David Remnick: Welcome to The New Yorker Radio Hour. I'm David Remnick.

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Speaker 2: You'll hear our argument next in Case 201199, students for fair admissions versus the president and fellows of Harvard College.

David Remnick: Sometime soon, in the next few months, the supreme court is expected to hand down a landmark ruling on the future of affirmative action. Oral arguments took place last October. In one case, an advocacy group has sued Harvard University saying that any consideration of race violates part of the 1964 Civil Rights Act. Here's the lead attorney for Harvard being questioned by Chief Justice Roberts.

Harvard Lead Attorney: There is no doubt as the testimony showed that for applicants who are essentially so strong on multiple dimensions, that they are on the bubble that they might be a real candidate for admission. Being African American, or being Hispanic, or in some instances, being Asian American can provide one of many, many tips that will put you in.

Chief Justice Roberts.: People say that yes but you will have to concede if it provides one of many, then in some cases, it will be determined.

Harvard Lead Attorney: I do. I do concede that.

Chief Justice Roberts.: We're talking about race as a determining factor in admission to Harvard.

David Remnick: 20 years ago, the Supreme Court upheld affirmative action. The decision was written by Sandra Day O'Connor, a Republican appointee. Now in 2023, the conservative majority in the court is likely to reverse precedent as it did in Roe versus Wade and end the practice of affirmative action.

Harvard Lead Attorney: Race for some highly qualified applicants can be the determinant factor just as being an oboe player in a year in which the Harvard Radcliffe orchestra needs an oboe player will be the tip.

Chief Justice Roberts.: We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination. That's why it's a matter of considerable concern.

David Remnick: There are actually two cases being decided and they may have a profound impact on generations of students. I'm going to talk today with two long-serving university presidents who have had front-row seats to this battle. First, I want to talk with someone who's already been dealing with this situation in an admissions office. Femi Ogundele is Dean of Undergraduate Admissions at the University of California at Berkeley. In California, public colleges ended any consideration of race a full generation ago.

Femi Ogundele: When we are reviewing applications at the University of California at all of those schools, we are unable to see an applicant's race or gender in the actual applicant file.

David Remnick: In fact, California, ostensibly liberal California, was the first state to ban affirmative action. That happened in 1996, with a ballot initiative known as Proposition 209. Shortly after that, the percentage of Black and Latino students admitted to Berkeley fell sharply. Now, how did you react when you first got the news that this would be the case in your life going forward?

Femi Ogundele: I'll be honest with you. My entire background has been doing multicultural recruitment work in a variety of institutions. Prior to my time at Cal, I was at Stanford University here in California in the Bay Area and I had not heard of Prop 209 when I was at Stanford. That's because Stanford and the private institutions in California are not required to adhere to Prop 209. It wasn't until I started interviewing and doing my research on Cal prior to taking the job that I understood what Prop 209 was, and more importantly, how it was impacting the university system.

I took a look at some of the research and some of the reports that really showed that despite millions of dollars of investment that has come from the state and really strong efforts across the institutions, that ever since Prop 209 happened, we saw a significant decline in Black and Latinx students being admitted to the UCs and there hasn't really been a strong rebound in that. Although there's been tons of effort and there's been some gains, they have not rebounded to the pre-Prop 209 numbers.

David Remnick: It is very likely considering the composition of the President's Supreme Court that affirmative action is going to be eliminated at colleges and universities across the nation. Are you starting to hear from administrators at other schools outside of California looking to glean some modus operandi from your experience?

Femi Ogundele: Yes, absolutely. I don't think it's just the University of California. There's about eight states or so across the country right now that have affirmative action bans. I think a lot of us are being tapped on the shoulder and asked, "How are you doing what you're doing in this new kind of reality?" I just want to be very clear. I do not think that there is any race-neutral alternative to creating diversity on a college campus without being able to consider race. However, I do think that we can do better than what we've done.

What I mean by that is really just recognizing that the K through 12 experience, and I have traveled all across the state, all across the country, all across the world recruiting students, the K through 12 experience is not standard. There are varying opportunities out there. There are varying ways in which students are able to even participate in those opportunities, oftentimes delineated by socioeconomic status.

