Higher Education Webinar: Affirmative Action

Mike Hoa Nguyen, assistant professor of education, faculty affiliate at the Institute for Human Development and Social Change, and faculty affiliate at the Metropolitan Center for Research on Equity and the Transformation of Schools at New York University, leads the conversation on affirmative action.

FASKIANOS: Thank you. Welcome to CFR’s Higher Education Webinar. I’m Irina Faskianos, Vice President of the National Program and Outreach at CFR.

Today’s discussion is on the record, and the video and transcript will be available on our website, CFR.org/academic. As always, CFR takes no institutional positions on matters of policy.

We are delighted to have Mike Hoa Nguyen with us to discuss affirmative action. Dr. Nguyen is assistant professor of education at New York University’s Steinhardt School of Culture, Education, and Human Development. He’s also a faculty affiliate at NYU’s Metropolitan Center for Research on Equity and the Transformation of Schools and a faculty affiliate at NYU’s Institute for Human Development and Social Change.

Additionally, Dr. Nguyen is a principal investigator of the Minority Serving Institutions Data Project. And prior to coming to NYU he was at the University of Denver. He has extensive professional experience in the federal government and has managed multiple complex, long-term intergovernmental projects and initiatives, focusing on postsecondary education and the judiciary and has published his work widely, including in Educational Researcher, The Journal of Higher Education, and The Review of Higher Education.

So Mike, thanks very much for being with us today to talk about affirmative action. Could you give us an overview of where we are, the history of affirmative action, where we are now, and examples of criteria that are used by different institutions?

NGUYEN: Well, hello. And thank you so much, Irina. And also thank you to the Council on Foreign Relations for having me here today. It’s a real honor. And thank you to many of you who are joining us today out of your busy schedules. I’m sure that many of you have been following the news for Harvard and UNC. And, of course, those cases were just heard at the Supreme Court about a month ago, on Halloween.

And so today thank you for those questions. I’d love to be able to spend a little bit of time talking about the history of sort of what led us to this point. I also recognize that many joining us are also experts on this topic. So I really look forward to the conversation after my initial remarks.

And so affirmative action, I think, as Philip Rubio has written, comes from centuries-old English legal concept of equity, right, or the administration of justice according to what is fair in a particular situation, as opposed to rigidly following a set of rules. It’s defined by the U.S. Civil Rights Commission in 1977 as a term that is a broad—a term, in a broad sense, that encompasses any measure beyond a simple termination of discriminatory practice adopted to correct for past or present discrimination or to prevent discrimination from recurring in the future.

Academics have defined affirmative action simply as something more than passive nondiscrimination, right. It means various organizations must act positively, affirmatively, and aggressively to remove all barriers, however informal or subtle, that prevent access by minorities and women to their rightful places in the employment and educational institutions of the United States.

And certainly one of the earliest appearances of this term, affirmative action, in government documents came when President Kennedy, in his 1961 executive order, where he wrote that the mandate stated that government contractors, specifically those that were receiving federal dollars to, quote, take affirmative action to ensure that applicants are employed and employees are treated during employment without regard of their race, creed, color, or national origin.

Certainly President Kennedy created a committee on equal employment opportunity to make recommendations for this. And then later on President Johnson later expressed—I’m sorry—expanded on President Kennedy’s approach to take a sort of more active antiracist posture, which he signaled in a commencement speech at Howard University.

In the decades following, of course, political-legal attacks have rolled back on how affirmative action can be implemented and for what purposes. So in admissions practices at U.S. colleges and universities today, really they can only consider race as one of many factors through a holistic process or holistic practices if so-called race-neutral approaches to admissions policies have fallen short in allowing for a campus to enroll a racially diverse class in order to achieve or reap the benefits of diversity, the educational benefits of diversity.

Federal case law established by the courts have affirmed and reaffirmed that colleges may only consider race as one of many factors for the purposes of obtaining the educational benefits in diversity. So starting with the Bakke decision in the late 1970s, the Court limited the consideration of race in admissions and replaced the rationale for the use of race, specifically the rationale which was addressing historic and ongoing racism or systemic and racial oppression, instead in favor of the diversity rationale.

So, in other words, if a college or university wishes to use race in their admissions, they can only do so with the intention of enhancing the educational benefits of all students. It may not legally use race as a part of their admissions process for the purpose of acknowledging historical or contemporary racism as barriers to equity in college access.

If we fast-forward to something more recent, the two cases out of Michigan, the Grutter and Gratz case, what we saw there were really—significant part of the discussions of these two cases were really informed and conversations really about the educational benefits of diversity. That was really a key aspect of those cases.

Lawsuits challenging the use of race in college admissions after those two cases now can sort of be traced to Edward Blum, a conservative activist, and his organization, Students for Fair Admission, or SFFA. So Blum has really dedicated his life to establishing what he calls a colorblind American society by filing lawsuits with the goal of dismantling laws and policies seeking to advance racial justice. This includes redistricting, voting rights, and, of course, affirmative action.

