Special Episode: A Fireside Chat with Josh Porter, Esq. about the Future of Affirmative Action

Join Hyatt for a special fireside chat with Josh Porter, Esq., the former Director of Diversity and Inclusion at the University of Alabama Law School, about the future of affirmative action in the wake of the Supreme Court's finding the admission policies of Harvard and UNC at Chapel Hill unconstitutional. 

Transcript

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Welcome to the bevy podcast on the bevy podcast, we have fun, thoughtful conversations with friends. Pull a seat up to the table. Come chill with us. Yo, what's up? What's up? What's up? It's the Bevy podcast and we are having a special feature episode today. As you already know, I dropped a primer on yesterday's affirmative action decision, and today we are joined by a friend of the podcast, and also an amazing, awesome lawyer Josh Porter. What up, Josh? What's going on, man? What's going on? yeah, just, hanging out before the long weekend. you know, usual going on over here. How's it going? Oh man. As you know, it has been quite the day at the Supreme Court between yesterday's decision on affirmative action, which we wanna get your thoughts on you being a former D N I guy at the University of Alabama and professor, so you know all about, but, what this decision might mean on the future landscape of affirmative action. I'm doing pretty well otherwise, the Supreme Court is just, they keeping us busy, keeping us busy. Yeah, man. Yeah. yeah, and thanks so much for the invite, man. This is always, always good to, to be on here and just to talk about these things. I, I think I wanna start first like, just kind of talk about it on a personal level. I think about that, you know, how much, just broadly speaking my career has benefited from. Implications are just ideas of integrating race or just racial backgrounds, diverse backgrounds into certain settings, right? For instance, I went to University of Georgia for law school. I did not have the numbers for the University of Georgia for law school. go bull log. It makes me like second guess so many things. Like what I've gotten in, I'm, I'm, I'm sure I would've gotten it somewhere, but, you know, like how w. How different would things have been, like had, you know, some of these things not been in place? And in terms of like what it is, just broadly speaking, affirmative action. Like it's essentially a system in which you can consider race a bunch, a lot of different factors, test scores, gpa, essays, any type of cool volunteer experience. It just really adds that to the pot of things that you can consider, at least in the, in the university context, right? It's not a quota. It doesn't mean, oh, we're we, you know, we have to have this many people of this race in order to gotcha, to bring in an incoming class. It's not, intended to bring in lesser qualified people. There are a lot of systemic barriers in this country. I'm sure we're all aware, especially for a black and brown, From people in terms of, access to quality education, access to economic opportunities, things of that nature, and just kind of accounting for those things, right? It's the idea of, you know, there's, you know, black or brown suits are disproportionately first generation, meaning no one else in their family has done this. Mm-hmm. So considering that aspect of it, having to overcome that, having to overcome black and brown youth, Being overrepresented in poor quality schools and schools that significantly need funding and resources. So that's another barrier not to mention the criminal justice system and, access to just all these other learnings, both, you know, within the community and just in the broader scale. So broadly speaking, that's how affirmative action works. Just assesses a holistic approach to a candidate. Like all that also incorporates these ideas are backed by statistics, certain disadvantages of black and brown, brown people. as you're describing it, it makes, a lot of sense that if you are considering having a candidate come to your university or your law school or your business school, that you want to put that person in context and yeah. As we know, race plays a pretty salient feature in our society today, if not one of the, some might argue a determinative feature in our society. Is it just for black and brown folks or is it for other minorities or other people too? Oh, right. Yeah. It, it also, comes into play as it relates to other protected classes. Protected groups, such as, gender. Mm-hmm. sexual orientation, things of that nature as well. of course, Stu schools, and this is still true by the way, like the, the ruling yesterday doesn't, doesn't affect this, but overall, all public u institutions, it, even private institutions, any, any institution that receives any type of federal funding, they have to comply with our civil rights laws. Meaning that they can't discriminate on the base of age. sex, disability, race, religion as well. Mm-hmm. mm-hmm. So it does, it does have a broader benefit, but I think the reason I put it in the context of black and brown youth is that that's kind of the origin of this, this UNC lawsuit was, was the last shooter to drop in terms of this, I mean, we've seen Fisher v Texas before this. There was, the grass and gruder cases, against University of Michigan, mm-hmm. Were all of these Supreme Court cases kind of tackled the same issues and as it relates to how much should race or should, should