Friday, August 21, 2020
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Friday, August 21, 2020. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Discrimination Case Against Yale Raises Huge Questions about Affirmative Action in Higher Education
The issue of affirmative action in university admissions is back on the nation's front burner, largely in recent days because the Justice Department has accused Yale University of acting unconstitutionally in its admissions processes. Now, as The New York Times reported just days ago, "The Justice Department accused Yale university of violating federal civil rights law by discriminating against Asian American and white applicants, and escalation of the Trump administration's moves against race-based admissions policies at elite universities." The next sentence, "The charge coming after a two-year investigation is the administration's second confrontation with an Ivy League school two years ago. It publicly backed Asian American students who accused Harvard in a lawsuit of systematically discriminating against them."
There's a huge and very important background here, but at least in the foreground politically, one thing needs to be cleared up. Yes, the Trump administration's Justice Department has entered into this situation by making the accusations against Yale. And yes, the Trump administration entered on the side of Asian American plaintiffs in the case against Harvard. But that case is now on appeal. And the point is, these cases would have emerged with or without any particular presidential administration. These are real plaintiffs, and behind it is a very real and ongoing controversy about affirmative action, race, equality, and justice in the United States.
In order to understand and frame the issue of affirmative action in the United States, we have to go back to the late 1950s, the end of Jim Crow legal segregation in the United States, and in particular in educational institutions after the Brown v. Board of Education decision. And then the question arose, what about past inequalities and equities? What is the government's responsibility, or major institutions' responsibility, to try to remedy the effects of that past discrimination? Well, affirmative action became the name for the programs that were accepted then that meant that government, employers, institutions should try to remedy past inequalities by giving particular advantage now to those who had been disadvantaged in the past.
But of course, the only way to do that is not to look at individuals, but rather as groups. And once again, this is a form of identity politics. It was inevitable that if you're going to have affirmative action, you can't really go back a matter of decades and give someone a job who was denied a job back then. You can't go back a half-century and give someone admission to a university who was denied that admission a half-century ago. Instead, you have to say, we now have groups, and these groups are defined, yes, by gender in one sense, but then also by race and ethnicity in another sense. And so, you officially take those identifiers into account. You take them into account by what you would call affirmative action. It's an affirmative action. It is an intentional action to try to bring about some remedy to a past inequity.
Now, Americans generally don't like the idea of affirmative action. If you put it in this sense, they don't like the idea of discriminating with the issue of race as a matter of national or institutional policy. They don't think that's right. On the other hand, it was also clear that by the time you get to the early '60s, and the first federal government affirmative action policies go back to 1961 and 1965. If you look at the sentiment then on the part of the American people, it seems to be, okay, there might well be a temporary period of some kind of targeted affirmative action, but it needs to be temporary, it needs to be targeted, and it needs to work.
The irony and affirmative action, of course, came to light when it was considered that in the name of ending discrimination on the basis of race, there would be a new form of discriminating on the basis of race. The idea was to correct a previous injustice, but to do so on the basis of group identity. But once again, both in just fundamental moral reality as well as public perception, the fact is that how one frames this issue has a lot to do with whether you think it sounds right or wrong, fair or unfair, just or unjust. If you say should past inequities be in some way remedied, most people would say, "Well, yes, if there's a way to do that, you should do that." And then we have to understand that there is inevitably a positive and a negative when it comes to this kind of program. What do I mean? Well, it's simply a matter of math.
If, say, for example, Yale University has 1,000 admission slots for its freshmen class, and if you're going to say to try to remedy past injustice we are going to give advantage to members of this group in gaining at least a certain number or percentage, or at least a targeted goal of seats within that 1,000 member class, then the other people in the other groups are thus equally disadvantaged. And then the situation gets really complicated once you understand that the United States passed civil rights acts that bar discrimination on the basis of race. So, which is it? Yes or no, right or wrong? Anyway you look at it, a form of affirmative action does essentially come down to discrimination on the basis of race or some other kind of identity, group identity. One way or another, that's what it comes down to. Otherwise, it doesn't make any sense at all.
