The Affirmative Action Conversation Colleges Should Be Having

So here in the spring of 2023, we're waiting on U. S. Supreme Court decisions on two significant subjects with repercussions for higher ed. One is student loan forgiveness and the other is on affirmative action in higher ed.

And Jeff, I'm not sure the last time that higher ed was featured in such a two prominent topics before the court. Today we're going to talk with a former university lawyer turned college president who once before waited for a major decision from the Supreme Court about what it's like to be in the room where it happens and what higher ed should be doing right now as it waits on this episode of Future youe

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I'm Jeff Salingo.

And I'm Michael Horn. So, as we mentioned at the top of the episode, aspects of higher ed are on trial before the Supreme Court right now in a significant way. And even as there's been a lot of media attention on both, we wanted to think a bit more about not just the forthcoming decisions on diversity and admissions at Harvard and UNC from a narrow perspective of what is the impact just on admissions, but really to consider all that it might portend for higher ed in the future.

Yeah, Michael. And so today I think we want to look to that future by looking at the past. And to help us do that, we're going to welcome Jonathan Alger, who's the president of James Madison University, to future you. Now. Before James Madison, John worked at Rutgers University. But most salient to this podcast was that before that he was the assistant General counsel at the University of Michigan, where I first met him. And it was there that he played a key role in the university's efforts in two landmark Supreme Court cases on diversity and admissions, because this is certainly not the first time that we've dealt with this issue before the Court, and that was in 2003. One case involved the University of Michigan Law School. The other was Michigan's undergraduate admissions policy. These are well known as the Grutter and Gratz cases in higher ed and as well in Supreme Court law. And so of note, during those cases, he coordinated one of the largest amicus brief coalitions in Supreme Court history. So he's well positioned to help us think through several potential implications from the pending decisions. President Alger John, if we may, welcome to future you.

Thanks so much for having me.

John Just for context for our listeners, right now we're in a period of waiting for the Supreme Court to rule in two major affirmative action cases and admissions. But Unlike, say in 2003, when the timeframe between the oral arguments and the ruling was less than three months, now it's going to be more like seven to eight months. The oral arguments in these cases were held back in October 31, so the court is expected to rule in late June in this case. But I'm curious, when you go back to 2003, what you recall from that period between oral arguments and the decision itself. The oral arguments, of course, they give you some somewhat of a preview maybe of major themes or thinking from the justices, but you still don't really know the decision until it's handed down.

Well, certainly that was a momentous time for all of us, and all eyes were on Justice o' Connor back then. We knew that she was the central swing vote, and we had spent a lot of time preparing for her questions and listening very carefully to what she had to say and ask in oral argument. But we knew we had to be ready for the outcome of these cases. So we had working groups that had been formed and were ready to adjust the admissions policies as needed. Back then at the University of Michigan, there was a case involving the law school admissions policy and, of course, a separate case involving the undergraduate admissions policy. So we were ready in both of those cases to react quickly. We had an inventory of policies and programs that might need to be reviewed beyond just those admissions policies, depending on the outcome of the cases. And we were in touch with colleagues and organizations all across the country that were ready to analyze the decisions and provide guidance. And there were also plans that were underway for national conferences and convenings that summer because we knew the rulings would be significant and would impact higher education across the country.

So, John, let's fast forward to today then. So it's been around four months since oral arguments, and given the makeup of the court, it seems most leaders in higher ed expect race conscious admissions to be struck down. So if you were advising a higher education institution, what type of scenario planning would you be recommending now? And maybe a little bit of what you might be doing even at James Madison.

