Richard Sander is Jesse Dukeminier Professor at UCLA Law School. AB Harvard, JD, PhD (Economics) Northwestern.

Steve and Richard discuss the recent Supreme Court ruling in Students For Fair Admissions vs Harvard and UNC.

Sander has studied the structure and effects of law school admissions policies. He coined the term "Mismatch" to describe negative consequences resulting from large admissions preferences.

0:00 Introduction
1:09 Richard Sander’s initial reaction to the Supreme Court ruling
4:03 How data influenced the court’s decision
7:58 Overview of the court’s ruling
11:27 Carve outs in the court’s ruling
16:59 The litigation landscape
21:25 Workarounds to race-blind admissions and the UC system
32:22 Remedies: What will happen with Harvard and UNC now?
38:02 The landscape of college admissions
44:47 Effects of the Supreme Court ruling beyond higher education


SCOTUS decision on Affirmative Action:

Richard Sander’s amicus brief:

Richard Sander on SCOTUS Oral Arguments: Affirmative Action and Discrimination against Asian Americans at Harvard and UNC:

Richard Sander: Affirmative Action, Mismatch Theory, and Academic Freedom:

Music used with permission from Blade Runner Blues Livestream improvisation by State Azure.


Steve Hsu is Professor of Theoretical Physics and of Computational Mathematics, Science, and Engineering at Michigan State University. Previously, he was Senior Vice President for Research and Innovation at MSU and Director of the Institute of Theoretical Science at the University of Oregon. Hsu is a startup founder (, SafeWeb, Genomic Prediction) and advisor to venture capital and other investment firms. He was educated at Caltech and Berkeley, was a Harvard Junior Fellow, and has held faculty positions at Yale, the University of Oregon, and MSU.

Creators & Guests

Stephen Hsu
Steve Hsu is Professor of Theoretical Physics and of Computational Mathematics, Science, and Engineering at Michigan State University.

What is Manifold?

Steve Hsu is Professor of Theoretical Physics and Computational Mathematics, Science, and Engineering at Michigan State University. Join him for wide-ranging conversations with leading writers, scientists, technologists, academics, entrepreneurs, investors, and more.

Steve Hsu: Welcome to Manifold. My guest today is Richard Sander, the Jesse Dukeminier Professor of Law at UCLA and expert on the phenomenon of mismatch. In higher education, you may recall that I discussed mismatch with Richard some time ago in our first conversation on Manifold. In our second conversation, we discussed the oral arguments in the students for fair admissions versus the Harvard and UNC case that was before the Supreme Court.

And yesterday, the Supreme Court issued a decision in those cases, which we are now going to discuss. So Richard, thank you very much for joining me again.

Richard Sander: Good to see you, Steve.

Steve Hsu: Before we get into the egghead stuff and the minutiae of the law and the constitution and how this will impact the future of American higher education and beyond, I just want to just take a step back and ask about, as they say these days, the feels. So how do you feel about this decision and how did you feel when you first heard about it?

Richard Sander: Relief. You know, I gave Edward Blum a lot of advice when he was thinking about bringing additional lawsuits. so I have been aware that this was developing since 2013, 10 years ago. I helped prepare some of the materials used in the initial complaint in 2014. I was in the courtroom in 2018 when, during parts of the trial.

So I've worked with this a long time. And it was, it was great to see the Supreme Court nerve itself to do something that it hadn't quite been able to do in the Fischer decisions and the Grutter decision. So I was relieved that they fit the bullet and took the step.

Steve Hsu: And would you say, how much of that is just the addition of the new, I guess Trump appointed three justices, is that right? Is the momentum shift here mainly just the flipping of previously more left of center justices to right of center justices?

Richard Sander: Well, not entirely. So, in both Fischer and Grutter. There was some expectation that racial preferences would be banned, but in both of those cases, Republican appointed judges sort of went through a conversion, ending up signing with more liberal justices in both cases. In fact, that even happened with Blanket.

