there was alcoholism. i think if he was alive today he might be medicated to prevent some of these things and possibly his suicide which raises a very thorny question. would he have written as brilliantly as he did if he was not suffering so much? that's a hard, hard question that too many artists have to face up to. >> paul, long time reporter for the washington post, what other topics have you written about as an author of books? >> i wrote about robert mack that mar, a name in this city, architect of vietnam, that book published in 1996 called "the living and the dead," and i wrote a book called "sons of mississippi," the book previous to this, a study of the civil rights south and integration of

james meredith at the university of ol miss. i like to pick out subjects that i feel have a lot on like to pick out these subjects that i feel have a lot of resonance to our cultural history, biography. >> paul hendrickson's most recent work, hemingway's bonet is the name of the book. thank you for joining us on booktv. >> thank you for having me. >> sander and stuart taylor talk about affirmative action, oral arguments in fisher versus university of texas. they agreed with the initial goals of affirmative action. that now believe it hurts the minorities. this is about an hour and a half. >> thank you very much.

thank you for roger and cato for sponsoring this event, it is great to have such a great kickoff to the book which is being officially published today. i am going to start and talk a little bit about the central idea itself and some of what we found in the book. i will try to relate this more to what is happening tomorrow. i am particularly glad to be doing this at cato because it stood for a lot of values that are in the book. i first became aware of cato in the 1980s one of was mostly doing community organizing the in the evenings thinking about policy issues and whether i should leave graduate school and become a policy tight person. a big issue was social security reform and trying to analyze

what was happening and came up with this idea that people were receiving more benefits than they paid in. the interesting thing was subsidies for largest of the middle-class. i thought this was a great revelation and should be part of the policy debate. nobody seemed to be talking about this. then i found a book published by cato which had figured it all out and was trying without much success to get those items into the policy debate. kato has always meant to the willingness to look at facts and figure out what is actually going on. you have to be sort of interested in how politics is actually going to work but first thing you want to do is figure out the dynamics and take an empirical approach. let's look at the analogy to our

work on affirmative-action in the early 80s. imagine how easy it would have been to fix social security's problems. 30 years later it is a much harder problem to deal with and affirmative-action is analogous because today we have the greatest degree of racial peace in many senses we have ever had. this is a good time to deal with this issue that has been lingering for a while. we may make it harder to deal with later on but i hope progress is here. as roger mentioned i first got interested in the question of "mismatch" when i was innocently working on an administrative issue through law school and was very interested in how

admissions worked and how students did after they graduated and it didn't take long to sort of look at what was happening, to sense something like "mismatch" might be important. we were admitting large preferences, and 90% chance of graduating only a 50% chance of passing the bar. welcome. that meant only 45% of students we were admitting actually went on to smoothly go through law school and get their law degrees. wasn't hard to look at other schools in los angeles where students wouldn't have gotten in without references to see that those students had better outcomes. us started looking into this and look for a relevant database to test this and in 2004-2005 developed the paper that first

discusses the issue in law school context and found this is quite a large problem, nationally the great bulk of minority students especially african-american students were receiving large preferences on a scale of a couple hundred spt points. traits were generally poor for this group. only a third of black starting law school graduating and passing the bar and this was affecting the lives of a substantially large majority of people who were supposedly being helped by preferences. what really struck me when the article came out was the institutional response. the collective unwillingness of a great many, the instinctive reaction of a lot of

institutions to restrict data that was already very hard to get. the fact that there was no law school in the country where someone who received a preference could find out what their prospects were. i became interested in trying to look at this more broadly. the foundation contacted me in 2007 and they were interested in trying to get good empirically based research done and together we commissioned. stated in various institutions to find social scientists who wanted to work on these problems. overtime partly through that effort and other independent efforts to lot of research has been done. the vast majority of the period, publishing excellent journals so we known no there's a problem. although blacks, more likely

than whites to want to major in science and engineering when they go to college they're less likely to get what we call s.t.e.m. degrees if they receive a large preference. a study from the university of virginia found if you take two blacks or students of any color who one receives a large preference and one doesn't, the one that receives preference has a larger chance of dropping out. "mismatch" also affects academically inclined students who receive large preference who like to become university professors or academics. but predominantly receive low academic grades and decide economics is not for them. the biggest "mismatch" experiment was in california where voters passed a proposition with a large experiment of what happened when

racial preferences are banned from university systems. it is extremely clear for anyone who played cares to look. within a half-dozen years the number of blacks in the university system has gone up by 30%. the number of blacks receiving a bachelor degrees went up by 70%. the number of degrees for hispanics, gpas of gone up. virtually every outcome has been a dramatic improvement. the column leading critics that the 2 as a problem was there were fewer african-americans at berkeley and ucla. when racial preferences were admitted -- this was not actually about outcome. those students who had been admitted to berkeley and ucla were going to school and had higher success rates and because berkeley and ucla afforded so

many minority students with a national reputation to do so the race neutrality increased the integration across campuses. one of the things we talk about in the book is the cascade effect. when elite universities admit students, a four paid graphic in the book illustrates this. have the first pick and the students there would like to admit through preference. so they admit not only the very top african-american, hispanic, they also admit those in second, third and fourth tiers of academic achievement. that means when the second tier schools use preferences they start far down the ladder. ironically that means the largest preferences are not used by the most elite schools but schools that are in the third or fourth tier of all colleges.

this is important for couple reasons. when is it helps explain the knee-jerk defense of preferences that has often led by leaders, universities. they look at their university and the preferences are significantly more moderate in those contexts. the worst effects of "mismatch" are the second, third and lower tears. the second effect is it means even though only 25% of all colleges in america used are highly selective institutions they absorb so much of the talented pool of minority students that even schools say second state universities with special requirements to get in are going to have a large disparity which is significantly aggravated by these preferences.

