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