So in 2000—in the 2000s, he recruited Abigail Fisher to challenge the University of Texas in their admissions program. The Court, the Supreme Court, ultimately ruled in favor of Texas in the second Fisher case—Fisher II, as we call it. And so that’s actually where we saw Ed Blum alter his tactics. In this case he established SFFA, where he then purposefully recruited Asian Americans as plaintiffs in order to sue Harvard and UNC. So the cases now at Harvard—are now certainly at the Supreme Court.

But one sort of less-known case that hasn’t got a whole lot of attention, actually, was—that was sort of on the parallel track, actually originated from the U.S. Department of Justice more recently, during the Trump administration, which launched an investigation into Yale’s admissions practices, which also focus on Asian Americans. And this was around 2018, so not too long ago.

And certainly Asian Americans have been engaged in affirmative action debate since the 1970s. But these lawsuits have really placed them front and center in sort of our national debate. And so I think it’s really important to also note that while empirical research demonstrates and shows that the majority of Asian Americans are actually in support of affirmative action, a very vocal minority of Asian Americans are certainly opposed to race-conscious admissions and are part of these lawsuit efforts.

But interestingly enough, they’ve received a large and disproportionate share of media attention and sort of—I stress this only because I think popular press and media have done a not-so-great job at reporting on this. And their framing, I think, sometimes relies on old stereotypes, harmful stereotypes, about Asian Americans, and written in a way that starts with an assumption that all Asian Americans are opposed to affirmative action when, again, empirical research and national polls show that that’s certainly not the case, right, and much more complex than that.

But anyway, so back to what I was saying earlier, in sort of the waning months of the Trump administration the Department of Justice used those investigations into Yale to file a lawsuit charging that Yale in its admissions practices discriminates against Asian Americans. This lawsuit, the DOJ lawsuit, was dropped in February of 2021 when President Biden took office. So in response to that, SFFA submitted its own lawsuit to Yale based upon similar lines of reasoning.

So I think what’s—why bring this up? One, because it doesn’t get a lot of attention. But two, I think it’s a really interesting and curious example. So in the Yale case, as well as in the previous DOJ complaint, Ed Blum notes specifically that they exclude Cambodian Americans, Hmong Americans, Laotian Americans, and Vietnamese Americans from the lawsuit, and thus from his definition of what and who counts as Asian American.

I think this intentional exclusion of specific Southeast Asian American groups in Yale, but including them in Harvard, is a really interesting and curious note. I’ve written in the past that, sort of at the practical level, it’s a bit—it’s not a bit—it’s a lot misleading. It’s manipulative and advances a bit of a false narrative about Asian Americans. And I think it engages in what we call sort of a racial project to overtly reclassify the Asian American racial category, relying again on old stereotypes about Asian American academic achievement.

But it also sort of counters state-based racial and ethnic classifications used by the Census Bureau, used by the Department of Education, used by OMB, right. It does not consider how Southeast Asian Americans have been and are racialized, as well as how they’ve built pan-ethnic Asian American coalitions along within and with other Asian American subgroups.

So the implications of this sort of intentional racialized action, I think, are threefold. First, this process, sort of trying to redefine who is Asian American and who isn’t, demonstrates that SFFA cannot effectively argue that race-conscious admissions harms Asian Americans. They wouldn’t be excluded if that was the case.

Second, it illustrates that Ed Blum and his crusade for sort of race—not using race in college admissions is actually really not focused on advancing justice for Asian Americans, as he claims. And then finally, I think that this maneuver, if realized, will really disenfranchise educational access and opportunity for many Asian Americans, including Southeast Asian Americans and other communities of color.

Of course, this case hasn’t received a lot of attention, given that we just heard from Harvard and UNC at the Supreme Court about a month ago. But I think it provides some really important considerations regarding the upcoming Supreme Court decision.

Nonetheless the decision for Harvard and UNC, we’re all sort of on pins and needles until we hear about it in spring and summer. And I was there in Washington for it, and so what I’d actually like to do is actually share some interesting notes and items that sort of struck out to me during the oral arguments.

So I think in both cases we heard the justices ask many questions regarding the twenty-five-year sunset of using race in college admissions, right, something that Justice O’Connor wrote in the Michigan case. I think the solicitor general, Solicitor General Prelogar’s response at the conclusion of the case was really insightful.

She said—and I’m sort of paraphrasing here about why we—in addressing some of the questions about that twenty-five-year sunset, she basically said that society hasn’t made enough progress yet. The arc of progress is slower than what the Grutter court had imagined. And so we just suddenly don’t hit 2028—that’s twenty-five years from the decision—and then, snap, race is not used in college admissions anymore.

There was also a lot of discussion regarding proxy approaches to so-called race-neutral admissions, right, yet still being able to maintain some or similar levels of racial diversity. I think what we know from a lot of empirical research out there is that there’s really no good proxy variables for race. Certainly Texas has its 10 percent plan, which really only works to a certain extent and does not actually work well for, say, private schools that draw students from across all fifty states and the territories in the Caribbean and the Pacific. And again, as the solicitor general stated, it doesn’t work well for the service academies either, for really similar reasons.

I do think the line of questioning from the chief justice again related to what sounded like a carveout exemption for our U.S. military schools, our service academies. What’s really interesting, and might be of actually specific interest for the CFR community, of course, our service academies practice affirmative action and are in support of it.