that means "mismatch" affects higher education. >> another two or three minutes. >> one thing we talk about is another sign of racial preference, prominent in the discussion which is the diversity interest of schools. one of the things research has shown that we talk about in the book is how much the diversity affects, moderated by the academic distance, when you admit students with large preferences they are less likely to socially interact with peers of other raises. this is very well documented by research. there is also self doubt affects of low grades. one study found students who believe they were admitted on

preference are more vulnerable to serious arms threat. diversity research when looked at carefully fits nicely into c-span2 -- "mismatch" findings, talking about these various effects, then we go into problems of institutional behavior and that is a large part of the problem. wanting to demonstrate these effects but it is another to get institutions of higher education to deal with that. when you only look of the lineup to see how uniform is the solidarity of higher education behind the sustained preference regime. it is a nonstarter, very difficult -- institutions that want to follow different paths like george mason loss will pull find themselves at the mercy of

those who want to enforce very rigid racial preference standards across all colleges. one of the things we find is even the supreme court has been complicitous in this in the past, issuing standards for implementing preferences but justice o'connor is applied them in such a loose way that it has been well documented by some research we have done that schools use larger preferences, more mechanically after the router decision in 2003. so we tried to write a book that would be interesting, important for the new vacation but also accessible to a broader readership. we tried to write a book that was dispassionate about policy but passionate about the scale of the problem. i will let you judge whether we

succeeded. thank you. >> thank you, professor sander. we are now going to hear from his co-author, stuart taylor, author of the book "mismatch". those in the audience can purchase it just outside. otherwise just go to your local bookstore or to any of the online services to get a copy. it is published by basic books. stuart taylor is an author and free-lance journalist focusing on legal and policy issues, he also writes for national journal, a contributing editor, he is a stanford law school lecturer and occasionally a practicing lawyer. he is a nonresident at brookings institution. his current focus is on

constitutional law, media law and the supreme court. he has been a senior writer for american lawyer media. he is as distinguished lecturer in writing that concern university, reporter in supreme court correspondent for the new york times and an attorney with wilbur cut their and graduate of princeton university and harvard law school please welcome stuart taylor. [applause] >> thank you very much. please accept my heartfelt thanks for giving us this opportunity to talk about a new book. i am going to focus more on the case in the supreme court and i will talk a little bit about the relevance of our book's evidence about "mismatch" etc. to the case.

this case, we didn't know about this case when we started this book. and the issues that we focus on, we think the solutions to the issues the book focuses are pretty similar to the solutions to the overall racial preference problem, basically reducing the size of preferences and making them more transparent. abigail fisher is a student who brought this suit. was not admitted to the university of texas. they take roughly 10% -- they take roughly 90% of their students through what is called the top 10% under a law that says you are in the top-10% of your high school class in texas you are automatically admitted to the university of texas at austin. she was not in the top-10%. you was close but she was at a good school with pretty good grades, pretty good average. she thought she would have gotten in but for racial

preference, she knew people who were less qualified than she was who got in, test scores lower than hers etc.. so she sued saying she should have been admitted. and she went to state university and did fine and graduated but hirsute those on. lost in the lower courts in texas which are obliged to apply strictly supreme court precedent. the law in texas, federal district court and court of appeals both held the university of texas plan which was modeled on university of michigan law school plan that had been upheld in 2003, followed the university of michigan plan closely enough that the court was obliged to uphold it. even one justice who said he hated racial preferences and would love to strike in down said that he had no choice but

to uphold this one as a matter of supreme court precedents. seven early of the 16 justices on that circuit disagreed and thought they could strike down under the greater president but the case finds its way to the supreme court and is likely to become the most important case in history on racial preferences. not so much because there's anything that extraordinary about this case but the composition of the court has changed since the 2003 cases which gave a fairly green light to racial preference, large racial preferences as long as they are camouflaged beneath a complicated whole list -- that word is like we sprinkle holy water over our preferences by making them holistic. here is how it worked in the university of texas. they have an academic index for people applying outside the top 10%.

they have a personal achievement index. the personal achievement index has many components and one of them as race. it is the personal achievement in texas to be born black or hispanic. it is not such a good achievement to be born hispanic -- to be born asian or white. literally that is what they call it. personal achievement. they also emphasize we have many personal achievements we consider. race is only one little thing. we often don't take into account. only a little finger on the scale. that is the pitch the university of texas makes. the numbers tell a different story. the best way to tell whether there's racial preference in operation, whatever they call it, is to compare the entering academic credentials of different racial groups after they arrive on campus and when you do that comparison the most recent numbers we have seen in 2009 looking at those university of texas freshman who are accepted outside the top 10%,

the gaps were 467 s 80 points between the mean asian score on the s.a.t. and amine black score. only 390 points between the main white score and mean black score on the as 80. that is on a 2400 scale. those are enormous racial gaps. the idea that this is the tiebreaker or a little finger on a scale does not withstand analysis and this is pretty true almost all big universities in the country. here as elsewhere racial gaps are very large. from the mismatch standpoint that means students at the lower end of those gaps are very likely to struggle academically and have the problems wreck described. these problems were not the focus of this litigation. amy fisher's complaint was she

was discriminated against for being white. it is not talking about how black students third. that is the traditional approach. the university of texas claimed we are just doing it the way the university of michigan law school did it so we are okay. there are a number of distinctions between the cases that we think will help more skeptical court strike down these preferences. they would not have to overrule the greeter case to do so because the greater case, justice o'connor articulated some principles that were supposed to limit the size and duration of racial preferences to avoid abuses but she didn't really enforce them but they remain on the books. supposed to pursue race neutral alternatives before resorting to raise. the university of texas did. they had this 10% plan. they get a lot of racial diversity. did they really need to use

