Be subjected to discrimination under any program or activity receiving federal financial assistance. That is what happened to Abigail Fisher. It is not disputed. She was treated differently because of her race and color and national origin. Now, we are not going to be talking so much about title vi my when we talk about the constitution. The Supreme Court said it doesnt really mean what it says. We just think it means what the constitution means. Constitution has a little bit more wiggle room. Although knobloch or the constitution guarantees equal protection of the law, and the outlaws the whole purpose of it the 14th amendment was to outlaw racial standards. That seems pretty straightforward. There was an act of 1981 that been Racial Discrimination, including in regards to college tuition. It sounds pretty straightforward. Think of those things not mean what they say. There is an exception in this area. You would think, well, gee, it would be an exception. It would be an exception to the principle of Racial Discrimination that is pretty clearly there in the law. The federal branch have spoken to that. It must be pretty strong and undeniable. It must be Something Like, you know, it helps us identify someone who is about to set up a nuclear bomb in new york city or Something Like that. It is very compelling. Well, the argument is that if you use racial determination for College Admissions, it is likely that there will be somewhat more somewhat more of unrehearsed, interracial conversations are in especially among students. Under the africanamerican kids and a latino kids who get these preferences they will Say Something to the white kids and asian kids that have overwhelming compelling educational benefits for them. That is a argument that the university of texas is arguing. That is an exception of nondiscrimination that the Supreme Court has recognized. Okay . Okay. I think thats ridiculous. And, indeed, the reason the court buys this is because there are social sciences out there and scientists who say this is true. Now, increasingly, these educational benefits, which, you know, make only marginal improvements to education access, they are disputed. You know, it is increasingly disputed that their are any educational benefits. But i think it is also important for the court to bear in mind, and i think the courts jurisprudence is moving this way. Even if there are some educational benefits, they have to be weighed against the cost that are inherent in engaging in this discrimination. Something is compelling. And you have to consider the inherent liabilities and Racial Discrimination that involves as well. Well, what are some of the costs of Racial Discrimination . Well, i should know this by heart, but i do not. I post on comment sections on websites often. Here it is. The cost of Racial Discrimination in admissions. It is personally unfair. It passes over Better Qualified students. Disturbing legal and moral precedent and allowing Racial Discrimination. It creates resentment. It stigmatizes the socalled beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients. It fosters the victim mindset, removes the incentive for academic excellence, and encourages separatism. It compromises the Academic Mission of the university and lowers the Overall Academic quality of the student body. It creates pressure to discriminate graduates. It breeds hypocrisy and encourages this type of attitude among officials. Those there on a academic scale that is not fair, how much blood is needed to establish membership . I didnt even mention this book, mismatch. In addition to the chapter that is irrefutable on documentation for why this is a real problem, it also touches on some of these other problems that i have just listed. If you add all this up, okay . Me that it is a lot stronger than the educational benefits from these random interracial conversations that we might be having more of his racial preference in admissions. Well, let me wrap up with one happy note and one not so happy note. It seems to me that one reason why we ought to end this nonsense now, its is because of the changing face of america. All right . Forty or 50 years ago, there was predominantly a blackandwhite country. And you have a lot of people who had only recently been discriminated against. We have been living under a jim crow system. Now, we are talking about those born in 1994. It doesnt seem like very long ago. Thats 34 years after the 1964 Civil Rights Act. According to the latest census, one in four americans describe themselves as being something other than black. Africanamericans are not the largest Minority Group anymore. They have not been for a while. Latinos are a larger Minority Group. Neither one of them is the Fastest Growing racial Minority Group. The Fastest Growing one is asian american. White americans are growing only had a 5. 7 rate. Another rapidly growing group of people like our president. Who could check more than one box in the race and ethnicity section of their questionnaire. It seems to me that we cannot have a legal regime that sorts people according to their skin color and what country their ancestors came from. And treat some People Better and other people worse based on what boxley check. Okay . Now, frequently the people who are arguing in favor, and i think this issue all the time, let me tell you. Two minutes and today we are not talking about the educational benefits within a conversation. We are talking about slavery. We are talking about Racial Disparities. You know, even the academics dont really believe in these compelling interests from an original point of view. That is not really their focus. So why we have these Racial Disparities . You know . Isnt at all because of slavery . Well, last year the federal government cannot let it be known. But they came out with the most recent figures great 72. 