And this was also argued in an amicus brief written by retired generals and admirals. And they argued that race-conscious admissions is necessary to build a diverse officer corps at both the service academies as well as ROTC programs at various universities across the country, which, in their words, they say builds a more cohesive, collaborative, and effective fighting unit, especially, quote, given recent international conflicts and humanitarian crises which require our military to perform civil functions and call for heightened cultural awareness and sensitivity in religious issues.

And so, to a certain extent, I think that same line of logic can also be extended to, for example, our diplomatic corps, and certainly many corporations. We also saw briefs from the field of medicine, from science and research, have all written in support of race-conscious admissions, along the same sort of pipeline issues as their companies and organizations. And they argue that their work benefits from a highly educated, diverse workforce.

But what was interesting, was that there wasn’t much discussion about Asian Americans. It was only brought up sort of a handful of times, despite the fact that certainly that’s sort of the origin story of the sets of lawsuits. And perhaps—to me perhaps this is simply an indication that the case was really never about Asian Americans from the beginning. And certainly the finding from the district court shows that Asian Americans are not discriminated in this process at Harvard.

And so we will all sort of see how the Court rules next year, if they uphold precedent or not, and if they do not, how narrow or how broad they will go. Justice Barrett did have an interesting question in the UNC part of the case about affinity groups and affinity housing on campus. So, for example, my undergraduate alma mater, UC Berkeley, has this for several groups. They have affinity housing for Asian Americans, African Americans, Native Americans, women in STEM, the LGBTQ+ community, Latinx students, among many, many others, actually.

So I think a possible area of concern is if they go broad, will we see a ban on these types of race-based practices on campus? Would that impact sort of thinking about recruitment efforts? So these so-called race-neutral approaches, sort of recruitment and outreach services for particular communities. Or would that impact something like HBCUs and tribal colleges, HSIs and AANAPISIs, or other MSIs? How does that all fit in, right? I think that line of questioning sort of sparked a bit of concern from folks and my colleagues.

But I think, though, in conversation, we don’t think the Court has really any appetite to go that far. And I’m certainly inclined to agree. But end of the day, that line of questioning was rather curious.

And so, with that, I thank you for letting me share some of my thinking and about what’s going on. And I would really love to be able to engage in conversation with all of you.

FASKIANOS: Wonderful. Thank you so much.

And we’d love to hear now from you all questions and comments, and if you could share how things are happening on your campuses. Please raise—click on the raised-hand icon on your screen to ask a question. If you’re on an iPad or tablet, you can click the More button to access the raised-hand feature. I’ll call on you, and then accept the unmute prompt, state your name and affiliation, followed by your question.

You can also submit a written question in the Q&A box or vote for questions that have been written there. And if you do write your question, it would be great if you could write who you are.

I’m going to go first to a raised hand, Morton Holbrook. And there you go.

Q: I’m there, yeah. Morton Holbrook from Kentucky Wesleyan College in Kentucky.

Thanks, Professor Nguyen. Sort of a two-part question here. One is, how do you reconcile apparent public support for affirmative action with the number of states, I think ten or twelve states, that have banned affirmative action? Are their legislators just out of touch with their people, or what?

And the second part is, a recent article in the Washington Post about UC Berkeley’s experience, where the number of African American students simply plummeted down to about 3 percent, and at the same time that campus is still very diverse in other respects. Have you made a study of all the states that have banned affirmative action? Have they all had that same result with regard to African Americans? Or where does that stand? Thank you.

NGUYEN: Thank you. Thank you for the really excellent question.

I think it’s about—I think you’re right—around nine, ten or so states that have banned affirmative action. You know, I’ll be completely honest with you. I’m really just familiar with the bans that were instituted both in California and in Michigan, and those were through state referendums, right, and not necessarily legislature. So in this case, this is the people voting for it.

And so I think that’s a really tough nut to crack about how do you reconcile these bans at the state level versus sort of what we see at the national level. And so I think this is sort of the big challenge that advocates for racial equity are facing in places like California. They actually tried to repeal this in California recently, in the last decade. And again, that failed.

And so I think part of the issue here is there’s a whole lot of misinformation out there. I think that’s one key issue. I sort of said in my opening remarks there that, at least in some of the popular media pieces today about these cases, the way Asian Americans are sort of understood and written about is really not aligned with a lot of the rich empirical research out there that shows quite the contrary, as well as sort of historical research that shows quite the contrary.

And so I think there’s a lot of public opinion being formulated as well as, again, just sort of misinformation about the topic that might be leading folks to think one way or another.

To your second question about UC Berkeley, my alma mater, you’re right. After that Prop 209 ban, you saw a huge decline in undergraduate enrollment, specifically of African American students. And so Berkeley has been trying every which way to figure out a race—a so-called race-neutral approach in order to increase those numbers. And I think they are trying to—they are really trying to figure it out.

And I think that’s why UC Berkeley, UCLA, other institutions submitted amicus briefs in support of Harvard, in support of UNC, because they know that there are not a lot—when you can’t use race, that’s a result that you end up with. And that’s because there are just not good proxy variables for race. SES or economic status is often talked about a lot. That again isn’t a good variable. Geography can—to a certain extent can be used.