individual racial preferences on top of it? that is one argument in her favor. another argument, the court has said no racial balancing meaning you cannot try to mirror in your state university's composition of the racial proportion of the statewide population. that is unconstitutional. the court has said. in texas, although they haven't gotten very close to racial proportion, that is an explicit goal of their plan. we want to come closer to racial proportionality with people statewide. another principle was this was not supposed to go on forever. we think it should end within 25 years. nine of those 25 years are gone so universities are supposed to be preparing to phase out racial preferences in the next 16 years. no university anywhere that we know of intends to do anything except perpetuate racial preference as far as the eye can see for decades, maybe 50, maybe

a hundred years. one way the university of texas manifests that intention is they want a critical mass of every racial group and every class. they're trying to get there through a system of preferencess that systematically channels people of different racial groups in different classes. when blacks are dropping out of science because they can't compete with whites, that isn't producing critical mass so this will go on for a very long time. as rick mentioned, since brooder, his research and other research has demonstrated that universities, particularly law schools and the university of michigan undergraduates full and their plan was struck down by the supreme court in 2003 because they had an explicit racial point system. if you are black or hispanic or asian you get 20 points. if you have an average instead but the average you get 20

points. one full grade point. that was a little too explicit for justice o'connor's case. she struck that down but under the suppose a ballistic system they substituted for it, they have used larger racial preferences at the university of michigan than they had before they were struck down. this doesn't seem to be consistent with the spirit of the supreme court decision and the same has happened at a lot of other places. evidence suggests large racial preferences, 204 as the key points, gaps in gpa between mean scores of black and white students and most elected schools. another principle stated in router was it is unconstitutional to use racial preferences to the extent that unduly are members of any racial group. that is a quote. we argue, and we think the

evidence shows that preferences in texas unduly harm members of every racial group. they unduly harm the asians primarily first and foremost to are excluded and whites or excluded like abby fisher, because of their race who might otherwise have been admitted. we think they do worse harm to black and hispanic students who are misled into thinking they are well qualified to have strong academic records at the university of texas and to get there and find out they are not outstanding academic records and lucky to graduate and likely to be at the bottom of their class. i am not talking about black and hispanic students per se. the stock -- top student in the class might be black or hispanic but students of any race, this is usually black or hispanic preference who are admitted based on large preferences are not likely to do well. this is concealed on them. what does it have to do with our

research? the remedy the court shall adopt, we think, to cure the problem at the fisher complain of is not to ban racial preferences. roger will make a strong case for doing that. our favorite remedy is total transparency. full disclosure of how the system works, how large the racial gaps are and how people fair who admitted with large racial groups. it is the consumer protection measure so that minority students will know what they're getting into and also you can't make intelligent public policy about matters that are kept secret as to how they work. the second would be no racial preferences can be larger than whatever socio-economic preference the same school as. for example is now routine that children of black doctors and lawyers or hispanic doctors and lawyers to be admitted ahead of better qualified children than white farmers, cab drivers,

asians seamstresses, working-class people. so this system operates contrary to economic egalitarianism. is making economic inequality in america worse, not better. i better stop before roger gives me the hook. [applause] >> thank you, stuart. as you could see from the conclusion of the book as he just stated, these two folks over here would never be confused as card-carrying conservatives or libertarians. anything but that for rick sander, at least on the intro that i read. stuart taylor on the other hand would pass as a card-carrying moderate. never found any issue on which he couldn't say on the one hand and then on the other hand. in any event we are now going to

hear from two critics from either side on both the book and the case. first from roger clay and then from alan morrison. roger clay is president and general counsel of the center for equal opportunity. he focuses on legal issues arising from civil-rights laws including the regulatory impact on business and the problems in higher education created by affirmative-action. a former deputy assistant attorney general in the reagan and bush administration, he held the second highest positions in the civil-rights division and the environment in natural resources division. he has held several other positions in the justice department including assistant to the solicitor general, associate deputy attorney general and acting assistant attorney general in the office of legal policy. he is a graduate of yale law school. please welcome roger clay.

[applause] >> thank you very much for that nice introduction and for inviting me today. thank you to the cato institute and thank you to rick sander and stuart taylor for writing this wonderful book. i will he preys on them for this book, it is terrific, makes an extremely important contribution to the debate on these issues, unprecedented contribution in many ways. i have read the book and is very readable, has lots of charts and diagrams for those who like that sort of thing. very well written, everybody should buy multiple copies and give them to friends and family, people you know, people you

don't know. it is a terrific book. and something about what terrific people the authors are. you got to be smart to write a really good book but you also have to be brave. particularly more so for them to write a book like this than for me. i have few friends anyway. i don't pal around with reporters and academics and people like that very much. rick is an academic. stuart does pal around with reporters. these people frequently take it personally when you talk about racial preferences. i am being a little bit humorous about this but it is true.

you put your career on the line when you say stuff like what is said in this book. it is not only a great book, it is a very brave book. however, nobody is perfect. and they are not perfect and the book is not perfect. the main reason it is not perfect as it doesn't quite call for the abolition of racial preferences. in university admissions and it should have and someday they will. i am going in the balance of my time to explain why they should do this. i am going to begin by reading the text of the law in this area which is not going to be done

tomorrow because it would be very embarrassing to the supreme court but let me read to you title 6 of the 1964 civil-rights act, not all of it. i'm not picking and choosing. no person in the united states shall on the ground of race, color or national origin be subjected to discrimination under any program or activity receiving federal financial assistance. that is what happens to abigail fisher. is not disputed. she was treated differently because of her race, color, or national origin. we are not going to be talking so much about title vi, talking about the constitution. the supreme court says that doesn't really mean what it says. we think that it just means what the constitution means.