Justice Powell was also a Republican appointed. So this has been an issue where moderate justices, I think, have really struggled. And one sign that that was true, even in this decision, is that the Supreme Court did not actually overrule those earlier precedents. They basically distinguished them and sort of said, this has been a failed experiment.

so, to sort of answer the other part of your question, what is playing here besides politics is that many of the, Hopes and expectations that moderate justices had for affirmative action have just been disappointed. There's just a much broader intellectual consensus now, I think, that affirmative action failed, specifically that racial preferences failed.

Steve Hsu: So this case was filed, I believe, in 2014. And as part of it, obviously, you know, through discovery, I guess the plaintiffs were granted access to a lot of data. And would you say it was that data that really convinced the court to update its priors on whether the experiment was a success?

Richard Sander: Well, I think that helped. The court's decision was less data driven than, than, than I had hoped, or that, friend Peter Acidiacano, the plaintiff's expert, had hoped. There wasn't a lot of discussion about specific statistical findings. In fact, that was the case. So, more important would be the fact that Harvard and UNC both sort of said, we need more time to make racial preferences work, but we can't give you an endpoint.

the court really emphasized the necessity to do that. In 2003, Mrs. O'Connor had predicted that preferences would no longer be necessary by 2028. and she also laid down various other restrictions and expressed concern about the possibility that preferences could turn into discrimination against other groups.

And what we saw in these cases were all those concerns kind of coming to life. There was no sign in the arguments presented by either university that they even had a timetable for getting rid of preferences. And as you know, there was lots of evidence that Asian Americans were being disfavored by both Harvard and UNC, even more than whites.

and... There was very little effort by the universities to articulate specific goals that they thought were being achieved by provinces. It just came back to very, kind of, broad rhetoric about diversity. And, you know, I think it made it easy for the court to say, This is just going nowhere. We've been doing this for 50 years, and you're making the same arguments about, you know, giving us more time that you were making in the 1970s.

Steve Hsu: Right. So it was kind of a updating of priors over a long period of time and realizing that they were not close to solving the problem.

Richard Sander: Right. So, in 2003, Justice O'Connor was the swing vote for the liberal decision, and something that really influenced her, I think, was that, the military filed a brief, and they said, we've been using affirmative action, we've made real progress, we've tangibly changed the shape of the officer corps. in the U.

S. military. So that's a real achievement, and that's a reason to keep preferences. And my guess is that O'Connor thought, well, maybe the universities will get to that same place, too. But, you know, the years since have just shown all sorts of reasons to think that, racial preferences aren't working.

Some of the ones that I've articulated, some of the ones that came out of the cases,

The anti Asian American convention was certainly very important. But a significant thing to see is the way this decision was written, by not overruling. The court actually said that preferences by military academies could still be permissible. In fact, you know, the decision, I think, can be read to say that any institution that can come up with a compelling argument for, for carve outs could still use racial preferences.

They just can't use the rationales that the university is using.

Steve Hsu: Got it. Since you're starting to discuss the details of the ruling, would you mind just giving us a kind of overview of what, the majority decision actually, concluded?

Richard Sander: The key point is that the court found, Racial preferences are practiced by Harvard and UNC to violate the 14th Amendment. They said that in general, the 14th Amendment prohibits state actors or recipients of state assistance, like Harvard, from using race, racial classifications. They gave lots of examples of racial classifications that have been struck down.

They said we've carved down in Bakke a narrow exception for universities to do this in particular ways, and we reaffirmed that in

But there was a lot of evidence in this case, and a lot of evidence from broader practices of racial preferences in contemporary America, that those exceptions have proved unworkable. That you can't actually get universities to articulate compelling reasons to have more diverse classes. that justify using race in a very ad hoc way.