All these can sort of certainly be used in some combination. But again, they do not serve well as proxy variables. And I think that’s why we see those numbers at Berkeley. And I think that’s why Berkeley was so invested in this case and why all those campus leaders submitted amicus briefs in support of Harvard and UNC.

FASKIANOS: Thank you.

I’m going to take the next written question or first written question from Darko Spasevski, who’s at the University of Skopje, North Macedonia: Do you think that in order to have successful affirmative actions in the higher education this process should be followed by affirmative actions in the workplace? Are the benefits—if the affirmative actions are only promoted at the level of higher education but are not at the same time continuing at the workplace?

I guess it would be the opposite. Is it—you know, basically, should affirmative action be promoted in the workplace as well—

NGUYEN: Yeah, I think—

FASKIANOS: —once you get past the higher education?

NGUYEN: Got it. Yeah, I think I understand that question. Actually, this was something that came up during this recent Supreme Court case. Again, the solicitor general was talking about specifically the briefs from the retired generals and admirals, as well as from various executives and corporations, talking about how affirmative action is so important at the university level because then it helps build a pipeline to recruit folks to work at those organizations or serve in the military, as well as that it trains all students, right, and lets them access and achieve the benefits of diversity and use that in their future employment, which research from areas of management show that that increases work productivity. It increases their bottom line, et cetera, et cetera.

And so actually, in that argument, the—I think it was Justice Alito that asked, are you now arguing for this in the private sector, in corporations? And the solicitor general quickly said no, no. The context of this lawsuit is specifically or the position of the United States is specifically just focused here on higher education. And I think that certainly is relevant for this conversation today, as well as sort of my own area of expertise.

But I think my colleagues in the areas of management and a lot of that work shows, I think, similar types of results that, when you have diverse workforces, when you have folks who can reap the benefits of diversity interactions, interracial interactions, then there are certainly a lot of benefits that come from that, in addition to creativity, work efficiency, so many things.

And so, again, I’m not here to sort of put a position down regarding affirmative action in professional settings, only because that’s not my area of expertise. But certainly other areas of research have pointed in similar directions as what’s sort of shown in the higher-education literature.

FASKIANOS: (Off mic) Renteln? And let’s see if you can unmute yourself. If you click on the unmute prompt, you should be able to ask your question. Not working? Maybe not.

OK, so I will read it. So—

Q: Is it working now?

FASKIANOS: It is, Alison. Go ahead.

Q: Thank you. I’m sorry. It’s just usually it shows me when I’m teaching.

Thank you for a really interesting, incisive analysis; really enjoyed it.

I wanted to ask about whether it’s realistic to be able to implement policies that are, quote, race-neutral, unquote, given that people’s surnames convey sometimes identities, ethnic and religious identities, and also activities that people participated in in professional associations. And when people have references or letters of recommendation, information about background comes out.

So I’m wondering if you think that this debate really reflects a kind of polarization, a kind of symbolitics, and whether, while some worry about the consequences of the Supreme Court’s decisions, this is really something that’s more symbolic than something that could actually be implemented if the universities continue to be committed to affirmative action.

NGUYEN: Really great question. Thank you so much for asking it.

This was actually a big chunk of the conversation during oral arguments for both at UNC and both at Harvard, right. The justices were asking, so how do you—if you don’t—and this was sort of the whole part about when they were talking about checking the box, checking sort of your racial category during the application process. And so they asked, if you get rid of that, what happens when students write about their experiences in their personal statements or, as you said, recommenders in their letters in about that?

And so this was where it got really, really—I think the lawyers had a really hard time disentangling it, because for people of color, certainly a lot of their experiences, their racialized experiences, are inextricably linked to their race and their identity. And so removing that is, at an operationalized level, pretty hard to do and pretty impossible, right.

So they actually had some interesting examples, like one—and so they’re asking hypotheticals. Both lawyers—both the justices on all the various spectrum of the Court were asking sort of pointed questions. Where I think one justice asked, so can you talk about—can you talk about your family’s experiences, particularly if your ancestors were slaves in the United States?

And so the lawyers—this is the lawyer for SFFA saying that would not—we cannot use that. They cannot be used in admissions, because that is linked to their race. But can you—so another justice asked, can you talk about if, you know, your family immigrated to the United States? Can you—how do you talk about that? Can you talk about that? And the lawyers said, well, that would be permissible then, because that doesn’t necessarily have to be tied to a racial group or a racial category.

So again, it’s very—I think what they were trying to tease out was how do you—what do you actually—what would actually be the way to restrict that, right? And so I guess, depending on how the justices decide this case, my assumption is or my hope is, depending on whatever way they go, they’re going to—they will, one way or another, define or sort of place limits if they do end up removing the use of race.

But I completely agree with you. Operationally, that’s not an easy thing to do, right? And when do you decide what fits and what doesn’t fit? And that will be the—that will be a big, big struggle I think universities will face if the courts ban the use of race in college admissions.

FASKIANOS: Let me just add that Alison Dundes Renteln is a professor of political science at the University of Southern California.