5 of African Americans now are born out of wedlock. 72. 3 . American indians, 66. 2 . Latinos, 53. 3 . White people, still pretty high, 29. 1 . For asian people, it is 17. 2 . So in other words, seven out of 10, six out of 10, five out of 10 for blacks and American Indians and latinos because they are the socalled underrepresented in minority who get racial preferences. And a two out of 10 people are typically have racial problems. Not only in terms of education but in terms of crime and whatever social indicators that you want. Now, that is the real problem. Of course, that is not going to be fixed by racial preferences. Thank you. [applause] thank you, roger. Now we will hear from alan morrison, who is the Lerner Family associate dean for Public Interest and Public Service law at the George WashingtonUniversity School of law. He is responsible for creating pro bono opportunities for students, bringing a wide range of Public Interest programs to the law school, encouraging students to seek positions in the nonprofit and government sectors, and assisting students to find ways to fund Legal Education to make it possible for them to pursue careers outside of Traditional Law firms. Most of his career, Deena Morrison work for the Public Citizen litigation group, which she cofounded with ralph nader in 1972, and directed for over 25 years. His work included open government, opening up the legal profession, suing agencies that failed to apply comply with the law, protecting the rights of consumers, and protecting unrepresented class members in class action settlements. He has argued 20 cases in the Supreme Court, including victories in the Virginia State board of pharmacy, virginia citizens consumer council, making it subject to the first amendment. And striking out over 200 federal laws containing the legislative veto is a violation of separation of powers. He previously taught at harvard, stanford, hawaii and American University law School Spirit he is a member of the American Academy of fellow lawyers, and was the president from 1999 until 2000. He is a graduate of the Yell University and Harvard Law School, served his commission as officer in the u. S. Navy and was an assistant u. S. Attorney in new york. Please welcome dean alan morrison. [applause] thank you, roger. I also have the distinction of two things. One, i read and commented on the book, i dont want to get any medal of honor for that. Nobody has come after me out. You shouldve read the draft that i wrote. [laughter] second, i am one of the few who practices regularly before the Supreme Court that did not file for the fisher v. University of texas case. [laughter] lets remember that fisher is a concrete lawsuit and on about affirmative action. The question is university of texas, did it violate the equal protection clause in connection with the undergraduate Admissions Program, ended Abigail Fisher, which he injured by what the university of texas did. I would like to start by explaining a little bit more than you would get about the Admissions Program and what it is supposed to do and what it is not supposed to do and what it does and does not do. We have the top 10 of his guaranteeing anyone who graduates in the top 10 from their High School Class admission to the university of texas. He does not get you into your preferred academic program. If you want to be in business, and that is filled up, you are dealing to get into something, but not necessarily into business. It had some clear limits. First, it only applied to graduates of high schools in texas. So you cant get anybody out of state. Second, only applies if the School Brings individuals. It turns out that in texas and many other places, for academic reasons, schools do not rank individuals because they think its bad and its ultracompetitive. Those students cannot get in under the top 10 preference. Third, it only deals with brain and not brawn. He would not necessarily get any athlete or musician or any other people because of those scoring highest on their sats. The sats are interesting, but probably ought not to be the only criteria, or at least thats what the university of texas thanks for admitting students to the undergraduate program. It cannot work for national university. Because there is no way for the top 10 or 2 or 80 around the country, admitting them. It only works with a large single State University. Nor can it work for graduate schools. There simply arent enough schools even in a place like texas, to get into the university of texas graduate program in law or anything else. It works principally because in texas, and the legislature was perfectly aware of this, in texas there is highly segregated high schools based on residential patterns of racial segregation. Not required, but economically large unsocial. So the blacks had their high schools. The hispanics have their high schools. And there are largely white high schools, not completely, but very largely done that way. That is the way they were able to get some significant racial diversity by using the top 10 . The university of texas then decided to do something more than that. They concluded after a period of studies, that they did not have sufficient diversity within racial groups or they had insufficient numbers of racial groups and minorities in the schools. So