They found that Harvard and UNC were, were basically just using racial goals and saying, we want our classes to look like the same racial composition as our applicant pool. And we're going to use whatever size preferences we need to get to that. That's the sort of thing that earlier justices in Fisher and Grutter said you can't do.

so essentially the court was saying, Racial preferences in American higher education no longer deserve a special carve out.

Steve Hsu: And would you say basing it in the Fourteenth Amendment is a particularly powerful way to, in effect eliminate affirmative action?

Richard Sander: Yeah, I had argued, and I probably mentioned when we spoke in November, that a more modest way of reaching the same goal would be to find that racial preferences violate the Civil Rights Act of 1960. In other words, Congress in 1964 banned a variety of types of discrimination. And one part of the law they passed, called Title VI, applied to public education and private education to the extent that it was funded by the government.

If the court had gone with that Title VI approach, that would have been more modest in the sense that it would have said, if Congress wants to change the law, they can change the law. it's just a piece of legislation and Congress could pass a new piece of legislation. It would still be pretty dramatic because it's unlikely that, that a, Why the Congress is going to, you know, it's got to pass a new form of the bill.

But by basing the decision on the 14th Amendment, the court said, Congress cannot change this, even if Congress wanted to use racial

preferences. So that part of the decision is free.

Steve Hsu: So in, in the majority, decision, I believe they specifically carved out, and I'll read the language to you, I'm sure you're familiar with it, but I'll just read it for the listeners. This was item F in the majority opinion. At the same time, nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life.

So long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual's identity. It's not challenges, best skills built or lessons learned, but the color of their skin, this nation's constitutional history does not tolerate that choice.

So, my reading of that is that one can no longer simply grant the preference based on ancestry or race, but one could still make room for a very specific one. Part of the application, perhaps the personal essay, which shows that a particular individual overcame barriers to their earlier education or life success . Do you want to comment on that?

Richard Sander: Yes, that's clearly the most important language in my opinion. and it's language that's certainly going to be litigated in future cases. It's important because... If you didn't have some statement like that, then it could mean that universities could run into trouble with any sort of characteristic of an applicant they took into account that would have a disproportionate effect across racial lines.

So even if they wanted to take into account, you know, whether your parents went to college or whether your income was low or high, those factors could become constitutionally suspect if they had a close correlation with race. What the court is saying in this language, I think, is that as long as you can articulate a goal that's independent of racial diversity and show that you are applying this standard that helps you get to that goal in a way that is even handed across racial lines, then you can use that characteristic.

Even if, in the case of an essay, it involves a reference to race. So, to be concrete, let's say that a university says, we want people, we want students who are going to have leadership potential. We want them to demonstrate leadership potential in their application. So, if I write an essay and say, well, I became passionate about discrimination in my school.

I'm black and I organized a civil rights group at demonstrations and we got the school to change policy acts. That's all fine. As long as it would be equally applied, equally acceptable for a white student or an Asian American student to say, I became passionate about homelessness, and so I organized my classmates to set up a soup kitchen, and so on and so forth.

As long as you apply those criteria in a way that wasn't driven by race, referenced race is okay. Does that make sense?

Steve Hsu: Yes, absolutely. When I tweeted about this, it's funny that we refer to Twitter now as, you know, the place where intellectual conversations happen but I tweeted about this yesterday and one of the people who followed me immediately tweeted back saying That clause that I just read, is actually a loophole.

And what is going to happen is that Harvard and UCLA are going to coach, say black applicants or, or guidance counselors, writing for black applicants to merely rehearse some standard trope about how, because they're black, they've overcome a lot, et cetera, et cetera, and thereby through the backdoor smuggling, smuggle in a boost.

in the admissions ratings that the Harvard admissions office or UCLA admissions office would give to that candidate. So that's the most probably the most cynical read of that, of that clause that I've heard. I'm curious what you think about that.

Richard Sander: Yeah, I don't think it's cynical. I think it's accurate.

