What does the SCOTUS decision on affirmative action have to do with the Don't Say Gay bills, book bans, and attacks on school curricula all over the country? How is is part and parcel of a certain White supremacist libertarianism? What are the ramifications for how we think of education and the ways our professional and legal domains are organized?
Brad and Dan answer these questions and more in the Weekly Roundup.
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Welcome to Straight White American Jesus.
My name is Brad Onishi, faculty at the University of San Francisco.
And guess what, people?
Guess what?
For like the second time in four years, I'm recording today, the Weekly Roundup, in the same room as my co-host, Dan Miller.
So I am Dan Miller, Professor of Religion and Social Thought at Landmark College, and yes, we are in my home office.
The digs are impressive.
We have books around us and random kid toys that are also in my home office.
It is cool to be in the same space, though.
It doesn't happen very often, so it's cool to literally be with you, Brad.
Well, I am not only looking at a lot of impressive books, but I'm looking at just this pristine closet full of cargo shorts, which just all arrays, types, styles.
It's, yeah, it's a whole thing.
It's really good.
And I'm wearing them now.
I literally have cargo shorts on now.
So that's just how I roll.
I am here.
My in-laws live nearby.
It's a long story, but there's a Taking a trip back east on semi-short notice, but that's been a good one.
But anyway, the really amazing part, other than getting to hang with family, is getting to do this in person with you, Dan.
It's a rare treat.
We get to hang, so we see each other often across the screen, but now here we are.
So, we do have some tough news to talk about, as usual, and things that are pretty near and dear to our heart, just because we are in education and people that are with students and others quite often.
And so today I think we're going to spend the bulk of our time talking about the Supreme Court and its ruling on affirmative action and the basic idea that you cannot use race in college admission decisions.
So there's a lot to talk about here, like a lot.
And I think we can just dig in.
I mean, we're going to go, we're going to talk about how this affects other sectors of American society.
We're going to talk about what this means in terms of The ongoing attacks on LGBTQ people and the ways that there are policies being set up to not talk about the existence of gay, lesbian, trans folks.
Well, this is, it may not seem like it, friends, but we're going to explain how this is part and parcel of that whole movement.
And it's just one part of the family tree of attacks on marginalized folks in the country.
But let's start here, Dan, and then I'll throw it to you.
Here is Justice Sonia Sotomayor writing in the dissent to the now infamous decision against affirmative action and race in college admission decisions.
The absence of race-conscious college admissions will decrease the pipeline of racially diverse college graduates to crucial professions.
And that includes, and this is me now talking, business, public service, technology, the medical professions.
This lack of diversity does not just hurt racial minorities.
It hurts all people in American society.
So Dan, I'll throw it to you.
There's a million things to talk about.
What are some initial thoughts for you on this whole ruling?
So initial thoughts are, unfortunately, it wasn't surprising.
I think also, we'll get to these, but there are these couple exceptions, or some describe them as loopholes, concessions, whatever, that are interesting, telling, weird.
I think those stand out.
I think The vehemence with which both sides are speaking is really interesting.
Court followers would have known this.
I would not have known this off the top of my head.
But the dissents were read from the bench, many of them.
And that's the first time since 2019 that that's happened.
You have Justices Thomas and Jackson directly taking shots at each other in footnotes to their dissents.
We'll talk more about that.
But I think just the really, really clear like radically different perspectives of what the aim is of the kinds of policies at UNC and Harvard, where the institution's named in this, but it's much wider spread policies.
And I think what that tells us about really different perspectives about race in America, equality in America, and so on.
Like you said, there's a lot to digest and dig in here, and we'll get to it.
But yeah, those were some of my initial spots.
We'll say more about it as we go along here.
So let's just talk about history real quick.
So some of you might be thinking, all right, so where did college admissions and affirmative action and all that start?
So let me talk through an article by Genevieve Carlton, Dr. Genevieve Carlton, who wrote about this.
Carlton explains, and this is a very basic history.
Others have done this as well.
That the phrase first appears in 1961, and this is when JFK creates the Committee on Equal Employment Opportunity, and a black lawyer named Hobart Taylor Jr.
wrote the phrase affirmative action in the margins of a draft of Kennedy's executive order.
So initially, affirmative action encouraged employers to hire marginalized people.
So if we think of the early 60s, this is a time when there is a kind of growing emphasis and momentum in American society that says, look, when it comes to hiring, You should consider those who have been marginalized, namely black Americans and other people of color and women, okay?
Now this leads to affirmative action.
Executive orders by subsequent presidents.
So, Lyndon Johnson and, I just want to note, Richard Nixon, both passed executive orders to end race discrimination and hiring.
Okay?
So, initially we're talking about hiring here, but then we have Johnson.
So, let me talk through these executive orders.
In 1966, Johnson is really focused on contractors and telling them to take affirmative action to ensure that applicants are employed and the employees are treated during the employment Without regard to their race, color, religion, sex, or national origin.
It's a couple years later that Nixon, 1969, promises affirmative action and government employment.
So we have the private sector, we have the public sector in terms of hiring.
Now, soon thereafter, like 1969 and after, colleges voluntarily adopted similar policies to combat racial discrimination, okay?
So, in 1969, many elite universities admitted more than twice as many black students as they had the year before.