But again, if you go back to the beginnings of affirmative action, it was clear that in the United States, even though there's more than an irony here, the American people were willing to say, "Yes, let's do it so long as it's temporary and targeted and effective." But all of that began to fall apart within less than two decades of affirmative action, and especially even a shorter amount of time when you consider the issue of college admissions.
In 1978, the Supreme Court of the United States handed down a decision in the case well known as Bakke. It had to do with a white man who had applied to the medical school at the University of California Davis and was twice denied admission even though he had scores that were better than some of the other students who were admitted, the other students admitted under affirmative action. The Supreme Court ruled that it was wrong and unconstitutional to base the admission upon the racial criteria. But then at the very same time, the Supreme Court left the door for answering the question as to whether or not race could be considered in any way in the formation of a decision such as admission to a medical school or a college, or for that matter, by extension, getting a job and advancing in a job, all part of the same equation.
In a case concerning the University of Michigan in 2003, the Supreme Court basically decided that it again was wrong based upon the constitution, the Civil Rights Act, and the Bakke decision, to make admissions decisions on the basis of race. But at the same time, in its decision on the case known as Bollinger, the Supreme Court said that race could function in some way within a larger formula that was designed to admit the right class to the University of Michigan. You then have to fast forward to 2013, just one decade later, when the school at the center of controversy was the University of Texas at Austin. And once again, the Supreme Court said, yes, race can be a consideration in a larger pattern of admissions policies.
The current cases concerning Harvard and Yale, two of the biggest names in the Ivy league, two of the oldest and most prestigious universities in the United States, both of them come down to the fact that what wasn't even on the screen or the moral consciousness of Congress or the courts or the American people back in the late '50s and the early 1960s, or even by the time really of the Bakke decision in 1978, is now a major issue, and that is overt discrimination against Asian American applicants.
Just to lay the facts out in order for us to understand them here, you have many prestigious universities that effectively, though they will not admit it, have a quota of how many Asian American applicants they will admit. And the background to that is the fact that there is a disproportionate number of extremely highly qualified Asian American applicants. At the same time, as you look at other racial and ethnic groups in the United States, the picture is sometimes exactly the opposite. It is hard to come up with enough of those who will qualify by say metric terms or objective tests, the ACT, SAT, and other kinds of scores, in order to be competitive in the admissions process.
So, the University of Texas in 2013, like the University of Michigan in 2003, had argued that in order to assure diversity in its student body, it would have to take race into account in some way. But the big problem is that once you say you're going to take race into account, you've taken race into account, and then you're on the line for the account of exactly how you've taken race into account. And if you're going to have preferences, and by the way, it makes no sense if you don't, then a group left out of the preferences has cause to say that they have been discriminated against. And that's exactly why you see so many representing Asian American students who are now making these charges against universities like Harvard and Yale, or for that matter, universities in California and elsewhere.
The New York times report included this data. "The Justice Department accused Yale of violating federal civil rights law by using race and ethnicity as a determining factor when sifting through the roughly 35,000 applications it reviews each year to admit about 2,300 students. About half of the students in last year’s freshman class identified themselves as white and a quarter as Asian-American, with African-American students making up 12 percent and Latino students 15 percent." Making the case for the Justice Department, Eric Dreiband, who's the Assistant Attorney General for the Civil Rights Division, said plainly, "There is no such thing as a nice form of race discrimination."
There's another very interesting legal aspect behind these particular cases, and that is the fact that there is largely a hidden process. It's a very private process undertaken by universities like the University of Michigan, the University of Texas, or like Harvard and Yale, in their admissions policies. Some of it, we have to admit, turns out to be subjective, and that means the university isn't really saying that it's operating on the basis of absolutely clear and publicly accessible criteria. Instead, it's a formula which the universities admit is designed to produce an entering class that represents the vision of diversity that they want for their university.