the constitution has a little more wiggle room but not a lot. but constitution guarantees, quote, the protection of the law. the whole purpose of the equal protection, the fourteenth amendment was to outlaw separate legal standards. that seems pretty straight forward to me. and there are other federal statutes, section 1981, that banned racial discrimination and that includes college tuition. it ought to be fairly straight forward. three quarters say those words don't really mean what they say. there's not a categorical ban and there is an exception in this area. and you would think if the supreme court's is going to carve out an exception to the

principle of racial discrimination, it is clearly there in the law it must be pretty strong and undeniable. must be something like it helps us identify somebody that search of a nuclear bomb in new york city, something really compelling. the argument is that if you use racial discrimination in college admission, it is likely that there will be somewhat more and rehearsed interracial

conversations among students and that the african-american kids and latino kids who get these preferences are going to say something to the white kids and the asian kids that is -- just as overwhelming compelling educational benefits for them. that is what the university of texas is arguing. that is the exception to the principle of nondiscrimination that the supreme court has recognized. i think that is ridiculous. and indeed, the reason the court buys this is because there are social scientists out there who say it is true, it really

happens. increasingly these educational benefits which made only marginal improvement to education are disputed. it is increasingly disputed that there are educational benefits but it is also important for the court to bear in mind and the court's jurisprudence -- even if there are educational benefits, they have got to be weighed against the costs that are inherent in engaging in this discrimination. something is compelling, you got to consider the inherent liabilities in racial discrimination that it involved too, right? what are the costs of racial

discrimination? i should know this by heart but i don't. my little whitney guideposts on comment sections on websites. here it is. consequence of racial discrimination. it is personally unfair. passes over better qualified students and sets a disturbing legal, political and moral president in allowing racial discrimination. it creates resentment, stigmatizes so-called beneficiaries in the eyes of their classmates, teachers and themselves as well as future employers, clients, fosters a victim mindset, removes the incentive for academic excellence and encourages separatism, compromises the academic mission of the university and lowers the overall academic quality of the student body. creates pressure to discriminate in grading and graduation.

breeds hypocrisy within the school and a encourages a softball attitude among college officials. and why so many african-americans are at academically and competitive and get schools involved in an savory activities like deciding which racial and ethnic minorities will be favored and which ones not and how much blood is needed to establish membership. i didn't even mention mismatch. the mismatch but in addition to giving chapter and verse and irrefutable documentation for why this is for real problem also touches on some of these other problems i have listened to. you add those up, it seems to me it is a lot stronger than the

educational benefits from these random interracial conversations we might be having more of if we use racial preferences. let me wrap up with one sort of happy notes and one not so happy note. it seems to me and it should seem to use that one reason we should end this nonsense now is the changing face of america. 40 or 50 years ago, it was a black-and-white country and you have a lot of people who have only recently been discriminated against or recently been living under jim crow system. now we are talking about people

who get preferences now were born in 1994. doesn't seem like very long ago to somebody my age. 30 years after the civil-rights act. according to the latest census one in four americans describe themselves as being something other than white. african-americans are not largest minority group anymore. latinos are larger minority group that african-americans and neither one of them is the fastest growing racial minority groups. fastest-growing major -- racial minority group is asian-americans. african-americans are growing at 12.3%. white americans only 5.7% rate. and other rapidly growing group are people like the president's who could check more than one box in the race and ethnicity

section of their questionnaire. seems to me in a country like that we cannot have a legal regime that supports people according to their skin color and what country their ancestors came from and treat some people better and other people worse based on which silly little box they check. frequently the people who are arguing in favor -- let me tell you two minutes into the debate we are not talking about educational benefits of a racial conversation. we are talking about slavery. we are talking about racial disparity. that is the only justification anybody really believes in. even the academics don't really believe there are these

compelling interests. that is not their justification. why do we have these racial disparities. isn't it all because of slavery? last week the federal government as it does once or twice a year came out with the latest figures on birth rates and in particular on the illegitimacy rates for out of wedlock births. here they are. 72.3% of african-americans now are born out of wedlock. 72.3%. american indians 66.2%. latinas, 53.3%. for for whites still pretty high, 21% and for asians it is

17.2% so in other words seven out of 10, out of 10 for blacks, american indians and latinos. this is the so-called underrepresented minority that get racial preference and fewer than three of 10 for people who are typically discriminated against. is no accident these figures lined up quite well with how well different groups are doing not only in terms of education but crime and whatever social indicator you want and that is the real problem and that is not going to be fixed by racial preferences. thank you. [applause] >> thank you. now we are going to hear from alan morrison who is the lerner

family associate dean for public interest in public service law at the george washington university school of law. he is responsible for creating opportunities for students, bringing wide range of public interest programs to the law school, encouraging students to seek positions in the non-profit and government sectors and assisting students to find ways to fund their legal education and make it possible to pursue careers outside of traditional law firms. for most of his career dean morrison worked for the public citizen litigation group which he co-founded with ralph nader in 1972 and directed for 25 years. his work involved law reform litigation in various areas including open government, opening up the legal profession, suing agencies that fail to comply with the law and forcing separation of powers to protect the rights of consumers and the rest of the -- unrepresented class members in class-action settlements. he has argued 20 cases including

victories in virginia state board pharmacy virginia citizens consumer council making commercial feeds subject to the first amendment and striking down over 200 federal laws containing legislative veto as a violation of separation of powers. he previously taught at harvard, stanford, hawaii and american university law schools. he is a member of the american academy of appellate lawyers and was its president from 1999 to 2,000 and president of harvard law school, served as commission officer in the u.s. navy and was an assistant u.s. attorney in new york. please welcome alan morrison. [applause] >> thank you. i also have the distinction that i read and commented on stewart -- john stuart's book.