So, friends, I just want to stop and say, these executive orders, won by Richard Nixon, a Republican, okay, had a cultural change, or they put in place a cultural shift.
When it came to college admissions, colleges were taking their cues from these executive orders and the ideas of hiring people who had been marginalized and saying, hey, maybe we need to consider that there are folks coming from marginalized communities whose Racial identity or marginalized identity needs to be considered when it comes to college admissions.
Jerome Carabell is a UC Berkeley sociologist, and he says it this way.
I don't see how you can understand it apart from the upheavals on campus, racial upheavals in the larger society, the general upheavals around the world.
Speaking of affirmative action and its context in the civil rights movement and an era when American society was really coming to grips with systemic racism and systemic oppression of a number of people, I think.
I can't help but think about 1968, 1969, the creation of ethnic studies in San Francisco and in the Bay Area through a pan-racial coalition of Latinx and Black and Asian American activists and student organizers.
Friends, I know we're going to come back to this later today, but what I want to put the emphasis on right now and underscore is that affirmative action and considering race in college admissions was a consideration of the ways that certain Americans had been systemically oppressed throughout our history.
Okay?
It was a consideration of our systems and our society as a whole.
What the Supreme Court has done, and I know Dan's going to talk about this and I will too, Is really now started to put the emphasis on the individual and say, oh, no, we can hear about the individual's experience of racism or marginalization, but we're not going to consider systemic racism or systemic oppression or anything like that when it comes to considering these kinds of things.
So there's also just this leads to kind of some of the loopholes in the So, I think what I actually want to start with is some statements that Clarence Thomas made, and then get into these loopholes, because I think they kind of relate here.
So if there's a basic history, based on that, Dan, where do you want to go?
So I think what I actually want to start with is some statements that Clarence Thomas made, and then get into these loopholes, because I think they kind of relate here.
And so Thomas said in his statement, I'm sorry, I really have trouble with Clarence Thomas, He said, First of all, just grammatically, the sentence doesn't make sense.
I think he means the skin color was not the sum of the individual.
He's got a lot of really educated clerks to write these things for him, but whatever.
That's just a nasty comment on my part.
And then he goes on to say this, he says, I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination.
I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States That all men are created equal, are equal citizens, and must be treated equally before the law." End quote.
And of course that was the sort of the gist of this, the crux of this for the conservatives is that it violated the equal protection under the law by privileging some people with racial identity and application decisions and so forth.
So a couple things that stood out to me here, and I think that they're going to be relevant when we get to the issues, the loopholes, and that's where I'll go next.
But the first is the sense that taking race into account in some way reduces people to skin color.
One thing about this, and Justice Jackson and her response to Thomas really, really hammers on this, and we'll get to that as well, is this This hackneyed right-wing view of what it means to take into account race in an affirmative sense, in a sense, as you say, rightfully, that is aimed at overcoming existing disparities, ongoing
Elements of systemic racism, the effects of that, and so forth, in a way to try to mitigate those effects.
And this notion that it reduces everybody to skin color.
It does no such thing, but I think it gives voice to a caricature on the right of how it is that these things work.
Because for them, oftentimes, that's all it can be.
It's all about race or it's not about race.
It's like a light switch that's on or off.
Where lots of people say, no, it's like this whole continuum of positions.
There are other things that come into it, like class and gender and sexuality and so forth.
And it's really, really complicated.
And the other thing that I'm going to point out that plays into that caricature is that what Thomas is Implicitly saying here is that these policies are worse than what was going on during Jim Crow segregation.
That looking around and saying, you know what?
We have a lot of applicants of color and very few of them are getting accepted.
We need to look at why that is.
And try to figure out if we have issues that need to be addressed, which is, as a person in higher ed who's been on committees, as you're a person in higher ed who's been on committees, that's how those discussions actually work.
This notion that somehow they were even worse than the segregated South where he grew up, which I think is completely ridiculous.
Why do I bring all that up?
I bring it up because of the exceptions.
So one exception, and I'll start with this one and come back, is the military academies were accepted from this.
And the reasoning that Justice Roberts wrote was that the academies are still allowed to consider race, and he said that race-based programs further the nation's interest in diversity.
Hmm.
Would have thought that's what colleges argue.
That's what businesses argue.
That's the whole point of affirmative action.
And so it raises for me really, really significant questions about, wow, like why?
Why is that exempted?
Justice Jackson wrote this in that caveat.
This is what she wrote about it.
And I think it's blistering.
She said, the court has come to rest on the bottom line conclusion that racial diversity in higher education is only worth potentially preserving Insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.
A particularly awkward place to land in light of the history the majority opts to ignore.
So, all kinds of problems with this.
It's not clear at all, like, why they were exempt or, like, why there's a different legal rationale or a different interest.
The super cynical part of me looks and says, oh wow, you know what?
The military.
Lots and lots and lots of minorities Part of the civil rights movement going back to the Vietnam era and before is America sending its black and people of color soldiers to go and die and fight for white rights and white privilege.
I cannot not see that in this.
I cannot not see that in somebody like Clarence Thomas signing off on this.
So that's the first loophole.
The second one, or exception, is that applicants to college can still write their essays, talk about their experience of race, and that that can be taken into account, according to Justice Roberts, as long as they are considered as individuals, not on the basis of race.