these things be considered? I believe in this instance, the original lawsuit came from, a student that felt that, that they were disadvantaged as compared to to, to black and Latino youth or applicants, broadly speaking. I'm glad you brought it up because. Affirmative action has been on the books for a long time, as you described. Right. And the Supreme Court, first considered this issue back in the seventies and there they were like, no, we're not going to allow racial quotas. And like a case called Bachi and involved a white applicant who had applied to uc, Davis' Medical School, he's had applied twice in a row and he had. He had the G P A, he had the MCAT scores, but he didn't have the admission. And he pointed to a program that the graduate school had in place that had a set aside for minority students. And he said that was the reason why he didn't get in, and that violated the equal protection clause. So what I find interesting about this case, about that particular case is that the graduate school put forth like four or so interests. You know, they said like, look, we have a good reason that we're using race. There's a good reason that we have the program that we have. And one of the interests they talk about is like there's this broader pervasive societal discrimination that's going on, and we're trying to remedy that. Because if you look at it historically, These, higher levels of learning, and particularly graduate schools, they've been closed to minorities. And so we need to put in place a specific set asides, you know, to make sure that minorities are represented. And the Supreme Court looked at that, and there were some justices, including Justice Marshall, the famous civil rights lawyer, who was like, yes. This is good to go. So there were four who supported it and then there were four on the other side. Said, nah, nah, nah, nah, that's just, nope. You can't do anything remotely to address like societal discrimination. And then there was one swing boat, this guy's name was Justice Powell, and he looked at it and said, well, this is, Too, too amorphous. And you know, the reason why I bring up this backstory in this context is that I think part of what the court has been struggling with really is Justice Powell's decision. In that case, in the Bki case, which became controlling, although he was the swing vote and didn't have any other folks sign onto his opinion, he really became like the compass for which. Universities had to make a argument that the compelling interest that they were meeting was this interest in a racially diverse class, which is kind of the terms in which we had been discussing affirmative action up until yesterday when the Supreme Court found that the U N C and Harvard programs. Did not meet that, that interest. But, you know, I'm, I'm curious as, as to your thoughts about that, Josh. Like how much are we just hamstrung by just having really bad precedent? it's a piece of the equation. The fact that like bad precedent things or just things that have been said previously have kind of influenced. Ultimate influence the way that we, we, we look at current decisions on this and education law, broadly speaking. I mean, this also applies to things as it relates to Title IX of the Education amendments of 1972. Mm-hmm. even now our Department of Education, other folks still haven't quite figured out how to kind of, how to appropriately investigate sex discrimination cases, things of that nature. I think it's a piece of it. I think ultimately a lot of this just comes down to. The politicization of anything race based in general. I mean, we see it with critical race theory, and then, governor DeSantis in Florida where essentially it's being stripped out of the schools and keeping my critical race theory isn't even something that K through 12 kids you've been actually learning. Yeah, like it's something like at the university level, but it's kind of been used as this buzzword to like, Essentially take black history and other things out of schools. Yeah. like even Ruby Bridges, like Yeah. About Ruby Bridges. Yeah, exactly. Exactly. I think, was it the University of Texas that's going to, or, or somewhere? I think it's Texas or maybe Florida that's gonna pretty much gutting all their D E I offices at universities. Like essentially all their diversity offices are gonna be, you know, are gonna be gone., I think that, that a lot of this comes down to politics and unfortunately Mm. The folks who are typically the victims of these, these politics are people who've always been the victims of these politics, which are primarily people from, disadvantaged backgrounds, economically and in terms of other factors as well. Yeah. And, and so I mean, the people who are paying the biggest price, it seems. Are the people who have been historically marginalized. I'm curious, thinking about yesterday's decision and kind of like what happened, could you just, just tell us at a high level, you, you spoke a little bit about it, about the plaintiff in the case and challenging this policy that Harvard and U N C had in place. why do you think the court came out the way they did? Privileged, interpretation of what merit actually is. Mm-hmm. That's oftentimes a byproduct of having access to more resources, having access to certain advantages such as going to better schools, going, you know, being a part of communities that are highly educated and trained in certain areas, well-resourced institutions So it honestly wasn't surprising