no one has come after me today. the biggest incendiary, you should have read the draft i read. i am one of the few lawyers who practices in front of the supreme court who did not file a brief in the fisher case. let's begin by remembering that fisher is a concrete lawsuit and not an academic debate about the values of affirmative-action. the question in this case is the university of texas violated the equal protection clause in connection with undergraduate admission programs and abigail fisher when she was injured by what the university of texas did? i want to start by explaining a little more than stuart did about the admission program and what it is supposed to do and what it is not supposed to do and what it does or doesn't do so we have the top 10%. this guarantees anyone who graduates in the top 10% of their high school class in texas, admission to the

university of texas. it does not get you into your preferred academic program. if you want to be in business, you guarantee something but not necessarily business. and only applies to graduates of high school in texas and can't get anybody out of state that way. it only applies if the school ranks individuals and texas and many other places for academic reasons, schools do not rank individuals because they think it is bad pedagogic lee and competitive. those students cannot get in under the top ten. and only deals with brains and not brawn. you would not necessarily get any athletes, musicians or any people besides those who scored highest on there as 80s. they are interesting but probably should not be the only criteria for what the university of texas thanks for admitting

people the undergraduate program. it cannot work for national universities because there is no way for the top 10% around the country, only works for a single state university. nor can it work for graduate schools. there simply aren't enough schools even in a place like texas to get it into the university of texas graduate program or anything else. it works because in texas, the legislature was perfectly aware of this. in texas, very highly segregated high school based on residential patterns of racial segregation, not required but economically largely or social so the blacks have their high schools, hispanics have their high school and largely white high school, not completely but largely done that way and that is the way

they were able to get some significant racial diversity, by using the top 10%. university of texas decided to do something more than that. they concluded after a period of study that they did not have sufficient diversity within racial groups or hat in sufficient numbers of racial minorities in school so they went to the holistic approach and that is not my title. i can't be blamed for adopting it so stuart 11 can't pick on me for that. down one axis is the academic achievement index and that is a combination of your grade point average tenure as 80 and there are boxes like a box here and this way and another index and that consists of a single number. race is not involved in that

all. than the personal achievement index. there are six factor is coming to a total six points. grade is not a specific factor although recognized to be included in the factor called special circumstances. those factors are combined in a single number. my understanding you can't get a point for each of the factors so things like leadership, athletic ability, music, go in to these circumstances. you get a number. the total number at the end and the numbers at the bottom go across this way and up this way and at the intersection of the numbers you get a box. everybody in that box gets admitted or gets denied based upon the number of people they need for the undergraduate program. there is no specific reference to race in the final

determination. there is no quota, no goal and some desire and critical mass they want to talk about. it turns out that between 60% and 80% depending on the year are admitted in the top 10% and different numbers obviously, holistic approach for those other years. in addition, 90% of the students who actually attend university and one of the difficulties with the statistics in this is between those who get admitted and those who actually attend so you have to be a little careful with your numbers but 90% of people who attend are from the state of texas which means it is difficult to get people in from out of state. no question the goal is to bring in more minorities and more diverse minorities. university of texas believes

that it does this but it is impossible to determine exactly who is preferred and by how much because race is admittedly part of that but only one part. but even if there are very large numbers and a large impact on who gets admitted, the numbers of additional african-americans and hispanics is quite small. and this is one of the strange things about this case. the defendants say the preference is not very much. these are proximate numbers, from 3% african-americans in the top-10% to 4-1/4% with the holistic approach and they say if it is a preference is a very slight preference. the plaintiff says on the other hand wait a second. it is a slight preference doesn't help very much, it can't be very important.

both sides are arguing the same thing, that is not very significant in terms of numbers. that proves it is not important and the walesa's that is proof that and it is not very much are. kind of an irony. i don't know what the court will do about it if it figures out that's what the two sides are saying. the case by the two parties is being argued on a very narrow grounds. both of them are accepting gruber and saying we comply with the or no you don't comply with it. particularly on the plaintiff's side, arguing much more broadly for an end to the use of diversity at all. will be interesting to see what the court does with that. my own view is the plaintiff has the burden of showing the racial factor had a significant influence in the fact on the

programming general and even those there are no goals or specific about it, the plaintiff has the burden of showing a significant impact. there is no question if miss fisher had don six which is the highest score for academic achievement index, would not have been high enough to put her in a box that would have gotten her admitted. the argument that you were not harmed by is this because you would not have gotten admitted under our system. the difficulty is that you can't tell how much help anyone else got as a result of the system because there's no scoring based upon race. if they did that they might run afoul of the michigan problem having specific goals or unassigned numbers which creates another irony. it is possible miss fisher might

have been admitted in a summer program under which texas admit the number of people are not admitted in a regular program. it is not clear to me or to anybody else whether she actually tried to get into that program. in any event she was not admitted. one of the arguments being made is it is possible to reconstruct what would have happened. maybe this is a lawsuit which could prevent the university of texas from going forward with its program in the future. the problem for ms. fisher is she has already completed the university. this is not a class-action and she has not sought an injunction against the future use of the program because she would have no standing. the only thing she is seeking is monetary damages. the one item of damage she has claimed as far as i am aware is she paid an application fee of $100 or something in that range

and she wants that feedback. not at all clear she isn't titled to under any circumstances and this is the university of texas and versus this thing called the eleventh amendment's which prevents people getting money back unless the state has clearly waived its right to engage in the activity, not at all clear that they would be that passed here as well. her lawyers claim there are other damages, emotional damages. not clear she is entitled to them. a case that says when you violate the constitution you are seeking damage, you have to show intentional violation. it will be hard to show that here at all. the irony of this is it is not something someone thought up as a means of getting out. these problems were all presented to the supreme court, they sat on the case for three or four conferences before deciding to take the case and

