out of the blue from a former law school
classmate of mine asking me if I’d be
interested in writing a supreme court
brief in amicus brief on behalf of
college basketball coaches defending
Fuhrman of action you don’t get that
email every single day needless to say
so a little background I really wasn’t
that surprised to get the email from him
the case in question is called Fisher vs
Texas three years earlier he had as a
constitutional law professor he had
written on behalf of college basketball
coaches the first time that the court
heard the case had gone up they’d sent
it back down to the Fifth Circuit for
more fact-finding and now three years
later was back up at the time I said he
was a constitutional law professor three
years later he had been now named Dean
of his law school and as such he was
precluded from taking the case just a
couple one note here on definitions so
referred of action we’re going to say
for the sake of this talk is the program
by which a school or other business and
so forth tries to meet its diversity
goals currently universities are allowed
to use a front of action as a plus
factor in other words a plus factor
between two applications that are
relatively close just a little bit of
background there so why would I be
interested well this is me a thinner
younger more athletic less gray hair
version of me this is the summer of
nineteen eighty-eight and I apologize
for the resolution here this is screen
capture of a VCR that has been converted
to a CD
the tape is 28 years old but sit in my
mom’s basement for most of that time so
I’m 20 closest to the camera and this is
taking place edge on Georgetown’s campus
actually summer in 1888 I’m in
Washington DC working and playing in
something called the Kenner leak which
still exists very competitive college
league and attracts guys from up and
down the East Coast maybe as far south
as North Carolina all the way up to
perhaps Philadelphia who come in four
games on Friday Saturday Sunday so I’m
closest you can see two teammates one of
them is Sam Jefferson who played at
Georgetown in this era he’s got his hand
up he’s on the low block on the other
side he I found to be a very good player
he was going to his junior year and I
thought he’s going to be Georgetown
starting center unfortunately for Sam
Georgetown had recruited alonzo mourning
and Dikembe Mutombo both guys all time
great they’re going to show up in campus
six weeks after this this games being
played both guys are all time great
Georgetown guys NBA all-stars and
ultimately Hall of Famers so Sam’s
career is not going to go the way hope
right now at the top of the screen you
could see Dennis Scott who is a player
at this point in Georgia Tech he just
finished his freshman the area’s about
to shoot yeah pretty good freshman year
but he’s about to make the leap within
two years he’s going to be the ACC
Player of the Year he’s a number for
draft pick in the NBA Draft in 1990
after leading his team to a final four
but what you also see is this is the
world if you want to play at a high
level this is the world you need to play
these guys are very athletic very tall
very competitive and very black it is a
world where you need to go find if you
want to play against the best players
and so that’s what I did and that
important I don’t make too much of it is
what it is but it’s also informed how I
think about affirmative action and how I
think about taking on the case which I
did so as I mentioned the college
basketball coaches were our clients
there were three major major
organizations the men’s organization the
women’s organization and the minority
coaches organization which was almost
10,000 individual coaches represented
there but then almost two hundred and
eighty individual coaches signed the
brief themselves
putting their own name on the on the
line and in the court so John Thompson
for those who remember Georgetown
basilan early 80s mid 80s not surprising
he’s a signatory but he was coke case
Washington who’s been instrumental and
building the women’s game at Penn State
she was on the brief Geno Auriemma Jim
Boeheim both Hall of Famers do you know
obviously UConn and Jamie Dixon in the
background they’re also on the brief and
this is mike sous-chefs key perhaps one
of the most surprising if you know
anything Mike chefs keys described as by
John Weinstein as a rock read Republican
he grew up in a Catholic family in
Chicago Military Academy grad he’s on
the brief as well why why are all these
coaches caring about affirmative action
not for themselves and not for their
players their players are actually not
affected at all their players if they’re
good enough and I’m going to get offered
a scholarship and they can hit certain
grades and scores test scores they are
going to be admitted period but what
they don’t want is a the only African
Americans on campus to be the kids on
their basketball team and that’s what we
how do we know that because it happened
earlier in California in 1996
proposition 209 past if you took a few
years be implemented and to be fully in
place but when it did the UCLA class a
freshman class that was admitted
subsequent about 5,000 kids only 96
african-americans and many of them were
recruited athletes so we wrote the brief
and filed at November and then in
December went down to hear the oral