So it's an important question, Jeff. And while I would certainly like to be optimistic, it really doesn't make sense to me for the court to have taken up these two cases now unless they wanted to make some sort of statement. And we know the composition of the court has changed fairly dramatically since 2003, of course. So I think many of our institutions are reviewing their admissions policies right now. Not just undergraduate, by the way, but also graduate and professional programs, which are often more competitive. And it's not just admissions policies and programs. We also need to be reviewing any other programs where race might be one of the factors considered that could be financial aid, outreach and recruitment programs, because the same general legal principles apply under title Virtual, which applies to all public and private institutions that get any federal money, as well as the equal protection clause, of course, that applies to public institutions. So jmu, like many other schools, is conducting that kind of review right now. We don't consider race as a factor in admissions, but we still need to be aware of all the potential ramifications of these cases. And we're continually discussing race neutral alternatives that will help us to achieve the educational benefits of a diverse student body. That was the end goal that we talked about in the Michigan case. You know, a couple of other thoughts here. The Michigan cases really brought together a wide ranging coalition in front of the Supreme Court. Not just higher education, But K to 12 schools, civil rights organizations, corporations, former military leaders, et cetera. And we worked across institutional lines to talk about the importance and value of diversity in our society. And ever since the Michigan cases, I've believed that we needed this coalition to work together and outside the litigation context to build the pipeline to provide access to students from all backgrounds. I've been working with colleagues to translate that belief into action over the last 20 years. For example, we have a Valley Scholars program here at JMU where we work with seven different local public school districts. We identify first generation students that we think have the aptitude to go to college, but probably wouldn't without some form of intervention. And we work with them in 8th grade and all through high school with mentoring and tutoring. And the big carrot is they know there is a full tuition scholarship waiting for them if they keep their grades up at a certain level and get admitted to the university. It's a tremendous model that we know works. I worked on a program like this at Rutgers that still exists, and at jmu, that oldest class is about to graduate from college this spring. So those are the types of models we have to be working on, but they take time. They don't happen overnight.

Well, and a lot of this also is how broad or narrow the decision will be. Right. Because like you in 2003, we have two separate cases here, and there's so many ways this decision could go. So even if people are assuming the general direction it's going to go, it could be a narrow decision, it could be a broad decision. So how difficult does that make it for institutions to plan right now?

Yes, that does make it challenging to think about the different scenarios, especially with two cases. Right. And it's an interesting comparison back to 2003 in the Michigan cases, because there again, you also had two cases that were heard simultaneously by the court offering two very different admissions models. Now there, that was actually a deliberate choice that the university made. There was one model that was more quantitative, if you will, the point system from the undergraduate level, and one that was more holistic, flexible or qualitative, you might say, which was that law school model. And that really gave the court the opportunity to split the baby and choose a model it believed could meet the narrow tailoring requirements. So that was really a strategic choice to bring two different models in front of the court, thinking that they might at least choose one of them to say, this is what a good narrowly tailored program could look like. The challenge we have in front of us now is we have cases from two different institutions, a public and a private, which really ensures that all institutions across the higher ed landscape are going to be impacted by these decisions. And if you look at what's happened over that 20 years, since 2003, the court used the Fisher cases from the University of Texas to really clarify and tighten the standards of narrow tailoring even further. And at some point, of course, it becomes very difficult. Narrow tailoring gets more and more narrow. Right. And when you think about the human and financial resources that are required to defend such programs, at some point, it becomes so difficult that institutions really have to be thinking about other types of alternatives. And I think that, frankly, has been the goal of some of these challenges is just to make it incredibly difficult to justify and defend these programs. So I think the reality is colleges and universities have been taking holistic and systematic approaches since 2003. They're not just focusing on a single silver bullet or just relying on an admissions policy. They've been working on outreach and recruitment and pipeline programs and campus climate. So all these pieces fit together in our planning. You can't just look at anyone in isolation. And we've been experimenting with and doing research on different approaches in admissions, especially in some of the states that have already disallowed the consideration of race. And you've got changing demographics in our society on top of all of that, certainly since 2003, when you look at who's coming out of the K to 12 schools. So for all these reasons, I think our institutions are actually more adaptable now. They've been through this drill before and they know how to prepare. And we have better networks through our national organizations to share best practices really quickly.