I mean, there's lots of that already happening in the UC system in California, which, as you know, has been under a racial preference ban for 25 years. UCLA even hired a huge cadre of African American applicant readers to sort of, turn on their racial radar and try to find clues as to the racial identity of applicants in their essays.

so it's definitely going to happen, and that's why I say it's certain to be litigated, because the next challenge, I think, will be a lawsuit against a university which is producing results that don't reflect sort of the academic composition of the applicant pool, and they'll put a university to the test and say, can you prove that you are not using this as a, as a go around, but you're actually applying this, this leadership standard or whatever.

Steve Hsu: So let me, I want to talk more about, you know, what you think the litigation landscape will look like in

Chief Justice Roberts opinion regarding this point. And so let me just read that and then we can discuss how we think the, the, the weaseling, the backdoor weaseling by the universities will work and the legal challenges to it. So this is Robert's, he writes, but despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today, parentheses.

A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion. What cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. And the prohibition against racial discrimination is leveled at the thing, not the name.

That strikes me as a very clear statement. He doesn't think that this sort of backdoor method should be allowed to happen. maybe you can react to that.

Richard Sander: Well, it's a clear statement and it's great language. And Roberts wrote a really well crafted opinion.

It's very hard to implement that language. You know, if a school is...

favoring students who bring up racial injustice in their essays. It's very challenging to show that that was done for anybody's reasons. Some university presidents have given litigators a head start because they've issued statements like, irrespective of what the Supreme Court says, we're going to maintain our diversity levels, So that's kind of prima facie evidence that they're going to cheat.

But, in general, it's going to be very, very challenging to establish this. And, you know, part of the challenge will be that when you file a lawsuit, before you're even really allowed to discover, you've got to withstand a motion to dismiss. You've got to come up with some preliminary evidence that shows that the university is playing games.

That's going to be very hard. Very hard to find a planet. You know, to find an 18 year old who's willing to, sort of go down in infamy as someone challenging a new generation of racial preference. So... I admire Robert's language, but it's going to be quite difficult to actually...

Steve Hsu: Right, I believe there was actually a message sent to members of the Harvard community and signed by the president, the current president, and the incoming president, which more or less said, we're going to use this.

I mean, they literally cite that language in the decision saying, we're going to use that. to, to preserve quote diversity. And so go ahead.

Richard Sander: Well, I've been thinking about this a lot, even before the decision. And, and, I'm working with some folks to try to develop a lot of legislation, but I would really like to see it happen for state legislators.

And act rules that require universities to first be transparent about their admissions. In other words, provide data on their admissions process. Second, to clearly articulate what goals they're trying to foster. And third, do sufficient tracking to show that Their admissions criteria actually help achieve those goals.

If you could get even a few states to do that, that would, that would give us sort of, a gold plated standard of, here's what race neutrality looks like. And that would then make it easier to show and get through the courthouse door and say, this other university clearly isn't doing something like that.

They clearly could do something like that. So, let us look at this.

Steve Hsu: So I guess if we look at California as a specific case, there was, many years ago, Prop 209 was passed, which prohibits, well, discrimination on the basis of race, but affirmative action, I think in particular. And then that proposition was defended in 2020. Proposition 16, which was meant to repeal 209, was defeated at the ballot box.

But my understanding of the history is that initially, race blind admissions was implemented broadly through the UC system, but then gradually over time they've developed, quote, workarounds. And, do you think something like that could happen nationally in response to this? SCOTUS ruling?

Richard Sander: Absolutely. So, there are two different things going on. One is that it was harder for UC to be race neutral than it would be for colleges nationally to do it now. Because elite UCs, like UCLA and Berkeley and UC San Diego, were and are competing against, the whole national panoply of schools.

So, if UCLA went race blind and they, and they made an offer to strong blacks in the African pool, those blacks would be getting more generous offers from other elite schools. They'd be getting offers from Harvard, Yale, and Stanford. It would probably include a lot of scholarship aid. so you'd have a race wide regime competing with a race conscious regime.

