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A discussion with Brenda Shum of the Lawyers’ Committee for Civil Rights Under Law and Nicole Ochi of Advancing Justice L.A., hosted by Khalilah Harris

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DR. KHALILAH HARRIS: I’m Dr. Khalilah Harris for The Real News.

Today we’re discussing Students for Fair Admissions versus Harvard a case that could have major implications for race conscious that missions in higher education. I’m here today with Brenda Shum, who’s the director of the Educational Opportunity Project at the Lawyers Committee for Civil Rights Under Law. I’m also joined by Nicole Gon Ochi, who’s a supervisor attorney at Advancing Justice LA.

So Brenda, will you talk about why the Lawyers Committee decided to file a friend of the court brief for this case?

BRENDA SHUM: The Lawyers Committee is committed to supporting diverse and integrated learning environments both at the K-12 level but also in our systems of higher education. And as a result, we are extremely invested in preserving the constitutional right of colleges and universities to use race in a limited way in their college admission process. So back in 2014, when the Students for Fair Admissions filed this lawsuit against Harvard, they filed a similar lawsuit against the University of North Carolina. The Lawyers Committee for Civil Rights represents a racially diverse group of underrepresented minorities students and applicants at both institutions. We moved to intervene in both of these cases and to really be awarded party status.

The judge denied our motion to intervene in the Harvard case and granted it in the UNC case. So we actually were granted what is known as “amicus plus” status in the Harvard litigation, which really meant that we had the right to participate directly in that lawsuit in a more limited way than the actual parties to the case.

DR. KHALILAH HARRIS: Nicole, will you talk a little bit about Triple AJ’s involvement in this case and what you’re hoping to see advance as this moves through the courts?

NICOLE GON OCHI: Sure. So my organization, Asian Americans Advancing Justice, we have long been proponents of racial diversity in higher education and we have long defended the use of race in a limited fashion in admissions decisions. And my particular office, we are a California based office, and so we have a lot of experience with this because in the 1990s, California passed Prop 209, which eliminated the consideration of race in public employment contract and education. And so, we were very involved back then both on an advocacy level and on a litigation level to fight against that proposition. Ultimately, of course, we did not prevail in the litigation that challenged it as unconstitutional, but we were able to secure a victory against UC Berkeley.

That created sort of the basis for the holistic admissions policy that is used across the UCs today. And since then, we have been involved in every major Supreme Court case in terms of filing an amicus brief. And a lot of times, our role in this issue, and never more so than in this Harvard case, has been to push back against the narrative that Asian Americans are harmed by the consideration of race in the admissions process and to really show the diverse stories within our community and how affirmative action benefits everyone, including Asian Americans.

DR. KHALILAH HARRIS: Great, thank you. We’ve seen from the Bakke case many decades ago, through Fisher, that the Supreme Court has held that race can be used as one of the factors in admissions, right, that race conscious admissions, as you said, as a holistic factor can be utilized. Will you talk a little bit about- and Brenda, we’ll start with you, talk a little bit about what you think the plaintiffs in this case were hoping to achieve with their filing in terms of shifting how the Supreme Court sees race conscious admissions?

BRENDA SHUM: Sure. The plaintiffs in this case are actually making two distinct legal arguments. They are first alleging that Harvard is engaged in intentional discrimination against Asian American applicants in their admissions process. They’re also arguing that the affirmative action policy that Harvard uses in order to evaluate its applicants is not sufficiently narrowly tailored and is therefore unconstitutional. Prior to trial in its papers, in its court filings, SFFA placed a lot of emphasis on the second claim, really making it clear that this litigation is intended to target the constitutional use of race in admissions and affirmative action in higher education more generally.

During opening arguments, SFFA really attempted to downplay that position, implied that it was not placing affirmative action on trial in this particular case. But I think that throughout the three week trial, it became increasingly clear that, consistent with all of the other cases that have been brought by Ed Blume and his organization SFFA, that the true ultimate goal is to attack the constitutionality of race conscious admissions, and thereby really compromising the ability of our colleges and universities to promote dynamic diversity and racial and ethnic diversity on their college campuses.