A couple things about this.
Number one, and I know, and again, Justice Jackson gets at this in her responses to Thomas, which I think eventually we'll get to.
That's how it actually works.
Most people understand most of these kinds of things don't just simply have a tick box that you're like, oh, person's Black, person's Asian, person's Pacific Islander or whatever.
We're going to let them in.
Like, we're not going to look at anything else.
It's a holistic approach where somebody says, here's how I was impacted by being a person of color or being Native American or being whatever.
And this is part of my experience and this is why it would enrich.
My community to have this opportunity.
This is why I would enrich your academic community to have this opportunity.
We've heard the same things when Supreme Court justices are going through confirmation hearings, and we'll talk about their background.
So, number one is the straw person argument here that that's not already taking place.
But the second one is that notion of the individual.
We have to consider you as the individual.
There's no such thing for the conservatives as a kind of corporate identity.
This is for them what being quote-unquote colorblind is supposed to be, is that we no longer look at collective realities, we don't look at demographic realities, we only look at individuals as these kind of abstract Weird non-realities.
I don't know if people remember the TV series Community where they had like the Community College, but they had this mascot that they didn't want to offend anybody with.
So it was this person who ran around in this like green-colored beige bodysuit with no defining features.
And the idea was they didn't want to appeal to any identity in any way that could offend anyone.
And that's what you have is this bland, nameless entity.
That's what human beings are to these conservative jurists.
These things don't matter.
The last thing I'm going to say, and I'll throw it over to you again, is just Jackson's Sotomayor's— sorry, I'm getting confused on my people here— In Jackson's response, she just talks about how this creates colorblindness by legal fiat and says, saying that this is the way the nation is, that it operates with this kind of bland sense of individualism, doesn't make it what it is.
So that's a lot there, introduces those two caveats.
I have more to say about everything, but I know you do too.
I throw it back to you.
All right, let's take a break.
We're going to come back and just keep going because there's just way more to talk about than we can fit into one segment.
All right, we'll be right back.
All right, friends.
So, just picking up on what Dan just said, let's just take a minute to consider what Judge Jackson's talking about there.
It is colorblindness by legal fiat.
So what does that mean?
And I think, Dan, this will perhaps give us a chance, just amid the myriad of issues we could discuss in relation to this, it'll give us a chance to really connect this to the Don't Say Gay bills and the various attacks on public school curricula across the country and book bans.
So some of you might be thinking, all right, what does this have to do with book bans and Don't Say Gay?
Well, we're going to make that connection right now.
If it is colorblindness by legal fiat, and you are somebody, okay, who discusses, whether in a legal setting, a business setting, or in a personal cultural setting, we now have a precedent from our Supreme Court that says we're not going to consider identities that have been marginalized, racial identities, and other things when it comes to college admissions, okay.
So what we're saying is, is that you as an individual might have had experiences that have been challenging because you are black, because you are Mexican-American, Colombian-American, because of your Vietnamese-American heritage, whatever may be.
But as a whole, we're not going to consider the fact that black Americans have a collectively different experience than white Americans or others.
We're not going to consider that the particular histories of being a Vietnamese American when it comes to Everything from the wars, to refugee status, to all kinds of histories and other immigration stories.
Those things collectively are not going to be part of this discussion.
So, Dan, I'll give you an example of something that really hit me when you were talking.
You were talking about the ways that the military is accepted from this, and I was thinking And there's a lot of discussion about what this means for Asian Americans, and there's a lot of complexities when it comes to Asian American issues surrounding affirmative action.
But here's something that hit me as you were talking, Dan, is like, My grandfather fought in World War II for the United States against Japan, the country of his parents' heritage and citizenship and so on, his being a person of Japanese descent.
He did that while other parts of my family were incarcerated in camps set up by the American government.
So he was given the exception.
A lot of Japanese Americans were given the exception of leaving camp An incarceration camp where the U.S.
government had imprisoned them if they would go fight for the U.S.
military.
Now, there is a long and sordid history and discussion about those set of events, but Dan, that's part of this.
All right, so here's the overall point.
We seem to now have regressed to a point in the country's history where if you talk about a collective identity as one that has meant facing oppression or marginalization, everyone from a legal point of view, and we're going to get to this perhaps a A business point of view and an educational point of view is going to be like, no, well, just you tell me about you.
Okay.
Are you a black person?
Give me the instances.
Spell it out in an essay in your college application.
What?
You're somebody who is a Mexican-American and your parents immigrated to this country?
Well, just you got to explain it.
How did that mean some sort of challenges?
Let us hear it.
The point is, it's a colorblind approach that does not want to recognize the corporate identity.
And what is the corporate identity based on?
Well, what we're talking about is history.
So, Dan, the last person born to an enslaved American, an enslaved black American, died last year.
Jim Crow ended in our parents' lifetime.
We are talking about... I mean, I could go through all the... I just talked about Japanese incarceration.
I mean, Dan, it was not until 1967 that the Supreme Court Basically protected people in mixed race marriages from like being criminalized across the country.
I mean, we could name, and I'm not going to do it.
We could name all the ways that racial prejudice and exclusion have existed right up into the present.
We could talk about George Floyd.