So it'd be very, very hard for those schools to be competitive. It'd be very costly for them in terms of maintaining diversity because the good students who academically qualify for those schools are getting lured away by more humans. Does that make sense to some of them?

Steve Hsu: Yeah, absolutely. I think that's what happened. So,

Richard Sander: Yeah. So today, The potential is there for schools to have a much easier time of it. They can be race neutral, and if they expand their outreach mechanisms, they dig further into the pool of qualified applicants. They could probably still do a pretty good job. Black and Hispanic levels might fall some, but they wouldn't fall dramatically.

so, that's an argument for why there could be a good scenario where you have broad compliance. And, and, and, you know, most schools made a reasonable good faith effort. But the bad story is that you now have this UC example that's occurred over the last 10 to 15 years in various campuses.

where cheating has become rampant. And no one has brought a lawsuit against UC to, you know, take that down. So, colleges across the country, I think, are more or less aware that UC has been doing this. And they're thinking, well, if, if UCLA and Berkeley got away with it, then why can't we? So, you have both those forces at work.

There's the fact that the playing field has now been nationally leveled. But, on the other hand, you have this successful example of cheating, not only by UC, but also University of Michigan has flagrantly violated its state law against using racial profiling. so, both dynamics are going to be at work.

Steve Hsu: does the existence now of this SCOTUS ruling make it easier to bring an action against the UC system?

Richard Sander: Yes. One reason why no action was brought against UC is because By the early 2000s, the California Supreme Court had become very liberal. It was pretty politically balanced in the 1990s. You had, generally, Democratic legislature and Republican governors. But, over the last 20 years, it's become one of the most liberal courts in the country.

So, lawyers who considered bringing suits against the UC felt that even if they could prove their case in a court, the California Supreme Court would find some way to, sort of, reinterpret Prop 209. So the fact that you can now bring a federal action, makes it a lot easier to bring an enforcement action.

Steve Hsu: Yes, that seems like an important change. just to clarify the phenomenology, like what's actually happening. My understanding 3 or

4 percent black. So... They haven't fully worked around the law, have they? I mean, I mean, it's still, it's still a much smaller percentage than they would like. Is that correct?

Richard Sander: Yes, that's true. but,

Well, yeah, I'll say a couple things. One is that Berkeley is cheating much less than UCLA is, and much less than many of the UC campuses. So Berkeley has, has still maintained a significant degree of race control. However, the 3. 4% is, is a, is a bigger number than you might think because the Black population in California has been declining.

Blacks only made up about 6. 4% of all high school graduates in recent years. And, and, and again, Berkeley is competing with, you know, schools that have been using strong racial preferences. In Particular, Stanford is going to be a big competitor to Berkeley. And they've got it, they've been able to use racial preferences.

So the 3. 4% still reflects significant racial preferences. The other thing to keep in mind though, there have been many news articles sort of decrying how tough race neutrality is going to be and how Berkeley and UCLA are experiencing these terrible declines in minority enrollments. That story is really exaggerated because it ignores the fact that both schools have expanded their transfer programs, and both schools have dramatically improved their graduation rates.

So at Berkeley and UCLA, if you, if you put them together, many, many more Black and Hispanic graduates than they did before Prop 209. So by, you know, adding in the transcript factor, adding in the graduation factor, you get a radically different picture than if you just look at freshmen.

Steve Hsu: You know, I'm glad you clarified that because as somebody who actually follows this business, even at a wonky statistical level, I was not actually aware of that fact.

Richard Sander: You know, I spent a lot of time with, actually, three different New York Times reporters, and You know, went through lots of statistical discussions with them, and they ended up reporting that quite well. But even the Wall Street Journal yesterday, well, I guess this morning, had an article that completely misrepresented what happened at UC after Prop 209.