when they took it only a justicees act and on the order because just as elena kagan was solicitor general when they supported the university of texas and fifth circuit court of appeals so she is not sitting on this case and we have only eight justicees on the case and potential for a 4-4 tie is certainly there. despite these problems and the fact that this fischer has dubious remedy even if she can prove she was harmed, the court nevertheless took the case. some of the breeze and pointed out among other minorities the asians are discriminated against and it is historically true the chinese and japanese were discriminated against for a long periods of time in our history. if you are interested in the day and i don't know what may prove you might as well have them. in texas there are 3% of the

population is asian american. there's another problem with these numbers. do they use the overall percentage of the population, use high school graduate or high school graduates who are able to go to some college at all like the university of texas. leaving those numbers aside, there are 3% asians in the population of texas. they constitute 16% of the class and 61% of all asians who apply get admitted. obviously a much higher percentage than everybody else. let me make a couple points. the first is the supreme court has accepted, despite what roger clay has said that diversity is a sufficient rationale for a university to attempt to include more minorities in their entry

class. i think universities should be able to decide how they want to structure their entering class and academic achievement alone does not and should not be the only criteria universities if taken to account. .. because the plaintiff says, texas can't do this.

and you say to them okay, if you accept diversity of the rationale, what is it that texas can do besides the top 10%, which the university says is not adequate for the reasons i gave earlier? if they want to increase african-americans and hispanics without going to a quota system, the easy answer is just regard race entirely. think about that for a second. you're now an admissions officer and you have a personal essay in front of you by the student. the students as i was a member. i grew up in the ghetto, subjected myself to this kind of thing. i was arrested by the police because i was black and i decided what i needed to do was getting education and become a lawyer. can anybody expect any reader to strike the fact about being african-american from that essay?

or are we going to have someone go through at it every essay to be sure there is no indication of the race of that individual, and i were going to do some kind of my inexperience on the reader to see that they don't even take about greece. that's the problem the university of texas has. despite the fact this is a very narrow case in many respects, spirit court has shown it is supremely able to disregard the wishes of the litigants to go as broadly they want and akp citizens united for example. thank you very much. pockmarked >> i wondered if the assembly would get citizens united into this discussion. >> were going to take a quick, back and forth before we open it up to the floor. rick. >> will be quick for me because

i have to leave in eight minutes, i have three very quick points. the reason why we need transparency is because we need to have better facts. if you listen to alan and robert clegg, it sounds like there's talking about the university at some point they are because so much of the dialogue about affirmative action in america is just based on select facts disclosed by parts of the system. the proportion of the realm of information that's out there is maybe one per hundred. so transparency is a good way to move the system forward. whatever you believe about preferences i think. secondly come when you look at the operation of preferences, the holistic idea really is completely bug. we're not talking about looking at individual essay and see what

the students race really shaped like six periods in a profound way. we are looking at systems were eubank students by academic criteria and there's a whole contrary to students in a particular race who are not eligible and then you admit everyone of those students. it's not a discretionary. that is that justice o'connor was trying to unsuccessfully put forward. what a lot of people are sympathetic to you is a mechanical hundred% application. the other problem with allen's analogy is you're not looking at people who grew up in ghettos, people have been arrested by the police, the vast majority of african-americans receiving preferences at selective institutions come from upper middle-class or wealthy backgrounds. that's simply a fact. so the preference systems are not getting the diversity we want. they get a diversity that feels good come of it seems to give an

aura of legitimacy to the university, but not one that has the potential to save the educational experience. >> i agree with great deal with what alan said. if there is the disagreement is over is poor and worsened proper to reach out to the state in which the standing shaky and to think they don't need to decide anything big in this case. they can just decide without disturbing anything anywhere else. and they cut it, that's true. a while ago i might've said they shouldn't, but that's for the supreme court does. they reach citizens united and in roe v. wade. they reached out morris p. taxes and they reached out in roper versus simmons to the juvenile to tunnel the case. the people who don't want them to reach out in this case, many of them coming to want them to

reach out anytime it helps their cause and maybe they even reached out and shot a case, which is allen's case. and my point they are is a court should just make things up, but they are to a large extent a policymaking body. it has evolved that way and that's what they do. they take cases and decide broader principles under those cases. and here we have a very serious problem that is a little bit of stretching out my pen to ban racial preferences but impose the remedies suggested transparency and assist you in another component because as her book details, every other institution in american society has failed to come to grips to this problem. the at the university systematically lead applicants and the rest of the country over how it works. the politicians are terrified of it. no major politician has attacked affirmative-action publicly and about 20 years. not 20, maybe 16 years.

this is not going to change. or going to have racial preferences for the next 100 years or more unless the supreme court does something to slow it down. >> local branch, policy -- say it ain't so. brief comments, roger and allen. >> i'm going to limit my comments to what alan said because he spoke after me and i spoke after brick and sewer. on the decision ability issues, i think whether abigail fisher would have gotten in, i think the huge gaps and ethics he scores as stewart and rick were talking about a relevant. it is significant parties are basically texas has now at the merits stage relegated it

standing argument to a footnote. so i think the court is going to decide the case. everything else that alan said, most i do not agree with. i think it is instructive to put the shoe on the other foot for a lot of these arguments. he says well, you know, asians make up only 3% or something of the general population in texas and their percentage of the student body is way above that. you could've said the same thing about jewish in the ivy league 50 or 75 years ago. that doesn't mean they were being discriminated against. and that was no justification for the anti-jewish quotas that the ivy league has. he says well, you know, there's all kinds of things in addition to academic achievement. while nobody appeared to say that academic achievement not to be the only thing left out.