Elite College Admissions: The Supreme Court Can’t Avoid the Central Questions Forever
Now, Christians thinking about this have to understand that when we're talking about justice and equity, we really are talking about very difficult questions in a very complex world, more importantly, a fallen world. And one of the sad things we have to recognize is that once we do take any kind of group identity, once we do go into the entire logic of identity politics and formulations, then we are actually in some way making race or ethnicity a determinative category. The Current Chief Justice of the United States, John G. Roberts, Jr., in speaking to this issue has created something of a formula that ought to at least be taken with great moral seriousness. The Chief Justice says this, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." You could put either a period or an exclamation mark at the end of that sentence.
Politically, once again, Americans tend to be quite tolerant of affirmative action so long as it looks only at the positive side, not at the negative side. But to give a preference to anyone means giving less of a preference to someone else. And when you look at it that way, the question of justice becomes a much different question. Are you looking at it over a period of time as if you can remedy it over centuries or decades, or are you looking at it on the basis of individuals? Because if you're looking at it and on the basis of individuals, it certainly would not be fair to deny a qualified person admission in order to admit someone else who had less qualification. But of course, in the moral context, nothing's ever quite that easy.
But the point articulated by the Attorney General is basically this. If you say you don't want to discriminate on the basis of race, and then for whatever reason, including remedying past injustice, you say, "But we're now going to discriminate on the basis of race." Well, the problem is, you're never going to be able to sustain an argument about how exactly in not discriminating you're going to discriminate. The U.S. Supreme Court has dealt with these questions since 1978 quite inconclusively, which is why you can count on the fact that, either from Yale or from Harvard, one of these cases is likely quickly to get before the United States Supreme Court again.
But note that when the next case reaches the Supreme Court, you can count on the fact that what would be taken into account won't just be racial and ethnic identity. Consider the LGBTQ revolution and all the identity politics and intersectionality that is now just standard fare in the American academy and on the political left. It won't just be about race and ethnicity. It's going to be about affirmative action when it comes to so-called sexual minorities, and just throw in the transgender revolution, and you understand that we are taken right back to the Chief Justice's statement. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
Is This the End of Women’s Sports? You Can Have the Transgender Revolution or Women’s Sports But You Can’t Have Both
But having mentioned the T in LGBTQ, transgender, there are some huge headline stories that demand our attention. One of these comes from the state of Idaho. The other has to do with the larger cultural context. But make no mistake, the case in Idaho is going to have national implications. An amazingly candid article that sets the issues out pretty honestly is found in yesterday's edition of The New York times is by Gillian Brassil and Jeré Longman, the headline, "Who Gets to Compete in Women's Sports." Now, as we've been talking on The Briefing, that just turns out to be perhaps the easiest way of understanding the insanity of the transgender revolution, who gets to compete in women's sports. Not just women's sports, but you have sports that have historically been designated as involving those who are biological females, previously in human experience referred to as girls and women.
The reporters tell us, "A restrictive Idaho law — temporarily blocked by a federal judge Monday night — has amplified a charged debate about who should be allowed to compete in women’s sports, as transgender athletes have become increasingly accepted on the playing field while still facing strong resistance from some competitors and lawmakers." A seemingly innocuous opening paragraph that seems to imply that there's really no big issue here, but there are still some competitors and others who haven't come to terms with the transgender revolution. But then the story says this, "While scientific and societal views of sex and gender identity have changed significantly in recent decades, a vexing question persists regarding athletes who transition from male to female: how to balance inclusivity, competitive fairness and safety."
The reporters then go on to tell us, "There are no uniform guidelines — in fact the existing rules that govern sports often conflict — to determine the eligibility of transgender women and girls (policy battles have so far primarily centered on regulating women’s sports)." And say the reporters, "There is scant research on elite transgender athletes to guide sports officials as they attempt to provide equitable access to sports while reconciling any residual physiological advantages that may carry on from puberty." That is one of the most convoluted sentences I've seen published in a major newspaper edited like The New York times in a very, very long time.