Very, very common. And it's a line that UC has pushed vigorously. They've, they've, throughout this Prop 209 era have been determined to present it as a catastrophe, even though it's abundantly clear in A dozen different ways that Blacks and Hispanics have, have done extremely well in the post 2009 era.

Steve Hsu: You know, I just, focusing narrowly for a moment on your own work on mismatch theory, it would seem to me that if you had full access to all the post Prop 209 data, I guess before and after, you could really demonstrate, very solidly that your theory is correct, right? Because you have scenarios where.

Lots of academically underqualified kids were admitted and didn't do well in the actual undergraduate program or had to switch to easier majors. And then in the post 209 era, when compliance was good with the law, then you had well matched Kids who did, you know, as well as the white or Asian kids on their campuses.

I mean, it just seems like if you had full access to the data, your theory about what is actually happening would be vindicated very strongly.

Richard Sander: Yeah, and, and we, we probably talked about some of this story in, in one of your earlier podcasts, but, but rough, you know, quickly, I did get decent data in 2008 from, from the UC Office of the President, and I shared that widely with academics, and several articles appeared in, in the 2010s. I demonstrated this.

The American Economic Review had a flagship article showing how science mismatch had dropped significantly at UC after Prop 209, and the number of black and Hispanic science graduates went up dramatically. So yes, we were able to demonstrate the mismatch effect strongly. But then UC completely clamped down.

Data access. They refused to let us do further updates, and the data they gave us, understated the mismatch effect because it was not as granular as one would really like. As you know, the less granular data is, the harder it is to show effects that actually exist. Then you see, went even further, and they gave the dream data, the really good data, to a young graduate student economist named Zachary Bleemer, who's now an assistant professor at Harvard.

And, Bleemer then came out with a couple of very misleading articles, that seemed to show mismatch was not as significant as we had argued. When he released the data, he said he was bound by contract not to share his data with anyone. So, you know, you've got this very aggressive propaganda effort by UC to, you know, try to kill the, kill the real story.

Steve Hsu: Yeah. Thanks for reminding me of that. I remember you went through this with me before I had forgotten about the bleemer. That makes me want to cry. but okay. So let me, let me turn to something else. So the actual defendants in these two cases, Harvard and UNC. What will happen now? like, will the federal judges that were involved at an earlier stage oversee the remedy?

How, how will, what next will happen at those two institutions?

Richard Sander: Yes, both cases will go into a remedy phase, and SFFA's legal team has been working on what their strategy should be. I'm pretty sure that they will be stuck with the two judges they had before, which is unfortunate because both of those judges were, I think, strongly biased in favor of the universities.

They'll, they'll try to, you know, make their best out of that. what's pretty clear, though, I think, and what will be hard for the judges to resist, is at least having a, a significant level of transparency, so that SFFA will be able to have the kind of data access that they had during the litigation, to see what happens in the initial years afterwards.

And there will probably be some sort of discussion about exactly how these essays can be used.

Steve Hsu: How, this is kind of a in the weeds question, but I just personally curious when the Supreme Court, you know, comes back with a very strong decision like this, Do those justices ever kind of look in and see what the appellate judge is actually doing? The one that lost, you know, the one that's overseeing the case.

I mean, could that person be slapped down if, in some way, if, if she is, is not actually enforcing the ruling properly?

Richard Sander: Well, the... Lower courts have effectively been chastised by this decision. and they know that if they, if they don't try to implement it in good faith, SFFA will be able to go back to the Supreme court,

Steve Hsu: I see. So they have a, they have a sort of quick path to go back to the Supreme Court. Would it take another nine years?

Richard Sander: You know, it'll take long enough, but, it, you know, not nine years, and, and, and there'll be a fair amount of confidence with a six, three decision that the Supreme Court would stick to its guns. And Fisher, you had a somewhat similar situation. Fisher 1 remanded the case back to the lower courts to look into whether they had actually shown benefits from diversity would be tied to particular, and the Fifth Circuit sort of, you know, did a very shallow job.