What that means for us is that when we start to consider applicants here at our institution, we have to take that context into consideration. Then when you seek broad geographic diversity, I think what you'll find is that it does allow for a much more diverse and yet equally talented group of students to emerge in your pool than before.

David Remnick: Now, if I would have walked onto the Berkeley campus today, and if I'd walked on the Berkeley campus a few years ago, would it be noticeably different?

Femi Ogundele: I know that the last couple of years, we have been able to have some of the more diverse classes that we've had since Prop 209. What I will tell you in particular, I think that Prop 209, and one of the things that I'm still working through, is I think that it particularly hurts Black students and Black applicants. I'm not exactly sure as to why but I can tell you that with all of the efforts that we've created to diversify this campus, I've seen really strong gains in pretty much every other ethnic category, except for the Black number. That is something that I'm still working my way through to try to understand how and why that is the case.

David Remnick: What other factors can you take into consideration? Are you still using the ACT and the SAT?

Femi Ogundele: No. The UC, right before the pandemic, we went test free. We are not considering the SAT or the ACT. We do still take a look at AP coursework and that is a sign of rigor. Same thing with IB, the International Baccalaureate coursework, but I also recognize that even the AP exams, there's a financial barrier. Not everybody who takes an AP class is even able to take the AP exam.

The other piece that we did add to our evaluation that came from College Board was the landscape data. Landscape is a tool that really allows you to assess context of applicants. It tells you everything around both the neighborhood that students might be coming from, percentage of free or reduced-price lunch, percentage of first-generation students that might be in high school, and other really important pieces of information.

David Remnick: Crudely put, and forgive me for this, but crudely put, in other words, you're able to guess to some extent what you before had more solidly as information about people's backgrounds.

Femi Ogundele: In a perfect world, I think that you should be able to consider both race and use something like landscape data because race is no longer a proxy the way that it used to be. I think that it's important for folks to know that Black does not mean first gen. Rural does not mean poor.

David Remnick: Let's not mince words. It sounds to me like your job in doing that, as you believe it is proper to do, got a hell of a lot harder with the elimination of affirmative action.

Femi Ogundele: A hell of a lot harder because as you can see, the institutions still value diversity as a part of academic excellence. When you take two, I think, particularly strong identifiers around diversity away, it really does put a lot of weight into us understanding these contexts to try to put together a class that is more representative of this broader term diversity.

David Remnick: One critique of affirmative action is that it disproportionately helps students of color from privileged backgrounds, middle-upper class, rather than those from poor or underprivileged communities. In your experience, at other schools in this wide experience, have you found that to be the case?

Femi Ogundele: No. Actually, I have not. Again, affirmative action to me gives you license to consider things. It does not mean that you advantage a group. That to me is where the conversation on affirmative action oftentimes gets reduced to. I can tell you that the best institutions that can consider affirmative action, some of the most selective institutions, like my time at Stanford when we talked around students, we didn't just talk about their race. We talked about their socioeconomic status. We talked about what their high school offered. We talked about, did a student go above and beyond what their high school offered and what does that look like in certain contexts.

We also talked about what does it mean to be the one and the only in an environment. Whether that is a woman in STEM, whether that is an out queer student in the Bible belt, whether that is a student in an urban environment, all of those different experiences, again, when we talk about crafting and creating community, were important to us. Those things they're still important to me. Affirmative action, I think is the beginning of the conversation. What I'm struck by is how it's become a larger conversation rather than getting people to understand what it gives license to do versus what it "makes people do or requires people to do."

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David Remnick: Femi Ogundele is the Dean of undergraduate admission at UC, Berkeley. He began there in 2019.

Interviewer 1: What role do you think race or ethnicity should play in the college admission process?

Student 1: Well, obviously it's a complicated question, none. In my opinion your race or your ethnicity or whatever other factors, like your sex, shouldn't play any role. If he passes the tests, I don't care who you are, I don't care what you represent. You're entitled to study here.

Student 2: I'm a Chinese American, and I think it's known knowledge that race-aware admissions and affirmative action is disadvantaged not just me, but a lot of other Asians as well.

Student 3: I think that affirmative action is like a bandaid in the sense that if you wanted a more systemic change to society, I think that there are more effective ways.

Student 4: I believe that my race played a huge role in my success in high school. I think that it's only fair if my race plays a role into the way that my application is viewed.