So I’m going to go to the next written question, from Clemente Abrokwaa at Penn State University: Do you think affirmative action should be redefined to reflect current social-demographic groups and needs?

NGUYEN: Oh, that’s such a fun question, and particularly for someone who studies race and racial formation in the United States.

And so I—you know, this is—this is an interesting one. I think—I think sort of the way we think about—at least folks in my profession think about race versus sort of the way—the way it’s currently accounted for in—by state-based classifications/definitions, those tend to be a little bit behind, right? That’s normal and natural. But I think what we’ve seen in the United States over time is race has—or, racial classifications and categories have changed over time and continue to evolve, right? The Census—the Census Bureau has an advisory group to help them think through this when they collect this data.

And so—and so I’ll be honest with you, I don’t have a good answer for you, actually. But I think—I think that certainly, given the fact that racial categories do shift and change over time and the meaning ascribed to them, we certainly need to take a—if we continue using approaches for—race- or ethnic-based approaches in college admissions, that’s something that absolutely needs to be considered, right? But at the same time, it also means, as we think about sort of the future and what does that look like—and maybe, for example, here we’re talking about folks who are—who identify as mixed race. But at the same time, we need to look historically, too, right? So we don’t want to—the historical definitions and the way people would self-identify historically. And so I think—I think, certainly, the answer, then, would be—would be both, right?

But what a fun question. Thanks for that question.

FASKIANOS: I’m going to take the moderator prerogative here and ask you about: How does affirmative action in higher education in the United States relate to, you know, relations abroad?

NGUYEN: Yeah. Well—

FASKIANOS: Have you looked at that connection?

NGUYEN: Sure. I think—I think that—I think that’s really, really interesting. So something that we wrote in our amicus brief particularly regarding—it was sort of in response to SFFA’s brief and their claim, which was about sort of why Asian Americans here were so exceptional in their—in their academic achievements. I think that’s a—tends to be a big stereotype, model minority stereotype. That is how Asian Americans are racialized.

So one thing that we sort of wrote in our brief was this actually is really connected to a certain extent, right—for some Asian American groups in the United States, that’s linked to U.S. foreign policy and U.S. immigration policy about who from Asia is allowed to immigrate to the United States, what their sort of educational background and requirements are. And so I think when we think about the arguments being made in this lawsuit and the way Asian Americans are discussed, certainly one key aspect there is certainly connected to historic U.S. foreign policy, particularly around—as well as immigration policy, particularly around the 1965 Immigration Act.

So certainly they are connected and they’re linked. And something that we—that I wish more people could—more people would read our brief, I guess, and get a good understanding of, sort of to add to the complexity of this lawsuit.

FASKIANOS: Great. I’m going to go back to Morton Holbrook.

Q: Yes. Still here at Kentucky Wesleyan College.

Speaking of amicus briefs, what do you think of the Catholic college brief from Georgetown University? Here we have a Court that’s been very partial towards religious beliefs, and they’re arguing that their religious beliefs requires them to seek diversity in college admissions. How do you think they’ll fare in that argument?

NGUYEN: Yeah. This was also brought up in—during oral arguments. I can’t remember if it was during the UNC part or the Harvard part. And I’ll be completely honest with you, I haven’t read that brief yet. There’s just so many and I wasn’t able to read them all.

But this was a really interesting—really interesting point that was sort of raised in the courts. And I don’t—I don’t—I don’t have a good answer for you, to be completely honest. I’m not sure how they’re going to, particularly given that these—that this Court seems to be very much in favor of religious liberty, right, how they would account for that amicus brief from the Catholic institutions. And so that will be an interesting one to watch and to see—to see how it’s framed, and certainly it would be interesting if they played an outsized role in the justices’ decision-making here.

But great question. Great point to raise and something I’ll add to my reading list for this weekend.

FASKIANOS: So Alison Renteln came back with a question following on mine: Why are numerical quotas acceptable in other countries like India but not in the United States?

NGUYEN: Yeah. Great, great question there. You know, also in other places like in Brazil.

And so we, in fact, used to use numerical quotas before the Bakke decision. It was the Bakke decision, University of California v. Bakke, that eliminated the use of racial quotas, also eliminated the use of what I said earlier about sort of the rationales for why we can practice race-conscious admissions, which was it cannot be used to address historic racism or ongoing racism. In fact, the only rationale for why we can use affirmative action today as a—as a factor of many factors, is in order to—for universities to build campus environments—diverse campus environments of which there are benefits to diversity, the educational benefits of diversity that flows for all students. And so, yeah, it was the—it was the Supreme Court in the late 1970s that restricted the use of quotas among many other—many other rationales for the practice of race-conscious admissions.

Thank you for that question.

FASKIANOS: Great. And I’m going to go to next to raised hand from Emily Drew.

Q: Great. Thank you. I’m listening in from Oregon, where I’m a sociologist. Thank you for all of these smart comments.

My question is a little bit thinking out loud. What do you think about—it feels like there are some perils and dangers, but I’m hoping you’ll reframe that for me, of some racialized groups like indigenous people saying, well, we’re not a race anyway—we’re tribes, we’re nations—so that they’re not subject to the ban on race-conscious practices, which, it’s true, they’re a tribe. They’re also a racialized group. And so I’m struggling with groups kind of finding a political way around the ban or the potential ban that’s coming, but then where does that leave us in terms of, you know, each group, like, take care of your own kind of thing? Can you just react a little bit to that?