It was taken back up by the Supreme Court. They granted cert, but then Kennedy kind of backed off from its earlier decision in Fisher 2. And gave the university a pass. So in that case you had, essentially, the final lower court that, that took a gamble the Supreme Court wouldn't change its mind and it

Steve Hsu: So in this case, I mean, I think the judge in Boston was named Burroughs. You know, if I had to guess and model her psychology from afar, I would guess that she just like the Harvard administrators thinks this is some terrible perversion of American jurisprudence by a conservative, terrible Supreme Court, and therefore she probably has no moral compunction against it.

Doing everything she can to aid Harvard, in the aftermath of this ruling. Am I too cynical?

Richard Sander: did. I don't know. I,

I thought Judge Burroughs' opinion was pretty awful and ignored mountains of empirical evidence that SFA experts very professionally put together. But, you know, she did make decisions during the discovery process that were, that were, Very reasonable decisions. She gave the plaintiffs a lot of access.

You know, when you go through a trial like that, there are many, many decision points for the judge. And, Burroughs did not try to shut the discovery process down. I think she was, I think she was fair during that process. So, you know, there are ideologies and there are also traditional norms. And you can't really predict how, how that's going to play out in the individual judge's mind.

I, I, in other words, I wouldn't say that Burroughs is going to be determined to undermine the decision. GMAIL, you

Now, I believe in preferences and I'm going to write a decision that eloquently justifies them, but if the court overrules me, I'll try to implement that in good faith. We'll have to see.

Steve Hsu: Yeah, that's reassuring. Emphasis here being on judicial norms holding sway over personal ideologies.

Richard Sander: You know, and they're real. I mean, you know, judges, judges have difficult jobs and, and I know a lot of judges and, I know some judges who have made outrageous decisions, but most of them, Most of them, really do try to be very professional and they try to be fair.

Steve Hsu: So let me, let me describe what I see looking closely at the current situation for college admissions. literally every school now except Sorry, every elite private school except MIT that I know of has now made the SATs optional. And even Caltech, my alma mater, which used to be very meritocratic, has actually adopted the, has actually gone to the opposite limit.

So they are telling applicants. to not report or try to report anything about their score in their application. they're very strongly warning students, not even to like to smuggle them in. Like in your essay, you could say, Oh, I was very happy that I got 16. You know, you could say that and smuggle it in, but they even tell you not to do things like that.

So possibly because traditionally the faculty at Caltech really do want students with top scores. And so maybe the administration is trying to keep that information in the process. Be that as it may, only MIT, which went through an internal study, had dropped the requirement for the scores during COVID and then realized they had consequently admitted a lot of students that were struggling at MIT.

And so they concluded after active study, they definitely needed the score. Sadly, Caltech is at the opposite limit, but basically so are all the other elite schools. And so. It seems like if I wanted to continue a de facto affirmative action policy, I would encourage all the white and Asian students, the gunners, to submit their scores so I can continue admitting, I don't require it, but I sort of, you know, I sort of spread the word that, hey, if you're white and Asian, you better have top scores or you're still not getting into Harvard.

but I don't collect scores on the people that I want to be the beneficiaries of preference. And then it just becomes much, much harder for SFFA, S F F A, sorry, to sort of demonstrate that, effectively a system of preferences is still going on, but they, they now lack the data, the school deliberately fails to collect the data that one would use to demonstrate that's going on.

maybe you could react to that.

Richard Sander: Well, I think that the next pieces that develop in this area are going to be driven to look at outcomes rather than just the admissions process. Because you're right, universities will make their admission processes more okay. But they'll still assign grades. There's been a lot of grade inflation, but I don't think, I don't think universities are quite prepared to get ready grades yet.

So if you would show that, regardless of the qualifications, you're having a huge performance gap along racial lines in your student body, then that's going to create a presumption that you're discriminating. That'll then be an effective way of shifting the burden of proof onto the university.