DR. KHALILAH HARRIS: And Nicole, you talked about what some call the model minority myth, or at least you implied it in the case of Asian Americans not being negatively impacted by other minorities getting access to higher education. Will you talk about what the students who you filed the friend of the court brief on behalf of are hoping to amplify about their experiences as applicants and students and alum of Harvard?

NICOLE GON OCHI: Sure. So I think the model minority myth, just to break it down, is this conception that Asian Americans are successful academically and economically, that they have overcome systemic racism and therefore systemic racism doesn’t really exist. And other minorities, Black, Brown and Indigenous minorities, the reason why they have not achieved as Asian Americans have achieved is you know because of some inherent deficit, which is completely untrue and is very, very harmful for all communities of color. So that’s the model minority myth.

And I think all of the Asians American students that we represent- and we do represent a diverse set of students, so not just Asian Americans- but just talking about Asian American students right now, I think they all are very cognizant of this reality and really want to reject it. And in particular the, two students that testified at trial who are Asian Americans, Sally Chen and Thang Diep- except I might be pronouncing his name wrong- they wanted to emphasize this in a couple of ways. So one thing about the model minority myth is that it sort of takes the East Asian American experience and universalized is it for all ethnicities that fall within the Asian American subgroup or Asian American racial category.

And so, that really sort of erases. The experiences of many Southeast Asians and other Asian American groups that have very different immigration histories and experiences with access to education. And so, Thang was talking a lot about that a lot about his Vietnamese identity within the larger Asian American sort of racial identity. And Sally Chen, who is the daughter of immigrants from China and who grew up low income in San Francisco, she also felt very strongly about sort of resisting this narrative because she felt like her family, who had always struggled economically, did not fit within this sort of stereotype, and growing up, that had been a constant source of tension and conflict for her.

And so, I think both of them want to make clear through this lawsuit that this model minority myth is damaging to all the other news Communities of Color, that it is denigrating and is also very damaging to Asian Americans themselves. Because when they don’t live up to this myth, or if their experiences, I guess I should say, don’t mirror this myth, which is a myth, then it creates a lot of struggle.

DR. KHALILAH HARRIS: So from a legal standpoint, the case closed in the federal district court in Boston about a week ago. From a legal standpoint, what are you hoping for the judge to find at this time? And if the case needs to be advanced on appeal, how do you perceive the ability of the plaintiffs to be able to withstand any further scrutiny that may come, possibly at the Supreme Court level?

BRENDA SHUM: So I could probably address that question first, and then Nicole, you can certainly add your response after that. I think that it’s important to recognize that this litigation and the UNC case are part of a broader strategy and campaign to roll back civil rights protections for communities of color, and specifically to take down the constitutionality of race conscious admissions in higher education. The closing arguments in this case have been scheduled for February 13. And in between now and that time, the parties will be filing their post-trial briefs. We are very confident that this judge will find against the plaintiffs in favor of Harvard. I think that as a matter of law and on the basis of the record that was created during the three week trial, it is very clear that there is very little evidence direct evidence of intentional discrimination.

But more importantly, I think that there was ample evidence put into the record that the Harvard admission process is sufficiently narrowly tailored as contemplated by the U.S. Supreme Court in all of the cases that have looked at the requirements for a narrowly tailored, race-conscious admissions policy. So one of the things that was apparent during the trial is that the plaintiffs are relying almost exclusively on statistical evidence in order to demonstrate that any kind of disparity or difference in the admit rates for the different racial and ethnic subgroups is indicative of intentional discrimination or an unconstitutional affirmative action policy. But I think that there were a number of very problematic issues raised with the analysis that was performed by the plaintiffs’ expert in this case.