NGUYEN: Yeah. Thanks for that really wonderful question. Fascinating point about, yeah, the way to say: We’re not a racial group. We’re sovereign nations or sovereign tribes.

I think what we’re going to see, depending on how the courts go, are folks trying—schools potentially trying a whole host of different approaches to increase diversity on their campuses if they’re not allowed to use some of these racial categories like they’ve been doing already, in a holistic approach. And so, yeah, that might be a fascinating way for indigenous communities to advance forward.

I will say, though, there was one point, again, in the—during oral arguments where they started talking about sort of generational connections to racial categories. And so they’re saying if it’s my grandparents’ grandparents’ grandparents, right, so sort of talking almost about, like—at least the way I interpreted it, as sort of thinking about connecting one to a race via blood quantum. And so when does that—when does that expire, right? And so is it—is it—if you’re one-sixteenth Native American, is that—does that count?

So there was a short line of questioning about that, and I think the—I think the lawyer tried to draw a line in the sand about, like, at what point do you not go—what point does it count and when does it not count. And I think that’s actually a bit of a misstep, primarily because that should be determined by the sovereign nation, by the tribe, about who gets to identify as that—as a member of that nation or that tribe and how they—I think—you know, I think, talking to indigenous scholars, they would say it’s about how you engage in and how you live in it, rather than—rather than if it’s just a percentage.

So, again, those will be the tensions, I think, that will—that already exist, I should say, regardless of the Court decision. But a fascinating point about states sort of exercising indigenous law there to see if that would be a way to counter that.

Certainly, I should—I should have said at the top of this I’m not trained as a lawyer. And so I have no idea how that would be sort of litigated out, but certainly I imagine all different entities will find ways to move through this without—in various legal fashions.

And I was talking to a colleague earlier today about this and he said something about at the end of the day this might be something that, if Congress decided to take up, they may—this would be an opportunity for Congress to take up, to maybe develop a narrow path for institutions. But certainly it’s—the courts seem to be the favored way for us to talk about affirmative action.

FASKIANOS: There’s a written question from John Francis, who is a research professor of political science at the University of Utah: If the Court were to strike down affirmative action, would state universities give much more attention to geographic recruitment within their respective states and encourage private foundations to raise scholarship funds to support students of color who live in those areas?

NGUYEN: Great, great question there. And I think that would be one of many things that universities are doing.

We’re seeing schools where the states have banned affirmative action do things like this, in Michigan and certainly in California. But to a certain extent, it actually doesn’t work—I guess in California’s context—that well. I think, if I’m not mistaken, the head of admissions for UC Berkeley said in one of many panels—he’s wonderful, by the way—on one of many panels, like, that doesn’t work very well in the California context because only so many schools have sort of that large concentration of African American students and for them to sort of go there and recruit out of that. So it’s not a—the sort of geographic distribution is not so easy and clean cut as—I think as one would normally perceive. And so it actually develops a big, big challenge for state institutions, particularly state flagship institutions, in particular geographic contexts.

Now, I don’t know if that’s the case, say, in other parts of the country. But certainly within the UC system, that seems to be a prevailing argument. And I think more than ever now, everyone has been looking to the UC system for insight on what they—on how to approach this if the courts decide next year to ban the use of race.

I should also admit that—or, not admit, but proudly declare that I’m a product of the UC system. All of my postsecondary education is from those schools. And so I know that this has been a constant and ongoing conversation within the UC system, and I imagine that will be the case for schools both public and private across the country.

But I think part of that calculation then requires institutions to think about not just from private donors, but really from state legislatures as well as the institutions themselves have to really think about how they want to dedicate resources to achieving diversity if they don’t—if they’re unable to use race. I think a tremendous amount of resources. So, to a certain extent, it’s going to make institutions put their money where their mouth is. And so we’ll see if that—this will all be interesting areas to investigate, depending on how the courts decide come next year.

FASKIANOS: There’s a raised hand or there was a raised hand from Jeff Goldsmith. I don’t know if you still have a question.

Q: Yeah. So I’ve been trying to figure out exactly how I might want to pose this question, but I was struck by—sorry, this is Jeff Goldsmith from Columbia University.

I was struck by the line of questioning that you mentioned from Justice Barrett about affinity housing and your thoughts about how narrow or far-reaching a decision striking down affirmative action might be. And I guess it seems like there is the potential for at least some gray area. And you know, we run things like summer research programs that are intended to bolster diversity. There are in some cases—you just sort of mentioned the scholarship opportunities focused on increasing the number of students from underrepresented backgrounds. And I guess I’m just sort of curious if you have any speculation about how narrow or far-reaching a decision might be.

NGUYEN: Thanks for that question. Yeah.