Say, okay, so tell us how you are arriving at this class that has these wildly, um,

Steve Hsu: I agree with your point there, but let me just mention a couple of related issues. Already in the Ivies, as you know, the average grade is close to an A. So, so, discrepancies in performance among groups might be very difficult to tease out. And also if the gunners are the ones taking the hard classes and preference admits are taking very easy classes.

you know, that effect would have to be accounted for. So you might end up back with this sort of dueling statisticians, a situation where, you know, the school's doing everything you can to make up for the plaintiff's statistician. so I, I, I'm still worried. It seems like the policies that these schools are implementing are almost deliberately in advance of this decision, you know, trying to pave the way for their response.

Richard Sander: Yeah, and I don't want to imply that I'm not worried. there is a, there's a real possibility, maybe even a probability, that, that, the things would get worse.

you know, schools will just move away from performance measures, move away from qualifications, if they find they're losing too many strong students to competing schools, there's still, you know, there's still strong incentives to.

Preserve the willingness of their student bodies. And, they can't have different race based rules for who submits scores and who doesn't. so, that's all to say, it's going to be a complex game of chess.

Steve Hsu: Yeah, I agree. I think the most interesting thing will be which, whether all the elite universities, maybe with the exception of schools like MIT, Sadly, not Caltech, you know, act as a block and basically adopt all the same kinds of strategies or whether somebody, maybe Chicago would be like this, we'll break out and, you know, comply in spirit with this decision.

Not, not just, with the letter.

Richard Sander: So, let me go back to my earlier point. is that if you get some state legislatures to pass laws that really mandated transparency and that mandated that the universities articulate their goals and show quantitatively how their admissions criteria fulfill those goals. Alternatives. You would really have a model.

You'd have, you know, some good state universities modeling, here's how to do this fairly, and that would create a very helpful competitive pressure, helpful political pressure at helpful litigation pressure. So some kind of path like that I think is, is, you know, maybe the most helpful one.

Getting real reform in higher education.

Steve Hsu: Yeah, I definitely feel that, working on model legislation, for states that want to implement this. I think it's very valuable.

Let me ask you just one more question and I'll let you go. I appreciate your time. Can you just talk a little bit about the effects of this ruling beyond higher education? So on or or or beyond admissions. So maybe faculty hiring or maybe even hiring at private companies, things like that. Do you see any downstream consequences?

Richard Sander: I spoke to a reporter a few hours ago about the report of California's reparation committee. You may have heard that yesterday was not just the Supreme Court opinion, but it was also the delivery of the final report of the California reparations group, appointed by Governor Newsom, that is recommending something like 880 billion in reparations for blacks in California.

and the chair of that commission. He had a press conference and said, you know, I'm disappointed in the Supreme Court's decision, but fortunately nothing that they said is going to apply to us because we're basing our reparations on life experiences. Good.

I think that's not going to quite work. Any sort of reparations effort is, is, going to be challenged based on this court decision. And what I've read of the reparations commission, they did not do a good job of showing that individual life experiences in the 21st century were directly and immutably shaped by the experience of their 19th century ancestors.

I think it's going to have a chilling effect upon all sorts of price based equity efforts that have proliferated in the West.

Steve Hsu: Great. Well, again, I appreciate your time. I know it's late in France and I hope that you can enjoy the rest of your vacation. Although I'm sure there are plenty of other reporters that would like to talk to you. So, uh,

Richard Sander: Talking to you is uniquely valuable, Steve. Good luck. I always learn a lot from our conversations.

Steve Hsu: Well, likewise, I appreciate that. That's, that's very kind of you. My guest today was Rick Sander. Perhaps we'll take this topic up again in the future. Thanks again, Rick.

Richard Sander: Take care.

Steve Hsu: Cheers.

Richard Sander: Cheers.