We could talk about every last example.
But the corporate identities we're mentioning come from actual history.
And I think that leads us, Dan, into why you want to ban books.
Why you want it so that your curricula does not include an AP history class on African-American history or African-American studies.
Why your curricula does not go into all of the atrocities of American history, including attempted genocide of Native Americans or Chinese exclusion.
Or so on and so on and so on.
You start to connect the dots because if you if you go through those histories and you have a citizenry, an informed citizenry that knows those histories, then all of a sudden they might think, hey, it might be good as as a society if we did something to rectify the ongoing marginalization and historical oppression of certain groups.
OK, we could talk about generational wealth here, Dan.
I mean, we could compare generational wealth.
And I want to come back to this in this segment and talk about the ways that The generational wealth and libertarian ideals are really not about the government not intervening.
It's just about the government not intervening anymore.
But I'll throw it to you.
What does this have to do with Don't Say Gay?
What does the college admissions ruling from the Supreme Court have anything to do with attacks on trans kids or Don't Say Gay bills in Florida or anywhere else?
I think what they show is what is emerging as a common strategy on the right.
And there's a political article by, and I may mispronounce his name, so I apologize if I do, but Aziz Huq, basically looking forward and saying, here's where this could go, right?
And what he's looking at is a class of laws, sometimes they're laws, sometimes they're like federal policies or policies an agency might have, but they're called disparate impact rules.
And it's basically the idea, this will be basic to a lot of people that understand this, disparate impact ideas.
This is how he describes it, and he summarizes it really well.
He says, often, it's from the political article, people who act for bad reasons don't wear the racist motives on their sleeves.
Or are simply negligent about the way that their actions entrench past race-based disadvantage.
I want to hold on to that latter part.
That's where a lot of well-meaning people live, I think.
They participate in systems or practices or economic policies or whatever, that have impacts on certain classes of people that they may never have been aware of, that they didn't they didn't wake up in the morning trying to disadvantage somebody.
That's just what happens, as well as really bad actors who know that they're racist and it's a way of hiding their racism and so forth.
So he goes on to say, so disparate impact laws allow a plaintiff to prove they encounter discrimination by pointing to large and unexplained racial disparities.
In other words, looking at kinds of patterns that exceed the individual, that exceed individual intention, that somebody may not even know about and say, Where these policies are in place, for example, we could talk about, like, redlining laws or things that were in place with, like, mortgages and stuff, and look and say, you know what?
Entire swaths of a city have made it impossible for people of color to, say, get a mortgage and to move there.
Did individual homebuyers, like, try to make that happen?
Sometimes, sure.
Sometimes they moved there because there were no people of color.
But often they didn't.
They're just applying for a mortgage, trying to buy a house, live out their slice of the American dream.
Fine.
But you get these so-called disparate impacts.
So what happens here?
Well, what Hooke goes on to say is he says this, he says it's impossible to talk about quote racially disparate impact without talking of race.
What you now say is we can't talk about race.
Sound familiar?
Sound like don't say gay?
We're not saying Brad or anybody else, we're not saying you can't be queer.
Not saying you can't be trans.
We're just saying that we can't have any books about that.
Teachers can't talk about that.
It can't be part of a curriculum.
We're not saying there hasn't been a racial history in America.
We're just going to say we can't talk about that.
We're not going to let people talk about collective identities and so forth.
It's the same thing.
It's instead of don't say gay, it's don't say race.
And you could look at this two ways.
One is, because this is not a, this, especially this vision of colorblindness has been a conservative strategy for some time now.
One could look at it and say, this is what the don't say gay people figured out.
We'll use, pick up the same kind of strategy and employ it there.
And I think also the success of that strategy is influencing the Supreme Court now as the conservatives do this.
It's a conservative idea that has boomeranged around and come full circle.
So for me, that's the connection here.
I want to highlight one other thing before I throw it back because I mentioned that Thomas and Jackson had these like footnotes taking shots at each other.
But listen to part of what Thomas said, Clarence Thomas said about Justice Jackson's dissent.
He said this, he says, as she sees things, we are all inexorably trapped in a fundamentally racist society with the original sin of slavery and historical subjugation of Black Americans still determining our lives today.
First thing I just want to throw out, if we believed that we were stuck in that, we wouldn't have policies and laws to unstuck ourselves.
So, completely false.
But then listen to what he says.
He says, we're still Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims.
Her desire to do so is unfathomable to me.
What is he saying?
He's saying that exactly the evidence that is used to demonstrate disparate impact, statistical relationships between race and measures of health, wealth, and well-being, he is saying that all of those victimize Black people in particular, who he cites, but he is doing what Clarence Thomas does.
He's laying the groundwork for future cases and saying that those disparate impact rules Draw on data they shouldn't draw on.
Justice Roberts, we just talked a minute ago about how it's all about the individual.
You have to be able to show that you as an individual are discriminated against, but Brad, you can't do it by showing statistical evidence or appealing to histories of oppression or marginalization of the class of which you're a part.
You have to remain silent about that and try to show that, no, the pattern of, say, mortgages, that doesn't matter.
What matters was the mortgage lender explicitly racist toward you as an individual.
Probably not.
They're just somebody like punching numbers into their screen to see if you qualify.
They're not writing the rules.