i'm happy for texas to give scholarships for quarterbacks and tuba players and rich alumni and all that kind -- while not reached alumnus, at any rate, the question is whether that to discriminate against people on the basis of race. that's different. it's different as a legal matter, different as an historical matter, different as a moral matter. yeah, we had to defer to schools in general when it comes to structuring their classes, but not when it comes to racial discrimination. i'm sure alan would not have been okay with deferring to ole miss 50 or 60 years ago when i was waiting rice in deciding whose ticketed at it. i don't think we have to defer to the university of texas now what it wants two-way race. >> one thing i didn't get a

chance to talk about is that it's quite perplexing to me, there i don't know how many studies come the scores and of studies, many if you read the reports of them in the briefs, completely contradictory to one another. one study says this, one says that. the other one says this study proves that. none of these were the subject of child tape or cd in senate district courts. my question and i question and i don't thought the answer is. what is the supreme court supposed to do with all of this? indeed, what are they supposed to do with bricks very fine book that has a lot of study, that if you read the briefs of studies are wrong and invalid. how is the supreme court supposed to deal with that problem? should the supreme court be decided based on a bunch of studies, no matter who did them in which they appear to be contradictory without having a

preceding, or at least have 70 legislative precedent in which the legislature could sit down and say we've actually thought about this and consider this. or even perhaps at the university of texas was presented with the studies and sat down to make a conscious decision. i do agree with stuart that transparency is an important aspect to it. to the extent that some of these programs come and do not identify anyone in particular, the facts have been known it's only been known as result of discovery in litigation. it is always seemed to me that if you can't tell people about a wonderful program that you're doing because he's kept a secret of all the details and maybe it isn't quite so wonderful as you think it is. having said that, it's unclear how the supreme court would order transparency as a renegade for ms. fisher who was only asking for money for not getting it knitted.

but i leave that conundrum to the rest of you. >> let's now have a few questions from the audience. please wait until the microphone gets to you, identify yourself in the affiliation you may have. this woman on the end. >> thank you. peggy or chelsea, congressional on higher education. i've covered hispanics for years and one thing about covering them as they are so diverse. even the census recognizes they are not a race. so why have hispanics been involved in this? as we see in our colleges, more and more kids now checking out multi-racer can't be distinguished as race, why is receiving a factor anymore? >> is that directed at a person? >> why are hispanics considered race? >> stuart? >> it began in the late 60s when affirmative-action first started being used.

they were quickly extended to hispanics and i think the logic at the time was although hispanics didn't have legacy, like blacks they were on the low rent of the population socioeconomically. there were people who needed a leg up. that was the idea. it's a good question. i think maybe it should've been just poor people. >> if i'm trying to give a diagnosis as opposed to a prescription. the rest of the diagnosis is now is political. hispanics are very powerful voting bloc in growing, especially in california, especially in texas. best of reason which began as an egalitarian thing has evolved into a racial spoils system, where the people who benefit are often more fluid than the people who don't. i stop myself on that if it. of course our point is sometimes they've been harmed.

>> the gentleman right here is a question. >> identify yourself. >> my name is stephen hankin. i have no affiliation. i'm just retired and come to cato events all the time. a lot to ask a question you probably might consider outside the box, but everything that you're all saying assumes that there should be criterion of some type administered by the university, whether it's academic achievement and i'd like to throw out to you the idea that every other service that is provided in our society is divvied up a price and therefore when the people who most need it, who most need that will determine that they are willing to pay the price for the best education.

and in fact, a lot of times you have really really people who have no need to go to the university and they're going to get very that a lot of things. it may be the weakest event that make it the best -- the most out of the education. my question to you is why is this absence of any discussion, what i just said i'm affirmative-action or of education. it's pretty clear that the customers of the situation are really not customers, they are beneficiaries more than their customers. >> that should be directed to allen, the only remaining academic appear. duke is your money were out of higher education? >> if they come to my classes, they definitely do. [laughter] i guess i think the united states today, to move ahead, you have to have a college degree. many people who would be able to enter college and succeed in

college don't have the money to pay for it. i for one would not like to see university system that was treated like the market place. [inaudible] 's >> very quick. >> you could still have a government program that gives money to people who are poor so they could go to college, but it doesn't have to have anything to do as changing the criterion firm price. >> i guess i don't understand your system. >> is a lady right back there who has her hand at. >> hi, my name is kim humphrey. in a recent graduate from catholic law and the policy -- at the aclu. and i just want to first just a

few fallacies i guess. just the assumption that anyone who's in the middle class may not have been arrested or may not have had any issues related to raise, i think that plays an important part in the conversation. also the point about stem graduates. i think they are down generally across the board regardless of race. so then i guess my point is, why aren't preferences of any kind, like i would think they would need to be as transparent. so i guess it's a question, like why is race the only issue and preferences. that is the biggest. >> i would certainly support transparency and athletic

scholarships, legacies and anything else someone could identify as a significant factor is that at least ought to be a subject of debate. one could be for or against athletic scholarships, but really sad to know people are doing, how long are they staying in school, what degree of preference are we giving? i think the state university should be required to divulge things about legacies as well. >> doesn't much as raise the issue, athletic scholarships are based on ability, presumably academic admission is also based on ability, but when you throw in racer rather irrelevant criteria to ability, then you raise the question. >> welcome to the university in the grounds of their ability to bring different viewpoints to the university you may accept that. moreover, i think the question and all of these things is not whether you can take a factor into account. if it's a subject of public debate, the question is not

whether there should be any benefit, but how much it is. if you don't buy the extent of preferences, the public can't have an intelligent debate about it. >> i don't think there's any problem with transparency and i agree with alan on not. i do think we've got to keep in mind that recent special. treating people differently because of racism team that is uniquely ugly. is there with a lot of which are not supposed to do it. i think we have a civil war that had something to do with that. there's all kinds of reasons why it's different. one thing i wanted to make when allen was stuck in the forest of social sciences aceves and i say that, he's exactly right and that is ridiculous that the supreme court has carved an exception out of the equal protection clause that depends on social science evidence. and i think at the social science evidence is indeterminate, which is, then we shouldn't discriminate against people on the basis of race.