DR. KHALILAH HARRIS: And in the amicus brief, you talked about the fact that there could be a wide range of preferential factors that anyone could say would result in discrimination. The plaintiffs in this case in some ways tried to steer clear of the legacy clauses that provide for children of Harvard alumni to be able to attend and the fact that they have a very large percentage of the population of admitted students. What’s your sense of how that might play out if they move to appeal if you’re successful here at the federal district court?

NICOLE GON OCHI: So this is Nicole, and I guess a couple of things about that. I think you’re absolutely right that the plaintiffs did not focus on legacy admissions. The remedy that they have been seeing this whole time is the elimination of race as a consideration in the admissions process. And in our second amicus brief, we did point out that any sort of negative effect on Asian Americans in the admissions process is most likely caused by the legacy and athlete afferences, et cetera. And we know that because if you look at admit rates of whites and Asian Americans without legacies, et cetera, included, and they’re very similar. We look at the admit rates of legacy Asian Americans and whites, they’re very similar. But if you add legacies into the pool and look at total admits, then statistically significant disparity.

And so, in terms of what this means though, it is really, in some ways, unfortunate, I guess, because this kind of disparate impact is a real thing. I think as a society, we should care about disparate impact and we should want to address it in the same way as we would. Intentional discrimination. However, that is not how the law works. And private litigants like SFFA in this case are not able to bring that kind of claim. And so, under an intentional discrimination claim, which is the only claim that they are able to bring, this sort of disparate impact evidence is not enough to rise to the level of something that’s actionable. So I don’t see it making a difference.

DR. KHALILAH HARRIS: Well, Nicole and Brenda, I want to thank you for your time. Do either of you have any final points that you hope for people to pay attention to? Brenda, as you said, that this is a concerted effort and campaign to eliminate affirmative action. Any other final point that either if you would like to share with our audience? Brenda?

BRENDA SHUM: Sure. Just very briefly, I think that it was really essential for our student clients to have the opportunity to participate in a meaningful and direct way in this litigation. They were the only students who had the opportunity to testify. Neither the SFFA nor Harvard chose to put forward any student testimony, so they provided the only testimony for this judge and for this court on the ongoing, direct way, and concrete way, that race continues to limit and influence their opportunities and life experience and the extent to which race sxtill matters today and how their race also added value to their contribution to Harvard’s classrooms and to Harvard campus life.

DR. KHALILAH HARRIS: Thank you Brenda for joining us. Nicole?

NICOLE GON OCHI: I guess I would just zoom sort of way out, even beyond this case, and say that many people from low income communities of color might not necessarily see why this case is important. And to be honest, I don’t think for myself or my organization that we really have a big stake in a few spots at Harvard. But I think really why this case is important is because it is a referendum on race in our country. It is a referendum on colorblindness and whether that understanding of the world is valid or it’s not. And I think, particularly for Asian Americans, it is a referendum on our own racial identity and whether we choose to align ourselves with whiteness or with other Communities of Color, and to understand that we are part of the scene system of structural racism that affects all of us and that we need to stand together. So that’s why I would encourage people to care about this case.

DR. KHALILAH HARRIS: Thanks so much, Nicole, for joining us. I’m Dr. Khalilah Harris for The Real News. Thank you for joining us.

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Khalilah M. Harris is a host and executive producer at the Real News Network focused on the Baltimore Bureau, education reporting, and social commentary. Khalilah brings a unique perspective to curating content from an extensive career working to expand access to opportunity through an equity lens in community organizing, education, education policy, youth advocacy, and building an inclusive workforce. In addition to her background as an attorney and researcher, Khalilah brings experiences from the grassroots as a founder of a Baltimore City school focused on social justice, to co-founding a local community collaborative called the Coalition of Black Leaders in Education. She organizes nationally with the EduColor movement and served as the first Deputy Director of the White House Initiative on Educational Excellence for African-Americans. A proud alum of Morgan State University, Khalilah also obtained her doctorate in Educational Leadership from the University of Pennsylvania, and her law degree from the University of Maryland School of Law.