they went to what they called the holistic approach of thats not my title, i cant be blamed for adopting it and they cant pick on me for that. There are two things. To access, that is a combination of your grade point average and your sat scores. There is another index, and that consists of a single number when you get that word. It is not involved in race at all. And then there is what is called the personal achievement index. There are six factors coming to a total of six points. Race is not a specific factor, although it is recognized to be included within one factor, factor called special circumstances. Those factors are combined in a single number. It is my understanding that you dont get a point for each of the factors. Things like leadership and athletic ability, music and other things like that, all of which go into these circumstances. You get a number. Equal number at the end. The numbers at the bottom go up this way and the intersection at the number here in a number there, and you get a box. Everyone in the box gets admitted or gets denied based upon the number of people that they need for admission to the undergraduate program. So there is no specific reference to race in the final determination. There is no quota. There is no goal, other than the general goal of increasing the number of hispanics and africanamericans. Some desire to increase the number of classes and programs as well, they want to talk about this. It turns out that between 60 and 80 , depending upon the year, are admitted in the top 10 and different numbers, obviously, have a holistic approach for the other years. In addition, 90 of the students who actually attend the university, and one of the difficulties with the statistics is between those who get admitted and those who actually attend. So you have to be a little careful with your numbers. 90 of the people who attend are from the state of texas, which means its very difficult to get people in from out of state if you use the 10 figure. Now, there is no question that the goal is to bring in more minorities and diverse minorities. The university of texas believes that it does this. But it is possible to determine exactly who is preferred and by how much, because race is admittedly part of it, but only one part. But even if there are varying large numbers and has a very large impact on who gets admitted, africanamericans and hispanics are quite small, and this is one of the strange things about this case. The defendants say, well, we go from 3 africanamerican in the top 10 to four and one quarter with the holistic approach. And they say if there is a preference, its very slight. A very slight preference. But others say, wait a second, slight preference, then it can be very important. So both sides are arguing the same thing. But its not very significant in terms of the numbers. One says thats proven so important, the other one says that its not doing very much harm. It is kind of an irony. I dont know what the court is going to do about it if it actually figures out that thats what the two sides are saying. By the way, i should make this point rather than making it later. The case by the two parties is being argued on a very narrow grounds. That is both of them are accepting and saying you comply or you dont comply. Particularly on the plaintiff side they are arguing broadly for it. So it will be quite interesting to see what the court does with that. My own view is that the plaintiff has the burden of showing that the racial factor had a significant influence in effect on the program in general and even though there are no goals or specifics about it, the plaintiff has the burden of showing a significant impact. More importantly, i would like to make a couple of additional points. There is no question that if ms. Fisher, had gone a score of six, her academic achievement index would not have been high enough to put her in a box that would have got her admitted. The argument that the state makes is that you were not harmed because you would not have gotten admitted under our system. The difficulty is that you cant tell how much help anyone else got as a result of the system, because there is no actual scoring based upon race. If they do that, they might run afoul of the michigan problem. Assigning numbers to it, which creates another type of problem. It is possible that ms. Fisher might have been admitted to a Summer Program under which texas and that the number of people who are not admitted to regular programs. Its not clear to me whether she actually tried to get into that program. In any event, she was not actually admitted it. One of the arguments that she made is it is impossible to reconstruct what wouldve happened. And that maybe this is a lawsuit which could prevent the university of texas from Going Forward with this program in the future. The problem from ms. Fishers perspective is she has already completed the university. This is not a class action. She has not sought an injunction against future use of the program because she would have no standing. The only thing she is seeking at this time is monetary damages. The damages she has claimed as far as i am aware that she paid an application fee of 100 or something of that range. And she wants that feedback. We are not clear she is entitled to it or if the university of texas and the 11th amendment, which i dont like very much, but its out there, and it prevents people from getting money back from states them with the state has clearly waived its right to engage in the activity. Not at all clear that they would meet that as