given the current demographics of the Supreme Court. Right. but it is still quite disappointing especially, one Supreme Court Justice, more than the others, given that he himself has acknowledged that he wouldn't be where he is. I mean, he just said this years or years ago, but he wouldn't be, be where he is without, affirmative action policies or similar type policies. You're talking about Justice Thomas, right? yeah, yeah, yeah. And of course this, this is not a surprising result coming from him, but it's just kind of the, the cruel irony of it all, and just the effect that it's had on so many people. Yeah, and I'm glad you touched on the merit point because I think when you think about affirmative action, just in the larger public consciousness, there are just so many myths that kind of run together, that d distort what it is, and I think myth. Number one is what you talked about earlier, which is that this is just a straight quota system that you check a box and then you're automatically admitted. There's another myth, around merit in that when you get to this place in society where you are going off to school, your post-secondary education that you can be considered solely on the basis of. Particular credentials. And I'm curious, like when you were, you know, in the d i space at Alabama, or just more broadly in your life experience, like how do you think about that concept of merit and what do you think should go into that calculus of who gets into a a university and who doesn't? In terms of my experience at Alabama, I was the director of diversity and inclusion there at the law school for a year. there really was a holistic approach and the idea of merit. It wasn't just g p A and LSAT scores, which is where I think that's where some of the discourse like loses its way a little bit in, in the sense that, people are led to believe that, if we're all starting on a level playing field, of course merit. It should be, you know, maybe the objective way to do this is test scores. Maybe there are are other ways, but mm-hmm. I think thinking of merit more broadly of, okay, what do you bring to this institution? what have you overcome to get here? what advantages, disadvantages, were in your still remain competitive or you still could bring value to the institution. And I think just. There are statistics out there, nothing I could quote offhand, but there are statistics saying that more diverse backgrounds, whether it's institutions, whether it's employment, in whatever context, they tend to perform better, right? So if you do narrow it to simply numbers, you're more likely gonna get one type of student, mm-hmm. That doesn't impact the legal profession when I was at Alabama. It doesn't impact the society overall if we're only allowing one person or one group of people to have a seat at the table, or, you know, more likely one group than others to have a seat at, at the table. ultimately it, it leads to Worse experience for everybody, especially in the learning capacity. I can think about just myself, how many people I learned from, from different backgrounds who, got to college or law school or graduate school through unconventional means may not have been right on paper. The best candidate who gone on to do incredible things in their, personal professional lives. Right. so kind of long-winded, meandering thoughts on that, but I think overall, like kind of merit is just this nebulous concept, but it's not just test scores and g p a. Yeah. And I do think, and I do hear like what you're saying about like, yeah, like sure there that can be part of the equation, but as we all know that sometimes the tests are. Necessarily what we think they're testing for. In other words, they might think like, oh, the test shows us a propensity or about this person's intelligence. But really it could just show that they're a good test taker or it could be a proxy for someone's, resources that they have to prepare, prepare for the test, and. You might be good at test taking now some people might hear that and just be totally dismissive of it, but I do think there's something too, and that there's a lot of social science evidence supporting the ideas of different intelligences from emotional intelligence to musical intelligence and so on and so forth. So, I think that none of what we have done around our kind of test taking metrics objective me metrics really kind of accounts for these other types of intelligences, and I think historically like the s a T had been used in the military for some time to kinda assess Aptitude for officers and then they employed it in the higher education context with the idea that they wanted to, hopefully identify more candidates for more diverse backgrounds, not less. So if you think about it through that lens, if it's not serving that purpose, then we should rethink this. And I know during the pandemic. Some colleges and universities suspended using the test altogether and I'm not sure if their test, their classes that they assemble are any, any less competitive. Yeah. And you know, it just made me think of a really good point. we both went to law school and you know, we both practiced law, still practice law. How much of that LSAT actually influenced your ability to practice law? Like, like how much of it really tested on that when you really think about it? Like same, the bar kind of. But the LSAT was a, it was com completely unnecessary, literally from the moment you step on your first day on campus in law school, like