argument this is actually right
afterwards you can see the press scrum
around Abby Fisher who was the plaintiff
in the case and we waited and waited and
waited Justice Scalia died in February
and we still waited and finally in june
the court by a 4-3 margin one vote
Anthony Kennedy we’ll talk about a
second ruled in favor of Texas
affirmative action saved go forward and
then november eight happened so
obviously we’ve just gone through a very
divisive campaign and that’s one of the
most disappointing parts about it
president elect Trump the words don’t we
off the tongue while yet for me
president elect Trump ran a campaign of
us against Mexicans us against met
Muslims us against the other and and
certainly no indication by his the
Supreme Court pics that he foretold in
the July velicity said many of those
people will be arguably more
conservative than Scalia himself which
is a seat that’s open right now we know
that that seats going to go next year
most likely to a very conservative core
member the court so where does that say
the court hang in the balance it’s five
to four as I said Justice Kennedy who
interestingly enough the last time the
court heard affirmative action in 2003
he actually dissented so he actually
changed his mind and he’s been buried
back and forth on affirmative action he
wrote the opinion this time in the Texas
case in favor of it but he’s been back
and forth one other important thing you
need to know about the 2003 the last
time the court heard the case at that
moment justice O’Connor wrote the blue a
pinion in which he said at the time is
in 25 years are we still going to need
or why we need affirmative action will
it be brought to an end and in fact the
court has picked up on this already at
the oral argument in December Chief
Justice Roberts asked the University of
Texas lawyer he said well are we going
to meet our deadline will we meet this
25-year deadline set in 2000 2003
meaning which were halfway through
essentially so I mentioned Justice
Kennedy who’s been on both sides of the
issue Justice Ginsburg who was a staunch
provo is 83 years old Justice Breyer is
also a staunch pro-growth 75 years old
those are the facts that you know sort
of on the ground as you look forward in
fairness affirmative action is a program
that dates back to the Kennedy
administration and that’s something I
think we have to keep in mind if you’re
thinking about defending if you have the
ID pack it is a program that’s been
around for a long time and we still talk
in the same terms african-americans
Latinos and so forth same categories so
maybe one of the things we have to think
about if we’re going to defend
affirmative action going forward is what
other categories should be considering
class and socioeconomic
classes if you will as part of
affirmative action any other questions
are we measuring diversity correctly in
other words are we saying the right
things as far as finding those people
there was a study that the question also
is really do we do we know how to judge
diversity we say all the time diversity
makes our programs better makes our
classes better so forth how do we know
that well there’s been nascent studies
on this for instance there was a study
of business school students that I saw
what was interesting is when they went
down inside the numbers they said well
self-confidence you have a diverse group
and you go from low self-confidence to
high self confidence that group way
outperforms any other group non-diverse
etc but if you have a diverse group with
empathy high empathy low empathy it’s
almost no difference you would in fact
it might tail down depending on the
margin of error so it’s that we need to
know more about diversity and how it
works we all see that’s at the micro
level at the macro level we also need to
understand it so last year McKinsey
helped us a little bit they published a
study early last year worldwide multiple
companies multiple countries and they
took each individual country separately
and they graded each company on
diversity scale within quartiles so
Brazil’s banks were measured against
Brazil’s banks not against Canadian
banks or European banks of the likes and
so they went back and said well how does
that affect financial performance and so
what they found is if you’re in the top
quartile in gender diversity versus your
peers you are fifteen percent more
likely to outperform them on average 15
if you are ethnically diverse you’re
thirty-five percent more likely to
outperform now a couple caveats those
numbers are sort of they don’t add up in
other words if your jet if you’re
definitely diverse you’re probably also
gender diverse so it’s not a you don’t
stack one on top of the other the other
thing is important is correlation is not
causation which McKenzie says in which
we agree but the numbers of the numbers
so if you were arguing against diversity
against affirmative action you have to
explain these numbers you the Mackenzies
methodology is wrong possible probably
not right or there has to be some other
explanation for why diversity is
generating better financial results but
if you’re on the other side if you’re
defending diversity and you have these
numbers in the absence of anything else
better financial performance the diverse
company is the one that’s trying to make America great again thank