So I think this was—we—prior to the—to oral arguments, people had sort of talked about this a little bit. Would this be consequential? And I—in fact, the day before—the day before oral arguments, I was on a different panel and I sort of brought this up. And actually, a federal judge in the audience came up to me afterwards and said, you know, I don’t think the Court’s got a lot of appetite for that. And I said, hey, I completely agree with you, but certainly, you know, we’ve—in recent times we’ve seen the Court do more interesting things, I guess, if you’ll—if I can use a euphemism. And so—and so, it almost feels like everything’s on the table, right? But I think, generally speaking, I’m inclined to agree that if the courts strike down race-conscious admissions, they will do it in a very narrow and highly-tailored way.

That was my feeling going in. That was my feeling on October 30, right? Then, on Halloween—October 31—while listening to the—to the oral arguments, you had that very short exchange between Justice Barrett, specifically during the UNC case, ask about affinity groups and affinity housing, and it felt like it sort of came out of left field. And not—and so I think that raised some curiosity for all of us about what—about why that was a line of questioning. But nonetheless, I think at least my—I’ve never been a gambling person, but if I were I would say that if they do strike it down that I think the justices wholesale don’t—I don’t think they would have a large appetite to do something so broad and sweeping like that.

At least that’s my hope, if that’s the direction we’re moving in. But I guess that’s why I said earlier that we’re sort of all on pins and needles about that. And if that is struck down, then I think that’s got a lot of consequences for scholarships, recruitment programs, summer bridge programs, potentially minority-serving institutions, and all of the above.

So, yeah, I—again, it seems like that’s a big reshaping of postsecondary education, not just in admissions but sort of the way they operate overall. And I don’t know if that would happen so quickly overnight like that. But that, at least, is my hope.

FASKIANOS: (Off mic.) There you go.

Q: (Laughs.) Thank you so much for your talk. Clemente Abrokwaa from Penn State University.

And my question is, right now there is a push for diversity, equity, and inclusion in many areas. How is that different from affirmative action?

NGUYEN: Well, great question. And actually, that’s a really difficult one for me to answer only because I think if we were to go and ask ten people on the street what did we mean by diversity, equity, and inclusion, everyone would give you sort of a very different and potentially narrow or a very broad definition of what it means, right?

But I think with respect to affirmative action, particularly in a higher-education context, it is specifically about college admissions, specifically about admissions and how do you review college admissions. And in this case here, there is a very narrow way in which it can—it can be used for race—in this case for race, that it’s got to be narrowly tailored, that it can only be a factor among a factor in a broad holistic approach, that you can’t use quotas, that it can’t be based on rectifying previous or historical racism, and that the only utility for it is that it is used to create learning environments where there are educational benefits that flow from diversity and the interactions of diversity. Versus, I think, broader conversations about DEI, while of course centered on admissions, right, which is sort of one of many dimensions in which you achieve DEI, right?

We like to think that—and I’m going to be sort of citing a scholar, Sylvia Hurtado, out of UCLA, who argues that, admissions help contribute to one dimension, which is the composition of a university, the sort of just overall demographics and numbers of that university. But there are many other dimensions that are important in order to create learning environments in which we can achieve DEI-related issues. That means that we have to look at the institution and the way it’s acted historically and contemporarily. We have to look at behavioral interactions between people on a university. There are psychological dimensions, among many others.

And so that’s how I think about it. I think that’s how at least my area of scholarship and in our academic discipline we think about it and for folks who study education think about it. And so hopefully that answers your question. And, yeah, hopefully that answers your question.

FASKIANOS: I’m going to take the next question from Alison Renteln: What policies appear to be the best practices to increase diversity at universities, including disability? And what are the best practices from other countries?

NGUYEN: Oh, wow, that’s a really good question.

So we—you know, I think—I think a lot of other countries use quotas. Brazil might be sort of the example that most folks think about when they think about the way affirmative action’s practiced abroad. And certainly that’s not something that we can do here in the United States. So that’s—that—really, really important consideration.

Sort of other practices that I think that are—that are not sort of the ones that are narrowly tailored by the courts are what I said earlier about sort of what the UC system has to really do and has to really grapple with, right, are using every sort of—everything that they can think of under the sun to go out and try to do outreach and recruit and build those pipelines throughout the entire education system. There’s been some work by some wonderful folks in our field—Dominique Baker, Mike Bastedo—who looked at even sort of just a random sampling, if you were able to do a lottery system, and that has actually found that that doesn’t actually increase diversity either, and so—racial diversity either. And so I think that’s—so, again, this all points to how crucial affirmative action is in being able to use race in order to achieve compositional diversity on a college campus, and that other proxy variables just don’t even come close to being able to help estimate that.

And so, yeah, that’s—I should also note that really, we’re only talking about a dozen or so schools. Oh, I’m sorry, more than a dozen, but a handful of schools that this is really a big issue for. Most schools in the United States don’t necessarily—are not at this level of selectivity where it becomes a big issue of concern for the national public. Nearly half of all of our college-going students are at community college, which tend to be open-access institutions. And so something also to keep in mind when we talk about affirmative action.

FASKIANOS: Thanks. We only have a few minutes left. Can you talk a little bit more about the work of NYU’s Metropolitan Center for Research on Equity and the Transformation of Schools?