there's nothing about the LSAT that was in any way relevant to, oh my gosh. I think that's the same thing with like just test scores. Yes. Broadly speaking, in a lot of ways. Yes. I mean, the, the way that the lsat, let me put it this way. If someone put an LSAT problem in front of me today and. Another person put a brief in front of me to write, like the brief would be great. The LSAT logic problem, who knows? Turns out. Cause it can be just so like arbitrary and, and random, I think that the terms of just like looking at kind of the numbers that the G P A, I think social science also supports this conclusion that that's a greater predictor of success. In college than your, your test scores. Some people might be thinking to themselves, wait, we've been discussing kind of this carte blanche approach to like how we treat them. Shouldn't there be more individualized consideration. So if you are a person from a well off background, but also black or brown, do you think those people should equally be entitled to the benefits of affirmative action? once again, it is, it is, it's an indicator. Like it's not, you know, it's not the end all be all in terms of like, you know, Checking a box, kinda like we talked about, but mm-hmm. It's this idea of, it's one of the things, and even, even being wealthy and black, I mean, you still deal with discrimination, right. In terms of economic aspect of it, that that doesn't, disqualify folks necessarily. It is a good question. Overall, it is, like I said, it's just one thing that you're adding to the mix. It's, it is not, you know, the end all be all. It's not a quota. It's just one of those things where, if there is a tie or if it's close that you kind of consider those type of things. Right. I think the problem that you can't really divorce anyone from, from their race. Are there, you know, any of their identities? I. That's just who they are and that's how they experience the world. So to say that it counts, you know, every well else in their life, but you know, in this one context shouldn't, I think does a disservice to seeing the person as they fully are. seeing people as they fully are does not mean that you are perpetuating stereotypes, which I think kind of the majority opinion says that. These admission programs at Harvard and at n unc Justice Robert writes book, they are just nothing but naked stereotypes because there's no connection that is being shown between the individual applicant's race and how that race will help them contribute to, campus life and activity. And so to that point, it's like, well, you, you're. You're kind of looking at it from the wrong way., does that make sense? Yeah, yeah, it does. It does. I think there's been an issue in terms of the messaging of affirmative action, just kind of, whether it's the idea of diversity and inclusion, whether it's the idea of critical theory. So much of this, in my view, has come down to. Kinda the messaging behind it and what, and much of that is supported by, you know, where you consume your news, where you consume your information generally. oftentimes as a society we look at the same word, the same issue, and based on, you know, selection bias. This is know as a bias in terms of our own upbringing, our own ideas, but also just the things that we read. Because there's a, there's an audience for everybody. You believe something, I'm sure there's YouTube videos about it, and you can mm-hmm. Find information. You can find those niches. You can find those niches. Oh my goodness. Yeah. So it's just misinformation everywhere and it's very difficult, more and more difficult than ever to identify what's true, what isn't. it kind of gets to a whole nother. Another podcast ID on ai, but we talk about that another day. We gotta bring you back on, to talk about more about ai. We, we are all about diving into the AI on, and I'm sure there are very interesting d and I overlaps with ai and who knows, AI might be used in some respect. Now that we have college admissions. There might be a push for AI speaking of admissions, like what do you see as the future of, college admissions as it relates to race and race coaches, admissions? it's funny. I think in the short term, I don't think we'll see much of a difference. hot take. I don't think we'll see much of a difference immediately. One, I mean, just from yesterday I've seen at least. 20 different statements from 20 different institutions saying, oh, you know, even though Supreme Court says this, we still care about diversity and all these things. It is a weird example, but I think it's. Kind of similar, like when I stepped into Alabama, for instance, this was right after George Floyd. Mm-hmm. And it was very similar where every corporation had to have some type of affirmative statement saying they support black people or say they support diversity inclusion institutions were doing the same thing. And for a while, like six months maybe, I don't know, like things were relatively, if they think things were becoming more diverse than ever. Right. Like there were like a lot of initiatives being, being. brought up and, you know, implemented. usually when there's chaos like this, there is some type of opportunity for like folks to get innovative on how to like, kind of keep those things going. And I think these institutions will get a lot of internal pressure from their students of color, from faculty, whoever else to have some type of statement or into like institute measures to where. Their