So then let me ask you this, Jonathan, because one of the things I hear from the vast majority of institutions which tend to be less selective than Harvard or UNC in these cases, is that because the decisions, they just don't think the decisions are going to affect them as much. You're the president of an institution that is less selective than UNC and Harvard. So what do you say to that? What are some of the ways that in your opinion, this decision could have a broad impact across higher ed? I know, again, I know that we don't know what the decision is going to say, but what do you say to those institutions? When I talk to them, they're like, okay, well that's something for the uncs and the Harvards of the world to worry about, right?

Yeah. And I think there is some of that attitude that folks have as well. We're not Harvard, we're not unc. This isn't about us. But a couple things here. First, first, we have to consider that there are implications beyond undergraduate admissions. Right. That graduate and professional programs that are offered at many institutions are smaller and often more selective. And not all the same tools that work at the undergraduate level might work at the graduate or professional school level. So that's one thing that we have to keep in mind because many schools, of course, have smaller graduate and professional programs that are selective. And secondly, I do think we really have to be thinking about, particularly financial aid and scholarships that could be impacted. Back when I worked in the US Department of Education Office for Civil Rights in the 1990s, we developed policy guidance on race conscious financial aid modeled after the Bakke decision and applied the same principles that you see in Bakke when you talk about diversity and its educational benefits and how you narrowly tailor a program. So I really do think we've got to pay attention beyond just admissions, but to financial aid and possibly other types of outreach and reform recruitment programs, if and when race might be considered as a factor. One other hidden implication, Jeff, that I don't think has been widely discussed, when you look at Bakke in 1978 and then the Michigan cases in 2003, they were based on the importance of diversity to the educational mission. And that mission was in turn premised on institutional autonomy and academic freedom to make these educational judgments. And so it'll be really interesting to see if the Court addresses that point about institutional autonomy and to what extent courts should defer to academic judgments, because that has implications for all kinds of cases, even things like tenure and promotion policies, grading, et cetera. So that is something I think a lot of people haven't thought a lot about, but that we really should watch in these decisions.

Frankly, listening you run down that list, I think there's a lot of things that haven't been covered that much that are going to have some significant impact, impact from wherever the Court does go or chooses not to go in the next few months. I'm curious, as you reflect back to 2003 in that 5:4 majority opinion upholding the University of Michigan's consideration of race for admission to its law school, of course, Justice Sandra Day o' Connor wrote a line that's been quoted quite a bit since then. She said, we expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest in student body diversity approved today. Well, we're not quite 25 years from that opinion. We're within five years of it, though the line was referenced several times in the oral arguments. I'm just sort of curious because it's hard to know how impactful something is at the moment versus how it's going to be viewed. When Justice o' Connor wrote that, did that line seem significant to you at the time in 2003, or has it sort of become significant?

Yes. Well, certainly it got our attention back in 2003. Now, as a lawyer, I would say most of us at that time and still do consider that particular quote to be dicta rather than a binding precedent from the Court. Right. This was a comment that it was clear that Justice o' Connor was very concerned about ensuring that these race conscious programs not be permanent. She really wanted to underscore that narrow tailoring meant that they should be utilized only so long as absolutely necessary. So we certainly understood that point. Having said that, you know, she really pulled that 25 years idea from the period between Bakke in 1978 and the Michigan cases in 2003, which is sort of roughly a generation. And we knew that line was not going to be forgotten, that the opponents of these race conscious programs were going to Circle 2028 on their calendars and bring it up again. And we also knew there was a lot of work to do if you were going to get to that point where race conscious programs would no longer be needed. I actually took it to mean, schools, you've really got to work quickly and be very active with these efforts because you've only got a fairly short period of time here. And part of that dicta was also based on an assumption, I think, that our K 12 schools would make substantial progress over that period of time in providing equal access. And in many parts of the country, that progress, I think has been slower than she might have anticipated at the time. So absolutely, it was something we were concerned about preparing for. But in the meantime, we had time to experiment with different methods and admissions policies and do further research on the educational value of diversity. So I do think a lot has happened since 2003 that has positioned us better for the future.

