in ways that probabilistically benefit

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in the admissions context.

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A white and often wealthy applicants affirmative action

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in turn is best understood as a countermeasure, a form

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of anti-discrimination

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that buffers against this unearned racial preference

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that white applicants, would otherwise enjoy.

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Neither Harvard nor UNC talked about affirmative action

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as a countermeasure, as a way

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to actually promote not just a more inclusive,

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but also a more fair,

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more meritocratic process in which race

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is actually less relevant.

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So the question is why,

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and there's at least three reasons, that I look to.

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The first is commitment gaps.

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So if you just think about the United States in the mid 20th

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century after Brown, how did

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institutions like UNC who at the time had dejure policies

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of segregation, they were formally

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excluding non-white students.

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The response to Brown was to organize against Brown

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to call Brown v Board of Education, illegitimate use

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of patient empowered by the Supreme Court,

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and essentially say, no.

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It's why UNC as an example, did not desegregate

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as a formal matter it's undergrad institution

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until litigation after Brown,

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because the university said, we are not gonna comply.

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We don't think it applies to us,

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or We have a commitment to our preexisting racial order.

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Now, that's a really sort

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of vast difference from the way in which your sort

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of standard historically white institution like Harvard

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and UNC today is committed

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to policies like affirmative action.

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And it's not just that they don't bring the strongest case

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in litigation, but what we have seen is since SFFA,

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the litigation involving Harvard

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and UNC universities across the country

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have been jettisoning all sorts of inclusionary practices,

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even ones that have nothing to do with admissions

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and ones that are not facially race conscious, meaning

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that they were not within the scope of SFFA.

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So the first explanation is

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that there's actually differences with respect to commitment

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between institutions that are

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formally committed to exclusion.

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And those, committed to inclusion.

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Another explanation as to why universities like Harvard

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and C and UNC are ambivalent in their

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advocacy for affirmative action.

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They actually perceive that advocacy

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as in conflict with other interests.

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And so you can think about this in part that,

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with brand goals, just how these institutions want

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to be perceived societally, one desire is

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that they actually care about their elitism,

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they care about their prestige.

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And one thing that that does is it incentivizes universities

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to play different games, including how to climb the ladder

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of the US News and World Report rankings.

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Now, one thing that's commonly known is

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that those rankings overvalue certain metrics like

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standardized test scores, which as is well known,

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tend to understate the existing talent

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of students from negatively stereotyped groups

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and actually inflate the ostensible, merit of

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privileged students, including wealthy white applicant.

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So there's this conflict, if you're an elite university

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and you want to climb the rankings, you want students

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that are doing performing well in these metrics

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that are actually undermining your goal of inclusion,

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and, merit.

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But it's also that brand goals, particularly for a lot

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of the elite institutions, is wanting to project the image

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of being on the side of racial justice, wanting

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to be seen publicly as a site of racial inclusion,

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actually caring about diversity.

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But if you wanna make the strongest case

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for affirmative action, you have to really grapple

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with all the ways in which the structural dimensions

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of racism don't just manifest societally,

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but also continue to manifest in your institution.

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That requires the sort of work and introspection

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and republic accountability that a lot

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of these institutions do not want to engage in.

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And it's why we continue to see them fail

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to marshal the most robust case for their own policies.

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When it comes to another reason why universities tend to

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not make the strongest case work,

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affirmative action is risk aversion, at least in the context

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of policies where they're already ambivalent about it.

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And so again, if you're asking the question, well,

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how could you as a university make the strongest case

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for taking race to into account during admissions?

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Well, one thing that you might want

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to look at really interrogate are

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what are the precise ways in which all the other aspects

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of your admissions process are systematically excluding

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talented students who aren't white?

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But when you do that, when you actually, obtain

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that evidence, it could expose you to litigation

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for employing practices

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that have a racially disparate impact against students

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of color and are not justifiable from an educational

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or pedagogical, perspective.

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And that then is going to expose you

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to liability under Title vi not through, direct cause

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of action from a a Grieve student,

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but from, the Department of Education, the Office

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of Civil Rights, if they see evidence

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that you are employing admissions processes that again,

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are unjustifiably leading to a disparate impact.

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Um, and that, calls all sorts of things into question

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one, implication for future research.

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And another, sort of conclusion that the question

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for future research is just not to take for granted the fact

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that inclusionary redistributive policies just inherently,

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precarious politically

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otherwise that the American public just happen, happens

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to be ambivalent about these practices.

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One of the reasons that I think deserves a lot more

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attention is that many of the advocates

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of affirmative action continue to unwittingly, I think,

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reproduce the same talking points

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that affirmative action advocates actually

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strategically deploy.