diverse students feel like they're welcomed onto these campuses. So I don't think anything in the short term will change in terms of admissions. Mm. But we have short memory as a country, and I think once this momentum has gone away, I can imagine in a couple of years things do become a little less, especially racially diverse, which I think has a broader disparate impact just overall. Right. going to back to my law school example. There are less, you know, law students that are black or brown when a lot of people in the criminal justice system are black or brown. That's kind of a disconnect there. saying with healthcare, be less doctors, probably less black do doctors, right? And we know the mortality rates there and like a lot of healthcare issues there. we can see it across a lot of different fields that things will become less racially diverse. I mean, I think that's the long-term view. I don't know if this in itself will be the end all, be all that a lot of people think it'll be, but I think. We will see a difference, but I just don't think we'll see it right away. Hmm. And I'm curious, being that you are a Morehouse man, what role do you see HBCUs playing in this new frontier? I think there will be more, quote unquote, of a talent pool to choose from. I think whether it's. Whether it's a lack of success in apply of applying to larger schools or more resource schools or just overall this idea of feeling more welcomed at HBCUs. I could see there being an increase in, in applicants or applications, which I think was very similar to what happened in 2020, post George Floyd. Kind of similar type of thing there, I believe. the issue we'll come down to is whether our HBCUs can support this. This incoming or just as this large influx of people, you know, if the funding's the same, then I think the issues will remain the same. Like I love my H B C, but funding was an issue. Mm-hmm. And it's, you know, we were one of the better funded ones. So like the, these are issues across the board at H B C. So I hope that folks that are really serious about this issue of affirmative action and wanting things to be more. Equitable, at least in the short term, are also doing things to advance HBCUs in some way or another, whether it's financially, whether it's, and supporting in some way or another. But I think H HBCUs will always have that kind of impact of being there for, black students. but I think it'll just be interesting to see if funding will ever catch up. catch up, which I think it has been a huge issue. That's fair. That's fair. And along kind of, I guess relatedly, but not, maybe not relatedly, I, the thought popped into my mind about just legacy admissions, because that is another form of affirmative action. But typically when we think affirmative action, kind of going back to the myths that discussing earlier, we think it's just this race conscious bias. could you just talk a little bit about what legacy affirmative action is and how it operates? Yeah, so different institutions have different policies on it, but at a high level, it's essentially if your parents went to a certain institution that you have some type of priority admissions in terms of getting in as well. That doesn't mean you're automatically getting in in most instances. I mean, I'm sure there's plenty of examples where if you know a parent has contributed significantly, then maybe there's ways to jump the line. That's just a guess. Yeah, but I think just. Thinking about that. Outside of that, I like as legacy works in a way of like, kind of just, it's like priority boarding on a flight. You know, you, you, you get priority boarding, you get to sit down a little quicker. you get your stuff processed a little quicker. things like that. So, yeah, that, that's ultimately how it works. Oh, what, what an app example, because I think that, The airline and way airlines treat passengers is such a good metaphor for like class and how it works in America. It's like I, I once was on a flight on a Delta flight and this, I think when they just recently released this fair type, but I didn't know this at the time, but they were calling the zones and they announced zone one. Zone. And I go up with zone one and, cause I don't have a zone on my, on my ticket and they're like, nah, you're basic. It's like, dang. So I had to wait. You say you're basic, they called you basic. Yeah. Like it was just a, not like it printed basic on the, oh, on the fair. So I had to wait for zone one, zone two, zone three. And only after zone three, which nobody was in, would they let us go on the plane. And then, you know, when you're walking on the plane last, everybody's got those stairs, everybody's got those. Those eyes free, but I got a great value and we're all going to the same place. Yeah. Yeah. I would say on the, on the flip side, somehow, I don't remember when I finessed my way into a first class ticket, I think I Oh, you get some type of guys. Yeah. Some, some type of upgrade. And it was kind of the other thing, like I, I felt rich for a second, so look at me walking through past everybody getting my, getting my free drinks and, you know, First class, the real comfy chairs and stuff. Yeah. That actually is a really interesting example. So Josh, man, I really appreciate you coming on for our special episode on Affirmative Action. appreciate you, brother. For those of you who haven't checked out the gratitude challenge, we just finished day 30, so go back, catch up, Until next time, peace.