So I'm kind of curious because we mentioned this. I want to start talking a little bit about what's next. And so we talked about this 25 year period. So now let's look at the 25 year period ahead of us. Right. Because we've had several cases since Gratz and Gretter, obviously the Fisher cases, and now these cases as well. And given the fervor about what it takes to, to get into a selective college these days, which I've written a lot about recently, I mean, do you expect cases like these will just go away even if the court rules against race conscious emissions? Is this kind of the last moment of this or do you think that this will just keep coming back in some way?

Yeah, that's a great question, Jeff. And I think the short answer is no. I do expect that these types of challenges will continue. We've already seen a couple of challenges filed against medical schools in Texas, anticipating the court's rulings here. You know, if you think about it, schools that practice even race neutral alternatives might still be challenged about whether these approaches are in fact truly race neutral. So there could be new lines of attack even after these cases and by the way, it's not just litigation in the courts that we have to be thinking about in higher education. It's also complaints with the Office for Civil Rights at the US Department of Education, an office for which I worked for a number of years back in the early 1990s. And it's pretty easy to file those complaints. And you're already seeing that. Incidentally, right now you're seeing challenges to gender based programs as well. Now, that's a different body of case law. Of course, you know, Title IX is a different statute, a different legal standard, but it represents that these are all there are these broader challenges out there to forms of diversity and to actions and efforts to try to diversify student bodies in different types of programs. So scholarships and summer camps and things like that are being challenged already. But having said all of that, I also think that institutions are going to continue to find ways to work on their diversity and inclusion goals because it relates directly to their educational mission. And there has been a lot of research that shows that diversity and excellence go hand in hand. So I don't think the efforts are going to stop, nor do I think the challenges will stop. And I think the broader political and social context in which we find ourselves suggests that you will continue to see these challenges to any sorts of programs to try to improve diversity.

So thinking about those challenges to the, if you will, alternatives to race conscious admissions, I'm curious to get your take about which ones you might expect to gain ground in the years ahead, assuming that the court does strike this down right. There's been the percent plans like in Texas. There's been greater use of socioeconomic data in admissions. There are strategies like offering college courses from highly selective schools to high school students, similar to what the National Education Equity Lab does to find talent. Which ones do you think are going to be ascendant in the years to come? Are there ones that we haven't seen yet that will emerge? Perhaps?

Right. Well, my guess, and this is just an educated guess based on where we are right now, is the most prevalent alternative I think we're going to see in the short run at least, is likely to focus on socioeconomic status or some version thereof, including programs that that look at first generation students going to college or to professional and graduate schools. It's interesting, if you look at the different public opinion polls on this subject, there seems to be much more public support for approaches that address economic differences rather than racial differences. There was just a recent Reuters poll that said 62% of the American population opposes the use of race as a consideration in higher education admissions.

But.

But 58% support diversity goals. So that's an interesting point, that people agree that the goal makes sense, that we need more diverse student bodies. But how you get there seems to matter to a lot of people. And I do think that socioeconomic status is something that resonates with a lot of people when they think about disadvantages that people in our society face. So it's not an exact match, obviously, for race. There may be some correlation, but there are clearly differences between those things. You know, geography. You mentioned the percent plans, for example, like you saw in a state like Texas. It's certainly another approach, but of course, ironically, it relies upon and recognizes that there's continuing segregation in the public schools. And it only works in states that have certain demographic patterns. And it certainly works a lot less well for graduate and professional programs and any sorts of programs that draw nationally. I don't know how Harvard would have a geographic plan. You know, what would they do, say we're going to admit every valedictorian in the country? They can't even do that. Right. So geography can only work in certain very limited circumstances. And I think we'll also see just more of an emphasis on other forms of life experience in a holistic review approach. And that might be things like overcoming obstacles of various kinds, having work experience. The challenge with all of that, of course, is it takes a lot of human resources. If you're talking about wading through all of that detailed information about applicants, especially with programs where there might be thousands upon thousands of people applying.