Student 5: My community was majority Hispanic, so I saw a lot of kids who were just born into families that just had less privilege, had less knowledge of the system, but who benefited from the system and now are doing beautiful things

Student 6: As a person who is actively negatively affected by affirmative action, I know I should support affirmative action, but I don't.

David Remnick: Student voices from the Columbia and Cornell University campuses in New York. We'll continue looking at affirmative action and what happens if it ends in college admissions in a moment. This is The New Yorker Radio Hour.

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David Remnick: This is The New Yorker Radio Hour. I'm David Remnick. We're looking today at Affirmative Action and what may come after affirmative action if a major Supreme Court decision ends the practice. To help think through what's at stake here, I'm joined by two very prominent university leaders. Ruth Simmons testified in the Supreme Court case Students for Fair Admissions versus Harvard. She's the former president of Brown University, and recently stepped down from Prairie View A. & M in Texas.

Lee Bollinger, when he was president of the University of Michigan, was the defendant in an earlier Supreme Court case that upheld affirmative action in 2003. He's been the president of Columbia University for many years.

David Remnick: You both have led universities and attached to this subject for many years. It means an enormous amount to you both, both personally and professionally. What is at stake now that we are facing the very very possible elimination of affirmative action in the Supreme Court?

Ruth Simmons: Well, as I said in my testimony in the Harvard case, for me, it's quite simply the question of what will become of us as a nation if we go into our separate enclaves without the opportunity to interact and to learn from each other. What will we become, what will become of us, frankly? We're seeing a lot of behavior play out today as it has in the past with regard to individuals pursuing violence against individuals that they regard perhaps as threats, perhaps as just being too different, perhaps as being not part of the country that they want to be a part of.

The point is that affirmative action and diversity helps us achieve the goal of maintaining a common framework for a very diverse nation allowing us to confer, to elect representatives to make major decisions in the direction of the country. Honestly, I should say also to live happy lives.

Lee Bollinger: It's very important to understand, I think, how the policies came into effect and how they have been opposed over many decades. What we're seeing today is, in a very important sense, what we've seen every decade since affirmative action began. Selective universities, colleges all across the United States looked at the movements of civil rights and the Brown versus Board of Education effort to desegregate schools and the Civil Rights Act and the Voting Rights Act, and all the efforts of that period, which, in many ways, was a high point in American history.

Universities said we cannot continue to have student bodies that are all white and all male. We must take steps to rectify this and do our part, which is a limited part of the whole national effort to try to overcome the legacy of invidious discrimination, especially against African Americans. That's the beginning. I would say that there are a lot of very bad motives behind the opposition to affirmative action as Ruth has articulated. There's also a completely legitimate and reasonable argument.

David Remnick: Well, let's do both of those. What are the various motivations behind the argument for case behind opposing affirmative action and bringing it down?

Lee Bollinger: I think there is, obviously, in some parts of the society outright racist motivation to try to reject the whole history since Brown versus Board of Education. There's also a misunderstanding of the sense that I lose if I'm in a world in which other people's race, ethnicity, can be taken into account. The problem there is that we take into account lots of things. We take into account geographic diversity. We want students from different parts of the United States. That's always been true in order to try to build a national polity.

David Remnick: Legacies, the size people's bank accounts, how good they are at football.

Lee Bollinger: Yes. Many many things that are taken into account. Singling out this one is problematic. However, when you have a serious, reasonable discussion about affirmative action, you hear arguments like the following. This is the most powerful in my view. We have spent a half-century, a century, a civil war before that, trying to get the society to realize that taking into account race for bad motivation, for bad purposes is something we must struggle to stop and overcome. You are asking us for an exception to that.

You're saying consideration of race for good purposes should be allowed. If we really want a colorblind society we should just say you can never in public policy take race into account and not even for good purpose.

David Remnick: Ruth Simmons, how would you counter that argument?

Ruth Simmons: Well, I would counter it with the fact that we have a lived history that proves that without some extraordinary measure like affirmative action, we will continue on a path to being an unequal society where people are treated not on the basis of their worth or their merit, but on the basis of what the color of their skin is or what their gender is or what their preference is, and so forth. That's the kind of society we have shown ourselves to be in the past. There is no overwhelming evidence that I see that we're on a path to be different from what we've done in the past.