They're not carrying out the rules.
They're not passing the laws.
So I think all of this fits together, this reduction of things to the individual, the silencing about issues of race or gender or sexuality or whatever else as a means of maintaining a marginalizing status quo or even increasing it and making it impossible to counter it because we literally can't talk about it in court.
So first of all, tour de force.
Thank you for all of that.
And I'll just say, okay, so let's, let's just keep thinking about this.
So I have to say this.
I just have to.
It's always a binary on the right.
It's always either or.
And as a college professor, Dan, and I'm going to get into this in a second, one of the things we're hoping for, for those of us who teach the humanities, is critical thinking.
And, you know, Thomas's comment there is like, we're in this situation where we're all still trapped.
And it's like, as you said, if we were all, if it was a situation of being trapped, it would be like, oh.
No progress has been made, etc.
It's never a recognition that while progress has been made, while things are different now in 2023 than 1923 or 1823, that there still are challenges that are faced by certain groups that are not faced by others.
There's no complexity, no nuance.
And he says, oh, You want to reduce.
When you point to these broad numbers, he like recognizes the statistics.
He recognizes the broad patterns.
And then he's like, but that's no reason.
These broad patterns of health measures and generational wealth and business ownership mean nothing, but you know, they're just broad scale patterns.
What do they have to do with our society?
Think about the logic there.
Judge Brown, Ketanji Jackson Brown, what do these broad scale patterns have to do with our society?
Think about the absurdity of thinking that way.
All right.
Now, this brings us to something else, which is the purpose of education.
So, Dan, you just connected this to Don't Say Gay.
And the thesis that I've taken away from all of this is, look, if you can't talk about Various critical domains of American society, race, gender, sexuality, or histories of oppression, then people are not going to learn about them.
People are not going to be aware of them.
Do you know how many people, and I'll keep coming back to this example because it's the one that's most personal to me.
Do you know how many people in my life have told me, I didn't know about Japanese incarceration until you told me.
Like, I've had, and I've said this on the show before, I've had, like, members of my wife's family say, you know, until, like, Kendra married into a Japanese-American family, no one ever told me that, I don't know, y'all were incarcerated during World War II, but now I know.
You know why?
Because if you don't teach about these things, Dan, people don't know about them.
So here's one of the things that Robert said.
He said that when it comes to college admissions, the benefits of diversity, The benefits of having diversity in our classrooms are not sufficiently measurable to be subjected to meaningful judicial review.
And this is from a piece by Mark Joseph Stern at Slate.
Goals like training future leaders and promoting the robust exchange of ideas are commendable, but they are not sufficiently coherent to satisfy strict scrutiny because courts cannot measure them.
So there's so much here.
There's so much here.
Okay, so one issue here is we can't measure them.
So the idea is, is the benefits of having a diverse people in the classroom are not measurable.
meaning your body, is worth considering when it comes to an American classroom.
Okay, so one issue here is we can't measure them.
So the idea is the benefits of having a diverse people in the classroom are not measurable.
He's basically giving you the like really anti-humanities, anti-study of literature, religion, history, politics, languages, everything.
Every dean, every person who's ever been hired as a consultant to get rid of certain departments in a university to save money has made these arguments.
Well, we can't measure these.
What's the connection between an English class and how much money a kid makes after they get out of our school?
Well, who knows?
So let's get rid of the English department.
When it comes to like the business administration degree or the economics degree, we can measure that.
So that's useful.
That's valuable.
Okay?
So I'll ask a big question and then we'll go to break.
What's the purpose in this case of education?
Why do we have universities?
Of course, we're training people for professions.
Sure.
No one's arguing with that.
I will never argue with that.
We are training people also, however, To be citizens of the United States, to be informed about the goings on of our world, about the histories that have formed the institutions and the nation states and the various communities across the globe going back millennia, all the way until now.
Dan, universities are places.
We're those folks who will become our CEOs and our scientists and our third grade teachers and the leaders of NGOs, the people that will serve, right, in our government institutions, the people that will go to law school, perhaps?
The people that will serve on our benches and determine the fate of our society from a legal point of view, it is the place where they can do what?
It is where they may have the only time in their lives to study things that go beyond the scope of their career.
I know this as a religion professor, Dan, and I know it every time I teach a religion class.
This might be the only time this kid sitting in front of me who's 19 years old has a chance to understand the history of whatever we're talking about.
Could be the Catholic Church.
Could be the black church tradition in the United States.
Could be the varieties of American religion when it comes to race and gender.
Could be the ways, surprisingly in their mind, that so many American religious communities are actually inclusive and welcoming of gay and lesbian and trans and queer people.
It could be the ways that those communities have fought in our legal systems for more rights for LGBTQ folks.
It could be anything you mention, right?
It could be the only place an American citizen learns about Japanese incarceration or the fact that Jim Crow didn't end until their parents' lifetime or the ways that the 1960s revolutionized our society that often goes unnoticed.
Whatever it is.
I don't know.
The fact that women didn't get the vote until 1920, Dan.
Okay?
We could talk and talk and talk and talk and talk about the reasons we have education, but one of them...
Is that this is a chance to have time and space to cultivate bodies and minds in ways that is rare in our society.