You have dependent and independent clauses and an entire paranthetical clause, and that's required by the fact that the reporters have tied themselves in a knot because our society is tying itself in a knot, so to speak, trying to figure out, as the reporters tell us, how to provide equity to access and sports while reconciling any residual physiological advantages that may carry on from puberty. And by the way, that is male puberty. That's the issue here. Right in the beginning of the article it makes clear, you don't have many controversies about those who are biologically female claiming a male identity competing in male identified sports. That's not much of a controversy and nature explains it. But nature also explains why it is such a massive controversy on the other side where you have boys and men identifying as girls and women demanding to compete as girls and as women.
When the article speaks of the residual physiological advantages that may carry on from puberty, it has to do with the fact that male puberty brings about changes, physiologically, of course biologically in terms of the skeleton, and of course, hormonally. Even changes in the heart and its ability to process oxygen that are a part of male adolescents, of male puberty. And when you have the transgender revolution and you have people claiming, even though they're biologically male, to be in their chosen gender, female, and demanding to be recognized as such. And even as, and this is really crucial from a Christian worldview perspective, sadly crucial, but it's crucial, even persons who undergo so-called sex reassignment surgery, they still have the basic physiological and skeletal reality that comes with, yes, what's called their sex at birth or their biological sex.
So, without going into detail here and being too graphic, even as you can have some parts of the body reconfigured to resemble in some way what would be the opposite biological sex from birth, the reality is, you're not going to change the basic skeletal structure, you're not going to change the DNA. No, the article began by talking about a law passed in Idaho, and that law in Idaho says that when it comes to athletics, in particular, you're talking about interscholastic competition, and in this case it would include both secondary schools and public colleges and universities, there is not to be an allowance for someone who merely identifies as female, but is biologically male, to compete against biological females or to participate in organized athletics in that fashion.
The coverage in The New York times and in The Washington Post identifies one individual at the center of this issue in Idaho, that would be Lindsay Hecox. As Roman Stubbs for The Washington Post tells us, "When she arrived at Boise State’s campus this past fall, Lindsay Hecox finally felt like herself. She had come out as a trans woman a few months earlier and was excited to begin her new life as a college freshman. She quickly made friends, formed a club and started earning the best grades of her academic career." Well, you'll understand how the pronouns are being used in that report from The Washington Post, and that same use continues. And you get the point when the Washington post tells us that Lindsay Hecox is now demanding to be able to compete as a female when it comes two athletic running competitions.
Now, the article's written in such a way that the reader is supposed to have sympathy for this individual with the fear that the individual is being discriminated against because of this law that forbids biological males from competing as females in this kind of competition. That's how the article is directed, and you understand this is just the way a moral revolution moves forward, telling us our emotions are supposed to say it is absolutely wrong for this individual who claims to be a female to be told that there can be no competition as a biological female even though the individual is born as a biological male. But The New York times article is really important because it tells us even as a federal judge, kind of predictively here, has stepped in to nullify the Idaho law for some time.
Well, even The New York Times and the authorities it cites admit it has no way of figuring out what justice and equity would look like even in light of the transgender revolution. Even if you grant the revolution and just assume all of its premises, the fact is this doesn't make any sense, and this is where Christians understand it can't make any sense. Because ontology, that is to say created reality, trumps autonomy. You can say, "I'm this or I'm that," but being says something else, nature says something else, and as Christians understand, the Creator says something else. It becomes a form of insanity and irrationality to try to argue consistently that it can be otherwise.
We've seen over and over again the very interesting collision between the historic feminist movement and the transgender movement, because you can have one but you can't have the other. We've seen historic women athletes, even lesbians like Martina Navratilova, come under condemnation for saying that biological males who are identifying as female should not be allowed to compete against biological females. And the reason for that, as Martina Navratilova makes clear, is that they have an unfair physical advantage regardless even of some forms of surgery and hormone therapy that may be done.