And of course, it just continues to open up institutions for complaints that are filed with the Department of Education or other lawsuits, because again, if somebody gets in and somebody else doesn't, people are always going to be looking for a reason why. Absolutely, John, as we try to wrap up here, you know, there's been some pieces written about what's next to fallen admissions after the use of race. The New York Times had this piece a couple of weeks ago about things like legacies, which obviously tend to favor white and wealthy applicants, early admissions, which tend to favor the wealthy. I want to add another to the list, athletic preferences, which of course were a big one during the. During the Varsity Blue scandal. Any thoughts on those? Is there anything else at risk if race conscious admissions goes down? You talked about things like gender and other things. Anything else that we should be on the lookout for, right?

I think, in fact, that's already happening, Jeff, to your question. I think criteria that are facially race neutral, but that can have a disparate impact based on race, are certainly going to be under much more scrutiny going forward. We're seeing that you mentioned legacy preferences, standardized test scores. There's a huge debate right now about standardized test scores because of course they can correlate with family wealth. And I think we're also going to see an even more careful reexamination of other criteria that in the past might have looked, you know, seemed fair and innocuous, like extracurricular activities, students that did unpaid internships or had wonderful international experiences. Well, those are all things that might not be available equally to students from all backgrounds. And so I think there's going to be a lot of scrutiny about factors that might correlate with family wealth or those hidden advantages and social capital that families have. And I also think we're going to see more of an emphasis on programs that seek to provide those types of opportunities for less advantaged students. So perhaps starting at earlier ages so that students from different backgrounds can be prepared for the competitive environment of college admissions. This is a really important ongoing national conversation.

John, you have brought up so many points for us to chew on and things that have escaped, I would argue, the dominant media narratives. Just really appreciate you joining us in Future youe and shedding this perspective.

It's been great to be with you today. Thank you so much.

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oh, welcome back to Future you and Jeff, As I said at the end of the interview, I think John brought up so many points that just haven't been talked about in the media that much. You know, most of the Coverage has been around using race and admissions. Who gets discriminated against when you do it, you know, on the one hand, and then the benefits of a racially diverse class on the other. But he brought up a lot of things that I. I mean, naively, perhaps, just hadn't thought of. And I'll call it the downstream impacts. In other words, what the implications of this might be on how financial aid is awarded, how a school does outreach for admissions, perhaps as bit more obvious. But then there's this question of mission and institutional autonomy and maybe even how that starts to play into tenure and things of that nature. What's your take on these different factors, Jeff? Do you really think institutional mission could come under question here? I mean, there are many politicians who would love to blow up the tenure system, for example, in Florida and elsewhere, I suspect.