So when you have people in your classrooms, and I have seen this firsthand, who come from various backgrounds, when you have people in your classroom who are black and brown and Asian American and white, when you have people in your classroom who are Jewish and Muslim and Buddhist, It brings in lived experiences.
It brings in ideas.
It brings in stories and histories that enrich everyone.
And I have seen people's lives expanded by that.
And what Roberts is saying is, well, we can't measure it, so we don't think diversity is actually something that we can consider sufficiently coherent to satisfy strict scrutiny.
And it's basically saying that I'm not sure that that's what education is for.
All right.
Let's take a break.
And I want to jump into how this affects other sectors.
And we have, I also want to talk about a little something called legacy.
We'll be right back.
All right, Dan, I want to just get into legacy quickly, and then I'll get into some other aspects of our society this might affect, and then I'll throw it to you.
This is from the Harvard Crimson.
So this is the Harvard student paper writing just a couple days ago, or yesterday, excuse me.
In her dissent, Sotomayor blasted legacy admissions.
argued that Harvard's continued practice of giving preference to ALDC applicants who are 67.8% white underscored the need for affirmative action.
So if you're listening, I think you probably are aware that a lot of schools consider legacy as part of their admissions policy, meaning did you have family members such as your mom or your dad or your grandfather who went to this school?
And in the case of Harvard, 67.8% of legacy applicants are white.
Now, Dan, that's not an accident.
Places like Harvard and Yale and Princeton have long been the places where American elites have trained.
For a long time in this country, they were the places that only white people trained and were given admission.
They were places where the pipelines to being someone of power and status and note in this country were in place.
Stated simply, race is one small piece of a much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities.
Sotomayor wrote, that is precisely why underrepresented racial minorities remain underrepresented.
Michelle Obama weighed in.
We usually don't question whether students who are children of alumni had access to lavish resources and high school belonged at selective colleges, despite such students being granted special consideration for admissions.
So often we just accept that money, power, and privilege are perfectly justifiable forms of affirmative action, while kids growing up, like I did, are expected to compete when the ground is anything but level.
So you think about legacy, Dan?
You think about the fact that people are applying and that the school is considering whether or not they had parents or grandparents who went here, and that there's a very good chance that those legacy applicants are people who have had access to tutors, after-school programs?
private education, whatever may be.
And nobody ever sort of thinks about that.
The other thing that people have mentioned here is giving a tip or a kind of priority to recruited athletes.
So if you're a recruited athlete, you get a little nod of the head there and you might get admitted to a place, an elite place like Harvard or another Ivy League school, in ways that you probably would not have or maybe not have if you were not an athlete.
So if And you may be thinking, well, athletes are athletes.
That's great.
Good for them.
They get to go to Harvard.
So let's just think about one sport and then I'll stop on the athlete thing.
We can all think about basketball or football, Dan.
That's one thing.
Let's think about lacrosse.
Let's think about, I don't know, rowing.
Let's think about things like fencing.
So when I was at Oxford, okay, a place of great privilege.
I don't know about you, Dan, but I met the richest people I know I met at Oxford.
And I realized very quickly we were not the same.
You all go to the pub and like, I'm going to have a beer because I have like six bucks to spend.
And somebody orders champagne, $300 bottle of champagne.
You're like, oh, and they drink like one sip and then leave it on the table.
You think about, like, what it takes to be, like, an elite fencer.
The amount of money and, like, equipment and travel.
Rowing.
I know that there's people out there who are part of, like, public schools that row, and that's awesome, and I just tip my hat to you all.
I've talked to you and your parents.
But on the whole, Dan, rowing is, like, a private school thing.
It's a very expensive thing.
You need a lot of like privilege to do that.
We could talk about all kinds of different sports that are not basketball and football.
And they require, not just, don't get me wrong, I'm not trying to belittle anyone's ability, but I'm saying you probably can't do those sports unless you have like a lot of money and access to resources.
And then as a result, you might get what?
A tip of the hat to get into Harvard because you're really good at what?
Rowing.
Or you're really good at what?
Lacrosse.
And I can go on and on.
And if you're listening and you're a rower, I'm not belittling your ability.
I'm not trying to belittle your sport.
What I'm saying is, is we never consider the fact that most people who do certain sports come from places where they need immense amounts of privilege and resources to do the sports to start with.
And then that helps them what?
Get into Princeton or Harvard.
So that's part of Michelle Obama's point.
All right, I'll throw it to you.
What do you think on this point?
A couple things about this.
One is, I've already read of liberal groups that are targeting the legacy issue on the grounds of this Supreme Court decision, on exactly the grounds that have just been given, that it's a form of white affirmative action, primarily white affirmative action.
And you've got some colleges that have started to do away with these, but as you say, like lots and lots of them depend on them.
The athletes one is really interesting.
I was thinking about that.
I'm like, imagine if the athletes had to apply, Brad, and you had to say, you know what?
We can't take the fact that you're a football player into account.
You can write about sports and how important they are for your life.
You can write about the impact they've had on you as an individual.
But we're not going to take into account the fact that you're like a high school All-American athlete, no letters of intent, no waiving of the standard requirements, academic requirements.
And again, my younger brother, college athlete, walk-on, pre-med, medical student, I understand that there are lots of college athletes who are very, very capable scholars.