>> quickpoint on stem grass. our point isn't that we need more. maybe we do. our point is when black or hispanic students go to college wanting to be stem majors, they should not be misled to go to colleges where they have very little chance of becoming stem majors. >> gentlemen appear in the blue shirt. >> days squyres from george washington university in previous member of the woodstock institute. you give us numbers on the percentage of people born on the weblog of various groups. what do you think accounts for those patterns? 's >> well, that's a very interesting question. i'll tell you one thing that i think it doesn't account for. i don't think that you can say well this is because -- these are the wages of discrimination

and slavery because these numbers have been getting worse over time rather than better. you would think at this as a result of discrimination and slavery would've been worse during the jim crow era or worse than that when you go back to slavery. i think they are complicated social causes for this. i think that the great society, i think the way the welfare system worked for years is cultural. and i think it's also fundamentally has a lot to do with morality and religion and the fact that the four essays -- it's become more and more acceptable in our society to have children out of wedlock. and in particular in the african-american community. and it's too bad. >> and a social science does show anything, it is the correlation between to a parent

families and achievement. >> absolutely. i was also politically incorrect to say for a long time. when daniel patrick moynihan pointed out the problem in the 1960s, he got such a firestorm of criticism that he stopped. as brave a man coming at nothing to do with this issue for the rest of his career. but now it is becoming i think increasingly recognized on both sides of the aisle, dennis rogers says, you name the social pathology, whether it's dropping out of school, getting into trouble with the law of, whatever. there is a strong correlation between it and growing up in a home without a father. >> this gentleman right here. were going to have to show this to a close in a couple minutes. this'll be our next-to-last question. i'm sorry. >> my name is john rosenberg, i've been writing a blog on discrimination for longer that i can now remember.

i have a question mainly first stuart. he served from this before, so it won't be a surprise really. i thought the book itself was magisterial really, incomparable. until it got from the end, where it didn't call for an end to preferences based on race. one of the strongest reasons given in the book for not calling for banning race preferences seems to me like the heckler's veto. well, they'll never obey it. they'll never go along it so we can't really get rid of race preferences because they want to do it too much. i grew up in a state with the governor stood in the schoolhouse door. i'm not really moved by that argument much. i want to ask you kind of a narrow or very specific question. the things the two of you propose at the end of the book to come up with a middle way

between abolishing preferences in keeping. the middleweight had three points, transparency, which we talked about a lot, trying to tap preferences by limiting them to the number of limiting to the same size as socioeconomic reference this. but the 13 he was the most interesting one, which is who want to outlaw any financial aid taste on race. and the argument there is wide? could you give me an example of a legal argument, not a policy argument. i know the policy argument. what is the legal argument that you would name their financial aid based on race should be unconstitutional or illegal that wouldn't also apply to admissions preferences based on race? >> good questions and i will try to answer all of them fast. the first is if you don't like her chapter 18, with the other 17 chapters.

are facts are more important than our opinions. if you think we went down in the end, find think it. as long as you buy the book and read the first 17 chapters. [laughter] now i also consider reason we shrink? we think a conversation and at the texas top 10% planned are in some ways worse than all the fashion preferences because they bring in more mismatched kid, mismatches or hobbyhorse at this point. why didn't they space haulers sketch without racial preferences? in the supreme court, this is gut to be a cost-benefit analysis. we talked about that. when it is race-based scholarships come at a analysis is easy and clear. you know, there is no benefit to race-based scholarships. it only encourages a bidding war for affluent black students,

whether they go to harvard ordeal or pen, whose offering more money to people who don't need it instead of offering it to people who do need it for whatever race. so we thought that was a slam dunk. we also thought it was necessary to avoid an end run around our second claim, which is race-based preferences campaigning much as socioeconomic preference is because the universities might say i would say, we can handle that. we'll just get race-based scholarships to even things out. as we would like to plug that occasion. >> were going to have just one last question. this gentleman right directly here in the middle of the second row. >> my name is cheryl chandler from high-tech consultants. i'd like to go back to the question of children without getting married. both after the children is born,

how many eventually get married and transform yourself and a married family with children and how many have stable relationships and make a 120, 30 years without getting married and yet still have children. >> does anybody have any evidence? >> company intact families of the child was born and that getting divorced? i think maybe roger is in favor of mandatory marriage for people as a solution. it's an interesting statistic. i do cry. think people with two parent families are better. could be the same or opposite back, but i don't think that is much to do with this issue here. >> has everything to do with this issue here. the reason there is enormous pressure on schools to use racial but i preferences is because of the fact that when kids get to be 18 years old, there is a real gap in the

number of african-american kids who are doing well in school. and i think that is traceable directly to the implosion of the black family. and yeah, there are some couples can maybe get married the day after the kid is born and there are some couples then maybe get divorced after the kid is born. i understand all that. those are all possibilities, but look, that doesn't explain numbers like the ones i've read. 72.3% of children to african-americans being born out of wedlock is a national disaster. and you're not going to joke that away. >> the book is available

outside. "mismatch: how affirmative action hurts the students it's indended to help, and why universities won't admit it". stuart will be glad to sign copies for you. richard sander had to go to another meeting. join us now for lunch up on the second floor and let's thank our c-span audience for being with us. [applause] and our speakers for today's performance. [applause] [inaudible conversations]