NGUYEN: Yeah. So I’m a faculty affiliate there, and maybe I’ll preface by saying I’m new to NYU. I just came here from the University of Denver, and so I’m still learning about every wonderful thing that Metro Center is doing. It’s led by a wonderful faculty member here named Fabienne Doucet and really focused on sort of a handful of pillars—certainly research on education, but also a real big tie for communities. So real direct engagement with schools, school systems in order to advance justice in those schools. And so they have a lot of contracts with school districts and public entities, as well as nonprofit groups that come in and work as an incubator there on a host of issues.

And so I think the work there is really exciting and really interesting. It tends to be—and I should say also very expansive. So the whole sort of K-12 system, as well as postsecondary. And I think that’s the role that I’m looking to play there, is to help contribute to and expand their work in the postsecondary education space.

FASKIANOS: Great. And maybe a few words about your other—you have many, many hats.

NGUYEN: Oh. (Laughs.)

FASKIANOS: NYU’s Institute for Human Development and Social Change.

NGUYEN: Yeah. They do some really wonderful, interesting work. And it’s really, actually, a center and a space for faculty to come in and run a lot of their research projects, including my own, which is the MSI Data Project, where we are looking at all the various different types of minority-serving institutions in the United States, how they change over time, and how the federal government thinks about them and accounts for them, as well as how do the schools themselves think about them, all with the goal here in order to work with students of colors and give them access and opportunity.

I should say, depending on how you count them, MSIs enroll a huge and significant proportion of all students of color, almost half, in the country, despite making up such a small percentage, about 20 percent, of all college and universities. And so this is—certainly when we talk about affirmative action, we—I think a lot of folks center it around racial justice or social justice. I think sort of the other side of the same coin here are schools like minority-serving institutions which enroll and provide access to and graduate a really significant proportion and number of students of color and certainly an area that we need to bring a lot more attention to when we talk about issues of race and education.

FASKIANOS: OK, I’m going to take one—try to sneak in one last question from John Francis, who’s raised his hand. You get the last one, John.

Q: OK, can you hear me?

FASKIANOS: We can.

Q: Oh, that’s great. So my question is—has a certain irony to it, but there’s been a great deal of discussion of late that men are not succeeding in college, but that women are, and that certainly should be encouraged, but also there should be ways to find perhaps even changing when people start out in elementary school how that may be shifted to help men later on. And in this discussion, when we’re looking at that issue and it’s gaining some latitude, some strength, should we think about that as a possible consideration that universities should have greater latitude in making decisions to reflect the current set of demographic issues, be it race or gender or others? Has this argument come to play any kind of role?

NGUYEN: Great question and a good last one, and if I can be completely honest, not an area that I’m—gender-based issues are not an area that I’ve done a whole lot of work in, if really any work, but I will attempt to answer your question as best as I can here, which is, I think—and sort of connected to sort of the larger conversation and question that we had that someone posed earlier about sort of the complexity and changing nature of racial and ethnic categories and what does that mean, and how do universities address that? And I think this is again where it requires universities to have some flexibility and nimbleness and autonomy to be able to address a lot of these issues, including what you’re talking about, John, depending on the context and the times in which we are in. You know, certainly one big area also connected to—for men in postsecondary education is sort of the huge gap we see for men of color from particular groups, and really we see foundations, we see the Obama administration really play—invest in this work.

So, John, from what it sounds like, it sounds like I agree with you here about—that universities need flexibility and autonomy to be able to address these issues. Now, that may—at the same time, we don’t want to dismiss the fact that the experiences of women in postsecondary education—while certainly we see numbers increasing in enrollment in a lot of aspects, in certain disciplines we see a sharp decline; we see—in STEM and engineering fields, in the way those disciplines may be organized to sort of push out women. And so I think, again, this is why it requires some nimbleness and some autonomy from the universities to be able to design approaches to support students of different types of diversity on their campuses, in particular areas, disciplines, and majors. And so I think that’s the—I think that’s the challenge, is that we need to be a lot more intentional and think more precisely and run our analyses in ways that make sense for particular intersectional groups on campus and in the areas of which they’re studying.

So yeah, I think that’s the—one of the big challenges that universities are facing today and certainly depending on how the courts rule, we’ll see if that ends up restricting autonomy and removing tools or allowing those tools to remain for various types of targeted interventions for various minoritized groups.

FASKIANOS: Wonderful. Well, Mike Nguyen, thank you very much for this terrific hour and to all of you for your questions and comments. This is really insightful and we appreciate it. Welcome to New York, Mike, your first New York—holidays in New York.

So we will be resuming the series in January and we will be sending out also the lineup for our winter/spring semester of the Academic Webinar series, which is really designed for students, later this month. We do wish you all luck with administering finals this week and grading them and all those papers; I don’t envy you all. We have different deadlines under—at the Council that we’re working on right now, so it will be a busy month, but we hope that everybody enjoys the holidays.

We will resume in January, in the new year, and I encourage you all to follow us at @CFR_Academic on Twitter. Visit CFR.org, ForeignAffairs.com, and ThinkGlobalHealth.org for research and analysis on global issues.

Again, thanks, Mike, for this, and to all of you.

NGUYEN: Thank you so much for having me. Really an honor.

FASKIANOS: Wonderful. Take care, everybody.

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