David Remnick: In fact, in many ways, some place like liberal New York City has segregated a school system de facto-

Lee Bollinger: Yes, that's right.

David Remnick: -as any in the nation. You do hear, and I present this argument, I don't endorse it, that, "Well, wait a minute. This has been going on for decades," so-called racial preferences in higher education admissions. When does it end? Should it end? Is this open-ended, Ruth Simmons?

Ruth Simmons: I'm sure I would say we don't know. There are a lot of things that we do with uncertainty about what the endgame will actually be. I would make the argument that by continuing to do this work and to show that we endorse policies of trying to eliminate inequities, that we are speaking to generations being born, who otherwise would feel inclined to give up on the country that they're from. Now, since I lived that reality, I was born at a time when the public policy actually was quite the opposite.

I was born in rural East Texas. My parents were sharecroppers initially and later moved to the city. As a child, I understood that I had no future, that I had no opportunity to be respected for what I was and for what I could achieve. I understood that. It was spoken directly to me on a daily basis. Yet, by availing myself of education, I was able to escape hating my own country. That's what I want children being born to be able to do, to see that somebody is capable of shaping policies to prevent these pernicious practices from occurring.

I worry less about the people who are angry that their child didn't get into Columbia. I worry less about the person who's angry because they thought they should be making $50,000 a year more. I'm worried about the children who are coming into the world and what they see in terms of these policies. That's what I worry about.

David Remnick: Prairie View A&M is a historically Black university. What impact will dismantling affirmative action have on HBCUs, Ruth Simmons? Where will this take the future?

Ruth Simmons: Many people believe that it will cause many African-Americans, of course, to enroll in HBCUs. I would say that isn't the only thing that might impel them to do so. The climate itself is frightening to young people. After every incident in which African-Americans and minorities are targeted, especially in violent ways, we see consequences in the enrollment of our institutions.

It is a frightening time for many young people who did not go through the turbulent civil rights era. Therefore, some find themselves at a loss to understand why people hate them and why people would deny them basic rights. Many people believe, and frankly, some anticipate with glee, that this will cause students to go into HBCUs and other minority-serving institutions in higher proportion.

I'm less enthusiastic about that outcome, I have to tell you, because you cannot believe that this country needs to learn how to interact across many forms of difference to survive and thrive, and think it's a good idea for every Black person to be in a Black institution. It just isn't. I think we should be very cautious in celebrating the fact that African-Americans might flee to our institutions. I think we ought to uphold the standards that we held so dear during the period of integration, and insist that we have to be as true to those standards as anybody else that we castigate for not being true to them.

David Remnick: You sometimes hear the argument that what's most important is economics, not race, and the best thing to do for any kind of affirmative action would be to affirmatively focus on admissions for people who did not have economic opportunity, above all. How do you answer that? Maybe Lee Bollinger?

Lee Bollinger: The argument is, as you put it, you can still have racial and ethnic diversity but consider socioeconomic status, and then you won't be having to focus on race, ethnicity, and you'll be able to have both things. You'll do good for people who are facing an unequal world in socioeconomic ways, and you will have racial and ethnic diversity. There has been a lot of scholarship on this and a lot of, again, actual examples. The truth is, if you cannot consider race and all you know is the socioeconomic standing of the applicant, you are much more likely to admit another white student. That's just the reality.

David Remnick: Ruth Simmons?

Ruth Simmons: How could one quarrel with considering economic circumstances to give a leg-up to candidates? Who would say that isn't something that would be admirable to do? There's just one problem with that, and that is, we still are not answering the question of what we do about a society that for all of its advantages, is still deeply divided. What are we thinking in this country, if we believe that we really should ignore every particularity of an individual when we're making these decisions?

Instead, we should be bringing people together, to help them understand how to form a nation that truly can live up to its ideals. How will we do that if we don't consider all of these attributes?

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David Remnick: Lee Bollinger, Ruth Simmons, thank you so much.

Ruth Simmons: Thank you.

Lee Bollinger: Thanks, David.

David Remnick: The Supreme Court's decision in Students for Fair Admissions v Harvard is expected sometime this spring.

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