We all also know there are lots of college athletes who aren't, and this is great for them.
It gives them opportunities they often would not otherwise have.
But it shows the flawed logic of this.
If you were to say, OK, let's play this where everybody, let's talk about the level playing field that the conservatives, I guess, think is there.
Folks, we've heard George W. Bush speak.
We've heard some of these senators and others who can't think critically.
They can't put three sentences together.
They're not smarter than you, but they are better educated.
Why?
Because they got into these institutions as legacy students.
Yeah, let's talk about the level playing field.
What would really happen if all of these people had to just write as the individuals they are, No legacy, no money, not part of a sports team.
We can see how flawed the idea is when basically we now say, well, if you're part of a racial minority, You can't bring that in.
I mean, you can bring it in, but we can't look at that as a decision.
It's coming for other things, but we can see how widespread that still is.
So yeah, imagine the top-tier college athletes that we love watching on Saturdays or throughout the week or in March Madness and saying, yeah, we weren't allowed to take into account the fact that you were going to help our basketball team, our football team, our lacrosse team, whatever it is.
Dan, one way to sum up what you just said, and this whole discussion of legacy, is that the only thing that can be considered something in your favor if you are applying to elite schools is money.
So that leads me, we've connected the dots to don't say gay and to banning books.
Let's connect this to what a lot of folks on the right love talking about, which is government regulation and being a libertarian.
Hey, less government's better, okay?
And you're like, what does less government and libertarianism have to do with college admissions?
Well, here's where I'm going with this.
A lot of people would say, right, it's all about the individual.
Yeah, we'll consider individual experience, but not systemic issues.
And that's a libertarian idea.
Hey, it's all about the individual.
You are capable, you should save money and work hard, and you should accomplish what you can, and that's it.
There's no collectivity.
Libertarianism, in essence, is an anti-collectivist.
So when you hear people who demonize socialists and communists and collectivists, that's what they're doing.
They're saying the American way is about an individual who works hard.
And it's a myth.
It's an ideal.
And I'm going to say something now that is important.
It privileges white people.
And now you're like, okay, Onishi, how does that happen?
Here's how.
For centuries in this country, Leading up to very recent history, the United States government has privileged white people.
If you have... We got a dog barking in the background, okay?
And the dog is just as upset as me, so just be aware, alright?
This dog is not happy.
Alright, they're egging me on.
So, if you have a situation where in the 16 or 1700s, leading all the way up to the Civil War, you cannot, I don't know, own property, but you are considered to be property in this country.
You're kind of economically disadvantaged.
I don't know.
Kind of a pretty easy case.
Am I right?
All right.
Cool.
Okay.
Well, how about after slavery ends?
We have a situation where what?
It's really hard to vote if you're what?
A black person?
Because you might encounter a poll tax.
You might encounter a poll test where you have to recite the entire constitution for them to let you vote and so on.
It might be hard to vote because you're a woman and that didn't happen until 1920.
It might be hard to vote and to own property because there were alien land laws in the 1880s forming, and they really get going in the early 1900s.
So if you're a Chinese person or a Japanese person, you may not be allowed to be in the country, or if you are, to own land or to lease land.
Dan mentioned earlier redlining.
So hey, you can't buy a house in this nice neighborhood where your property will appreciate value, right?
And I can give you all the examples of that.
If you don't know about redlining, please just Google it and look it up.
I could go on and we're gonna run out of time for the next two hours about the ways that the American government made it such that if you were a white person, there was a direct linear pathway for you to make money, accrue generational wealth, own assets, own property, and so on accrue generational wealth, own assets, own property, and so on and so on and so on.
And if you were not, you were held back.
It was like everyone was on a race and you had to wait a count of 10 or 20 if you were even allowed to go at all down the path, okay?
And now the libertarian shows up in your philosophy class or at the barbecue or at the bar on Friday night and says, well, I just think everybody should do their best and try their hardest.
And whoever gets the most gets the most.
And if you don't, you're just not up to the challenge.
Sorry.
I don't know what to say.
So when a college is like, yeah, legacy, we'll let you in.
Yeah.
Your granddaddy went here and your great granddaddy went here.
Well, that's something must be a good family.
We got, you know what I hear?
I hear them saying, Yeah, in a time when to be black or a person of color or a woman was really just not a time when you had equal access to things in American society like property or jobs or admission to college.
That college is able to say, yeah, long history here of your family successful at Princeton or Harvard or somewhere else.
We should get, yeah, we'll let you in here, son.
Get in here.
All right.
Get that blue blazer and the gold button.
We're proud of you.
Come on in.
Doing your family proud there, George W. Bush.
Great job, OK?
Legacy is libertarianism, and libertarianism is not saying I don't want the government to be involved.
You know what libertarianism is?
I don't want the government to be involved anymore, because if they do, they might put their hand on the scale that tips it not my way, rather than the centuries of tipping it for my way, and me not even acknowledging that that happened.
All right?
We got to get out of here, but Dan wants to chime in, I can tell.
Just the same thing we've said before, I've said before, is people always have this reaction, like, equality would be good for everybody.
Why would anybody oppose equality?
You hear this from conservatives a lot.
People who oppose an equal playing field are the people who have benefited from not having an equal playing field, often for generations.