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And so part of the question is

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how can researchers further surface the ways that defenders

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of inclusionary practices are unknowingly,

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reifying frames that undermine those very practices?

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And then just when it comes to institutional

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Commitments. So right

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now in the United States, as we are talking

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campuses are, not literally in flames,

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but figuratively in flames as students are protesting,

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Israel's ongoing military campaign in Gaza.

12:10.625 --> 12:15.165
And what we have seen is, a swift seeming,

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reflexive, response from many university leaders

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that are quite, nakedly,

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violating all sorts of free speech principles,

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if not laws in ways that don't apply another context.

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And so just another site in which we see differing,

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institutional priorities coming

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to a head in which we're seeing the fact

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that inclusionary practices, and policies,

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and commitments are just one of a number of commitments

12:43.645 --> 12:46.325
that, anime and inform institutional governance.

Affirmative Action's Political Fragility Explained

00:00:00 - There's a, a broad insight, which is that affirmative action policies have long been politically fragile and legally vulnerable. And one story is that this precarity is just something inherent to any redistributive or remedial policy. And there, there's a truth to that. But that story misses a distinct source of affirmative action's, longstanding precarity, at least in the United States context, and is that some of the affirmative action's, most powerful ad advocates have always been ambivalent about affirmative action. And that includes institutions like Harvard and UNC.
00:00:35 - both in the court of law and the court of public opinion for elite universities to marshal the most compelling case for affirmative action means that these policies are, again, politically, precarious. And so specifically, how do Harvard and UNC come in? Why are they, why do I suggest they're members of this exclusive club? Well, part of it is that they were the two defendants in recent litigation that reached the Supreme Court regarding their respective affirmative action policies.
00:01:07 - affirmative actions defenders. And one might therefore think, therefore think that Harvard and UNC would zealously defend affirmative action because it was after all their own policies. That assumption is one that we should actually be, be with a little bit of skepticism. And one reason why is that in the same period that the litigation was ongoing, both of those schools made national headlines for mistreating scholars of color.
00:01:37 - or comparably more attention with a huge debacle in which the board of trustees, which is, sort of behind the scenes entity that governs the UNC system, effectively organized against granting tenure to Nicole Hannah Jones, in part because you had conservative activists and donors in the state and some on the board who didn't like her ground ba breaking 1619 project. Yet at the same time, that same institution with that same board of trustees is in the spotlight
00:02:07 - before the Supreme Court. With respect to cultural norms, elite universities in the United States remain objects of public obsession. It's probably not a great thing, but I think it's descriptively true. and part of it is that these institutions continue to enjoy societal prestige, even if they're also targets of attack by different, political, entities in the United States. But they are, they do enjoy that prestige. And there's also, I think, real recognition
00:02:37 - that is deeply divided socioeconomically. There are massive wealth disparities. And so if you're a family, if you're parents, you view access to these institutions as something that can buffer your kids and yourself against all the precarious that come from living in a society that really does not support its people. And due to those factors, elite universities, that they do capture the public's attention, which means that they really do enjoy a special status

Affirmative Action: Legal Challenges and Cultural Dynamics

00:03:09 - So that's the cultural side. With respect to legal doctrine, whatever a university is sued, legally challenged for one of its policies, whether it's affirmative action policy or otherwise, the university becomes the formal defendant throughout the litigation that enables the university to frame the issue, to produce evidence, and to decide how to respond to its opponent's arguments. But the reality is, when it comes to affirmative action,
00:03:38 - or individual with a stake in this fight. Specifically, students of color, communities of color and civil rights organizations have always been deeply invested, not just in affirmative action, but broadly in any sort of inclusionary effort or policy. But as a matter of law, there are procedural rules that make it hard for these third parties to, what we would call intervene into the lawsuit. They have to overcome formal, barriers. Now that doesn't stop them from trying.
00:04:09 - and UNC litigation, civil rights law firms represented students who attempted to intervene and achieved varying degrees of success. But as I explained, the interveners played an a crucial role in adding new evidence and new arguments to the litigation that Harvard and UNC would not have brought by themselves. Before I turn to the dynamics that drive this ambivalence, I think it's worth, asking, what would be the best argument for affirmative action and why does it matter?
00:04:40 - because legal battles over affirmative action like the one that recently reached the Supreme Court, are often, sites where the public is actually litigating broader questions and competing theories about why equality continues to exist in the United States. What is the ongoing relevance of race and racism? Has United States the society, have individual institutions actually overcome our collective or individual legacies of racial exclusion? and arguments against affirmative action tend
00:05:13 - sometimes it's quite explicit that race is not relevant, that racism does not exist until the moment in a, a university, an institution formally considers racial identity. It's a common claim. It's not empirically supportive, but it's common. A compelling response or a joinder would be that race remains a powerful determinant in United States society in ways that probabilistically benefit in the admissions context. A white and often wealthy applicants affirmative action
00:05:46 - of anti-discrimination that buffers against this unearned racial preference that white applicants, would otherwise enjoy. Neither Harvard nor UNC talked about affirmative action as a countermeasure, as a way to actually promote not just a more inclusive, but also a more fair, more meritocratic process in which race is actually less relevant. So the question is why, and there's at least three reasons, that I look to.