Yeah, the institutional autonomy is a. Is a really interesting point, and I don't think either of us are Supreme Court experts, nor are we lawyers, but I know know that lawyers are always scouring decisions for precedents that they can use elsewhere. And I think in general, right now we're at a moment where the pendulum seems to be swinging against institutional autonomy on a lot of fronts. And, and what's interesting to me, after covering higher ed for more than 25 years, is it's. It's really a bipartisan effort, which is if I'm running a college or university, it's something I think I would be concerned about right now. We know public confidence is sinking in higher ed, and there's a sense that colleges just can't be trusted to do anything. And it starts with admissions. Admissions is a black box that the only people who can see inside of it are the people who work in these offices, and they don't really want to talk about it very publicly. And that's, I think, where a lot of the skepticism about how race is used in admissions starts. It was interesting to me, Michael, in listening to the Supreme Court arguments in these cases, I was surprised at just how justices on both sides of the issue seem to. To really think that there was a separate admissions process for students of color, for example, and that's not how race is used, and at least how I saw it when I was reporting the book, who Gets in and why. But I can understand why most people think that that's the way it's done, because we don't explain it very well. For example, that race, along with a lot of other factors like legacy status, tends to come into the process at the very end, when you have way many more qualified applicants than you have space for in the university. And so where do you put the thumb on scale? You might put the thumb on the scale for a black student from X place, or you might put a thumb on the scale for that legacy. That's really where it comes into to play. Now that, of course, this idea that admissions is a black box really extends to the crazy pricing and financial aid policies of colleges. And then it extends, once you get on campus, to how athletics works and free speech policies and even research faculty research with foreign entities and corporations. And of course, something that we talk a lot about are the outcomes and the poor outcomes that too many people have with higher ed. And so the bottom line here is that both Republicans and Democrats just simply don't trust colleges right now. And I think one of the reasons why, and something we're going to be talking about on this podcast, the Education Department wants to expand the third party provider guidance of how colleges work with outside companies. Again, is they don't trust them. They don't trust how colleges are working. So while I don't think this decision will be that broad to include this idea of institutional autonomy under question in this case, I do think that lawyers will be looking for ways that they can perhaps use any of the decisions in this case to start to clamp down on colleges on a number of fronts, to put controls on them, given their unhappiness, that is, with higher education on so many camps, whether we are talking about legacies or whether we're talking about athletics. Because I really think that we're entering an era of more government control and oversight of higher ed, not less, no matter who is in charge in Congress, the White House or the State House.

Gosh, Jeff, it's such a good set of points you're making about the lack of trust on both sides of the aisle. And really all these policies, whether it's in Florida, whether it's at the federal level, really manifesting because of that lack of trust and sort of a sense that government needs to step in in some way, shape or form because we can't leave it to colleges. I think my quick thought on just the institutional autonomy question is that I think the court may be less likely to go there than John worries about, just because it's. It's somewhat easy to suggest that from a legal perspective anyway, your mission can't discriminate based on race because look, that's part of US Law and that's something we've worked on hard as a country to rectify. So As a result, when we talk about diversity, it can't just mean race. There's gotta be something broader there. Now, as you said, I could be wrong. I'm not a lawyer, and that's simply my gut reaction. I do think financial aid packages, recruiting, outreach and so forth will be quite impacted by this ruling, though. But I do think it raises the next question, Jeff, that you asked about, which is what else will fall off next? Will it be legacies? Athletics? Geographic diversity? Those aren't protected questions from a discrimination perspective, as is race, though. But I think they could be legislated for public institutions, maybe private ones. It's harder, but it's going to be interesting. And I guess more broadly, what seems so hard about this conversation about mission and purpose and so forth is that in. In an effort for some commentators, frankly, to fall back on and say, well, it's about merit. It should be about merit, Jeff. You know, as John correctly pointed out, Harvard could just say, we're going to fill a class of people who have 1600 SAT scores and all the valedictor, and they still couldn't do it because they're just too many of them. So they'd have to either go to a lottery system, which you've proposed in the past. And I'll say I used to be super skeptical of that idea, but I've come to think it has, you know, more intrigue behind it, or we just have to conclude what I think universities have concluded all along, which is that, quote, unquote, merit isn't as simple as a GPA or a test score. It's really about shaping the class at the end of the process, as you said. And look, a school shouldn't want to admit someone who they are not prepared to serve well because that individual can't do the work, say, and the school just doesn't have the supports to help them do it well. But that's a far cry, I think, from shaping a class with, like, a whole lot of people who theoretically can do just fine in the school. Now, I know that there are, again, commentators out there who've made arguments about how affirmative action lets in people to places like UC Berkeley who then have a significantly higher dropout rate. And I'm not advocating for that. I'm just saying above a certain minimum level that indicates you can be served well by this school. We're not doing any false favors. This conversation around merit is just more than getting the higher scores or grade on some narrow measure at some level. And frankly, success in life is much more than that as well, Jeff.