An honest statement came from Eric Vilain, a geneticist who we are told specializes in sexual development who has advised the NCAA and the International Olympic committee. He said that when it comes to this issue, what we're looking at is "two almost irreconcilable positions." That is, in setting eligibility standards, "One relying on an athlete's declared gender and the other on biological litmus tests." Again, you can have one or the other. The language is at least candid, "irreconcilable positions." The New York Times then says that politics has entered the equation. Of course it has. And politics is involved in a district court judge putting the Idaho law on hold.
Another very illuminating part of the article is where we read that there is concern "that residual physical advantages that transgender athletes might possess could reduce the participation of cisgender women in sports." Then in parenthesis, "(Cisgender means their gender identity matches their assigned sex at birth.)" Two huge things going on there very quickly. One is the insanity of using a word like cisgender because female, girl or woman, would do very well, thank you. But the other is the fact that cisgender is compared to transgender as a way of saying we're all just a matter of sexual identity. If you're not transgender, you're cisgender. What's completely thrown out as unacceptable is the idea of natural or normal, because after all, this entire movement is in revolt against those categories.
The article in The New York Times makes clear that the United Nations can't figure out what to do with this. The International Olympic Committee really can't figure out what to do with this. The NCAA doesn't know what to do with it, except having sold out to the sexual revolutionaries, they really are in a very difficult position because they've got to try to reconcile the irreconcilable.
But then another issue in our cultural moment is the fact that so many people just want to cite science. Well, what does the science say? Well, this article is, again, I want to give it credit, honest for saying the science really doesn't say any one thing on this at all. On the science side, The Times looks to Sweden and some research undertaken there. But one of the researchers said honestly, "I'm not sure there will be any reliable data at any point." The NCAA makes very clear it wants to push the sexual revolution. The paper tells us, "The NCAA policy says that issues of basic fairness and equity demand the expansion of our thinking about equal opportunity in sports." That's that kind of politically correct statement that says everything and nothing at once.
The article concludes by citing one scientist who said, "It is easy to sympathize with arguments made on both sides," but "it is going to be impossible to make everyone happy." Well, in this case, as Christians, we just have to understand that our gender and our sex are the same according to God's creative plan. And we can't go into identity politics. We have to recognize that we are who God made us to be, and our biology is a part of how God is telling us who we are, made as male or female, man and woman. And we have to observe the utter insanity of trying to enter into a cultural conspiracy to deny the obvious.
But if nothing else, this article makes very clear, you can have the transgender revolution or you can have, say, female sports, sports for girls and women. You're not going to be able to have both, and it's insane to operate on the premise that it might be possible. And the way God has created the world, reality always wins. And that's made tragically clear in the fact that The Times article also cites a case coming from Connecticut in which you have some young women who are bringing cause for discrimination because transgender females, that is biological males, otherwise at that age known as boys, are competing as girls, and together, the two have won 15 state titles between them. All this insanity is what happens when God's purpose in creation is denied. But for that matter, the culture is trying to deny that there's a Creator in the first place, and that explains just about everything.
But as the week comes to an end, we need to be concerned for our brothers and sisters and our neighbors in Iowa who are reeling in the aftermath of a massive storm known as a derecho. That's a straight line storm, scientifically it's known as a mesoscale convective system, and the storm effectively destroyed at least about one-third of all the crops there in Iowa awaiting harvest. Many of these farmers and others in Iowa were already facing severe financial challenges. This storm is a disaster and a tragedy for many in the state of Iowa. And in the midst of so much going on in America right now and in the headlines, this disaster hasn't gained national attention, but it should. We need to remember Iowa as we come to the end of the week.
Thanks for listening to The Briefing.
For more information, go to my website at albertmohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on the Southern Baptist Theological seminary, go to spts.edu. For information on Boyce College, just go to boycecollege.com.
I'll meet you again on Monday for The Briefing.