UNC's Historical Resistance to Racial Inclusion

00:06:15 - So if you just think about the United States in the mid 20th century after Brown, how did institutions like UNC who at the time had dejure policies of segregation, they were formally excluding non-white students. The response to Brown was to organize against Brown to call Brown v Board of Education, illegitimate use of patient empowered by the Supreme Court, and essentially say, no. It's why UNC as an example, did not desegregate
00:06:47 - until litigation after Brown, because the university said, we are not gonna comply. We don't think it applies to us, or We have a commitment to our preexisting racial order. Now, that's a really sort of vast difference from the way in which your sort of standard historically white institution like Harvard and UNC today is committed to policies like affirmative action. And it's not just that they don't bring the strongest case in litigation, but what we have seen is since SFFA,
00:07:17 - and UNC universities across the country have been jettisoning all sorts of inclusionary practices, even ones that have nothing to do with admissions and ones that are not facially race conscious, meaning that they were not within the scope of SFFA. So the first explanation is that there's actually differences with respect to commitment between institutions that are formally committed to exclusion. And those, committed to inclusion. Another explanation as to why universities like Harvard
00:07:51 - advocacy for affirmative action. They actually perceive that advocacy as in conflict with other interests. And so you can think about this in part that, with brand goals, just how these institutions want to be perceived societally, one desire is that they actually care about their elitism, they care about their prestige. And one thing that that does is it incentivizes universities to play different games, including how to climb the ladder of the US News and World Report rankings.
00:08:21 - that those rankings overvalue certain metrics like standardized test scores, which as is well known, tend to understate the existing talent of students from negatively stereotyped groups and actually inflate the ostensible, merit of privileged students, including wealthy white applicant. So there's this conflict, if you're an elite university and you want to climb the rankings, you want students that are doing performing well in these metrics
00:08:54 - and, merit. But it's also that brand goals, particularly for a lot of the elite institutions, is wanting to project the image of being on the side of racial justice, wanting to be seen publicly as a site of racial inclusion, actually caring about diversity. But if you wanna make the strongest case for affirmative action, you have to really grapple with all the ways in which the structural dimensions of racism don't just manifest societally,

Universities' Dilemma: Risk and Accountability in Admissions

00:09:24 - That requires the sort of work and introspection and republic accountability that a lot of these institutions do not want to engage in. And it's why we continue to see them fail to marshal the most robust case for their own policies. When it comes to another reason why universities tend to not make the strongest case work, affirmative action is risk aversion, at least in the context of policies where they're already ambivalent about it.
00:09:54 - how could you as a university make the strongest case for taking race to into account during admissions? Well, one thing that you might want to look at really interrogate are what are the precise ways in which all the other aspects of your admissions process are systematically excluding talented students who aren't white? But when you do that, when you actually, obtain that evidence, it could expose you to litigation for employing practices that have a racially disparate impact against students
00:10:27 - or pedagogical, perspective. And that then is going to expose you to liability under Title vi not through, direct cause of action from a a Grieve student, but from, the Department of Education, the Office of Civil Rights, if they see evidence that you are employing admissions processes that again, are unjustifiably leading to a disparate impact.
00:10:59 - one, implication for future research. And another, sort of conclusion that the question for future research is just not to take for granted the fact that inclusionary redistributive policies just inherently, precarious politically otherwise that the American public just happen, happens to be ambivalent about these practices. One of the reasons that I think deserves a lot more attention is that many of the advocates
00:11:31 - reproduce the same talking points that affirmative action advocates actually strategically deploy. And so part of the question is how can researchers further surface the ways that defenders of inclusionary practices are unknowingly, reifying frames that undermine those very practices? And then just when it comes to institutional Commitments. So right now in the United States, as we are talking
00:12:02 - but figuratively in flames as students are protesting, Israel's ongoing military campaign in Gaza. And what we have seen is, a swift seeming, reflexive, response from many university leaders that are quite, nakedly, violating all sorts of free speech principles, if not laws in ways that don't apply another context.

Conflicting Commitments in Institutional Governance

00:12:43 - institutional priorities coming to a head in which we're seeing the fact that inclusionary practices, and policies, and commitments are just one of a number of commitments that, anime and inform institutional governance.

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