Yeah, Michael, I know from researching who gets in and why that how colleges define this idea of the worthiness of applicants tends to shift over time based on the institution's needs. You know, at the most selective colleges, where we know space cases are few and demand high, the definition of merit has changed substantially over the last half century, largely to preserve the social order or the interests of those in power, of course. And what it takes to get into top colleges is evolving once again, making it difficult for students and parents to keep up with these rules of the game. You know, for one, schools are constantly tweaking their selection process based on data that they're collecting about why undergraduates ultimately succeed on campus. And elite colleges, as we know, are also trying to recruit more lower income income students to reverse the perception that their campuses have turned into these playgrounds for the wealthy. And selective schools are also trying to avoid legal landmines, as they are right now around admissions policies that come under increased scrutiny for bias by federal officials in the courts. And, you know, those spurned teenagers out there and their parents have come to realize that this supposed meritocracy of the system is just riddled with compromises and exceptions. But you know, that term meritocracy, this word merit, was never meant to promote the supposed academic purity that we think it does. And indeed, when the term meritocracy was coined by the British sociologist Michael Young in 1958, he actually intended it pejoratively, right? His belief was that when the objective veneer of standardized testing and grades is stripped away the advantages of centuries old class based system, it just remains. But yet that term has been co opted in the world of admissions, in my opinion, by the very people he was marketing, shocking students and parents who believe that grades and test scores alone should determine who is accepted amid rising application numbers and following acceptance rates. And there's this great survey by the Pew Research center which surveyed Americans in 2019 and actually surveyed them again a couple of years later about all the admissions criteria that colleges should consider. What was interesting is grades and test scores top that list. It was far above athletic ability, race, this first generation or legacy status. But the reality, as John pointed out, of only using those two measures is simply impossible at places like Harvard and Yale and the Ivies or any of the other highly elite institutions. So think about this, because John mentioned it, because these numbers came out in the Harvard case that's before the Supreme Court now, so in the class of 2019 at Harvard. So this is now obviously a couple of Years old, because the data for this case is a couple of years old. There were 26,000 domestic applicants for admissions for that class of 2019. So these were seniors. In the class of the high school class of 2015, 8,200 of them out of 26,000 had perfect GPAs in high school, 3,500 of them had perfect SAT math scores, 2,700 of them had perfect verbal scores. But Harvard only had 1700 spots to offer that year. So again, you had way many more perfect students than you had then. You had spots. And so we tend to act as if grades and test scores are these objective measures, like an applicant's height. But we rarely stop to talk about how every college kind of uses a different ruler and every test prep company kind of gives them, sells them a step ladder through this. So we have to stop to think about how objective measures, your objective measures are different from my objective measures because it depends on what your strengths are. And everybody thinks, well, we should be using test scores if you're a good test taker, or we should be using GPA if I have a high gpa. And I think no matter what happens in the Supreme Court, we're going to continue to struggle with what really merit means. So, Michael, at the end of the day, the simple problem here is there's just not enough seats at these places. So we're either going to have to stop, stop thinking that everyone should go to the same colleges and universities or that we should stop talking about the same colleges or universities. We're going to have to increase the number of seats in these places. And we've talked about that many times before, including with your old president, Rick Levin. Right. So that's likely not going to happen. So I think we're just going to have to start to say there's more than just 10, 20 or 30 quality colleges and universities out there and start to widen or lens at here.

I want to come back to that point, Jeff, because I think it's a, it's a really important one because there's also another dynamic here at play, which is what John alluded to, which is that the public isn't all that excited about using race in admissions either, but they want diversity, as he said in that poll. Although I think it's a fair question of how people define what is diversity like. Diversity just isn't just about race. It can be intellectual diversity, for example. I think this is something we don't talk enough about, but I'm personally quite taken with the ideas of using socioeconomic status and first gen status as ways to level the playing field, if you will. But how has that perception in the public changed since 2003, when you covered the Michigan cases before the Supreme Court? Because I just don't recall what the sort of societal consensus, if you will, was around these things back then.