That's the, for me, the sort of really pernicious dynamic of this that has to be brought out, is it's not about As conservatives say, oh, we're the ones who really want equality and say we should treat everybody the same.
Bringing about equality often means that we can't treat people the same because they haven't been treated the same for centuries and we have to undo, unwind that.
Yeah, once you have a level playing field, that'd be fantastic.
But until we do, you have to create a level playing field.
All right, let's go to Reasons for Hope.
Mine is, and I know Dan wants to talk about this, so mine is mixed, but it comes from the Supreme Court, and it's the Supreme Court deciding six to three against independent state legislature theory.
So, if you're a fan of this show and you do not remember what this is, go to our website, straightwhiteamericanjesus.com, and go to the search function and type in these words, independent state legislature theory.
This is a theory that says that state legislatures have the ability to choose their electors in every election such that it does not matter what state law says, the state supreme court says, the state constitution says, or the will of the people say.
If in 2024, a majority of Arizonans or a majority of Georgians vote for Joe Biden or the Democratic nominee and not Donald Trump or the Republican nominee, the Republican state legislature could say, well, too bad.
We are sending to the electoral college people that will vote for Donald Trump or the GOP nominee, not the other person, despite the fact that 51% of Georgians or Arizonans voted for that other person.
Now, the good news is the Supreme Court seems to have struck this down.
The bad news, and I'll throw this to Dan for talking about why, is that it was a 6-3 ruling with some weird caveats and weird dissents and other stuff happening.
Why was this not 9-0, like a case that we're going to talk about in a second?
That's why it's good news, but also somewhat bad news.
Yeah, so the weird thing about this is normally the Supreme Court, going back a really long ways, doesn't like the idea of not allowing judicial review of things.
So those dissenting from this in principle are saying courts should have no ability to weigh in on what state legislatures do.
So yeah, it's a little terrifying that you had a third of the court apparently okay with this.
The other thing I thought was interesting was, again, Thomas, we're on a Clarence Thomas kick today.
His argument was that this issue had been rendered moot.
And the reason is you had in North Carolina, it has to do with both the appointment of electors, also gerrymandering, all of these kinds of issues.
And then the Supreme Court in North Carolina, the constitution of that changed, and then they struck down the law that the prior North Carolina Supreme Court had allowed to stand.
So Thomas said, well, this is moot.
It's not even a live thing anymore.
We shouldn't be ruling on it.
That's the one that was telling to me, because what I hear Thomas saying is, we should have just let this live.
We should have just let this breathe some more.
We should have just left this out there.
And I can't help but point out and remind us that Ginny Thomas was involved in election denial, that she was a part of all of this, that we've talked about Clarence Thomas's ethics issues.
All of that was there as this way of sidestepping the issue, but to sidestep the issue as he would have done means it's still a live issue.
You get to let this foment into the 2024 election and beyond, Of letting this fringe legal theory that was gaining traction essentially say state legislatures can do whatever they want in terms of election law, and it cannot be reviewed by anybody.
So that was interesting, a telling point.
I'm with you.
It was hopeful, but a mixed bag in some ways.
I'll just say quickly, it's not like, I don't know, in the last presidential election, one of the candidates, who's now running for president again, tried to send fake electors to the Electoral College and was trying to create a situation where the state legislature had to decide which electors were going to be the ones whose votes counted in the Electoral College.
Again, that was a lot in like 20 seconds.
Go to our website, type in independent state legislature theory.
We've done episodes on this, and you'll get a whole rundown of why this should scare the hell out of you, and it's not over yet.
So, all right, Dan, give us some real good news, will you?
So another reason for hope, we're all SCOTUS all the time today, but in a nine to zero decision, so unanimous decision, they made a religious freedom ruling.
And this, anybody listens to, it's in the Code series.
Last episode was on religious freedom and what that is.
This is what I think religious freedom is supposed to be.
If I wanted to sound like an originalist, I could say this is what I think the people who first talked about this thought it was supposed to be.
It was a ruling that a mail carrier, I think in rural Pennsylvania, could not be required to carry the mail on Sunday, interfered with his religious observance.
The idea being that the U.S.
Postal Service could reasonably accommodate having somebody else do those routes or deliver For whenever they deliver on Sundays.
If you're like me, I don't understand fully why there's mail sometimes on Sundays and mostly not, but we get the idea.
President Biden made a statement similar to this today when he said religious liberty was supposed to be about helping defend freedoms, helping prevent discrimination, not enabling discrimination.
Didn't even get to talk about other SCOTUS decisions today that we could have infringing on LGBTQ rights.
But I took hope in what I think is what religious freedom is supposed to be.
I'm not an opponent of religious freedom.
When there are people who really are discriminated against on the basis of their faith, their practice, their ritual practices, whatever they are, I think that they should be protected.
And so I took hope in that.
And just as a side thing, it is nice occasionally to see the Supreme Court unanimously rule on something that seemed pretty obvious.
All right, friends, find us at straightwhiteamericanjesus.com.
All of our stuff's there.
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So if you're a new patron to this show, thank you for that.
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So check that out.
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We are just so thankful for all of you.
More to come in terms of some news and other things, but for now, we'll just say appreciate you.
Thanks for listening to one of the very few live recordings where Dan and I are in the same room.