Well, I think that there's been a movement away from affirmative action for. For quite some time now in public perception. But what's also interesting to me, Michael, I'm just going to take this question in slightly a different way is how the perception is changing within colleges and universities, within university leadership. And I really kind of came to this when I was working on that New York piece about MIT going back to the test, because if you look at the numbers at mit, they mirror what's happening at a lot of other selective colleges. And so essentially what happened was that 20 years ago, when MIT decided that they needed to diversify their classes more, they started to accept students with wider SAT scores, meaning in their case lower SAT scores, and lower in the case of MIT, was not a 1600 but a 1450 or something like that. So it's still a high score compared to a lot of people. But most of those scores, to be honest, were among students who were Hispanic. And black students were mostly the students that they accepted during that. And then what they saw was that their retention and graduation rates among those students dropped. So what they did was tighten up their SAT scores again. And over the course of the next 10 or 15 years, their numbers of Asian students, their numbers of Hispanic students grew. But the number of black students in particular kind of stayed. Stayed flat. And while they were increased the retention and graduation rates of all of those subgroups. Again, what really happened in terms of enrollment was among black students. And that to me, is really the thing we're not talking enough about, because I know that people in higher ed are. Their biggest worry coming out of the Supreme Court case is mostly among black students, particularly black males. And how do we continue to recruit, retain and graduate black students coming out of this case? And that's something that we just don't talk about enough. I think around affirmative action, we tend to talk about students of color and the impact of these cases on them, but not necessarily the subgroups that I think a lot of colleges and universities are most worried about.

It's a good set of points, Jeff, and I'll just react to it because I think those universities and colleges need to. To worry not just about who they're letting in, but are those populations then being Successful. Right. Because they're not doing anyone any favors by taking in students, having them accumulate debt, and then not graduate or be retained. And I think colleges that are concerned about that question need to look really hard at the mirror and not just think about, gee, who are we letting in? And that's the privilege, but how do we support them regardless of where they come in, to be able to be successful here? And if they're serious, right, about these questions of racial diversity, particularly for black Americans, then I think it's something that they have to take far more seriously than particularly the selective institutions have to date. That said, I will also add that I think there's one other bigger message in all this, which is we need, I think, as a country, to become less obsessed with the most selective schools. There was this Gatecrashers podcast that, as you know, I geeked out on it, talked a lot about how Jews were excluded historically from the Ivy League. They profiled all eight Ivy League schools and the history of Jews there. And back then in many of these institutions, they had up to a 10% quota. So you had exactly 10% of Jews at all these colleges. And then once you lifted that, it's. The number soared and you had up to 25% at some schools. And now what's interesting, though, is there's been no shift around how colleges view to, you know, the Jewish population per se, but at some places, Gate Crashers was estimating that it's down to like 5%. So even lower than the quotas before. And his conclusion was, you know, Jews sort of acted like an immigrant group. They were striving all obsessed with those top schools, and now they've sort of assimilated and maybe less obsessed about just success on a very narrow metric. And this is perhaps the story of Asian Americans now, right, the immigrant population. And maybe the story, to your point, of Hispanics in our country see where it goes, but they're certainly rising as a group. And then you see this assimilation and realize that there are other ways perhaps to experience success that go beyond just climbing the ladder and getting the status of the the name on your diploma. And I think you and I both see how the conversation around the importance of college has changed in places like Lexington and Chevy Chase, where we both live. So I guess my other hope out of this, besides the one I just mentioned on Better Search, serving students from regardless of where they start, is that we as a society become a little less obsessed with those brand names and move from there. But we'll leave it there for now. Really interesting episode. Huge thank you to John Alger, president, James Madison University, for helping not only us revisit the past, but think about the big issues that maybe haven't gotten a lot of talk about how decisions from the Supreme Court will impact the future. So a thank you to him and a thank you to all of you for listening. We'll see you next time.