Supreme Court decisions on affirmative action, student debt

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Today we talk about the Supreme Court decisions on affirmative action and on student debt. While higher education institutions with billion-dollar endowments are now bemoaning this decision that makes it more difficult to ensure that people of color have opportunities to attend, they still refuse to pay their fair share of property taxes so we talk about PILOT. 

Jordan Berg Powers, Jonathan Cohn, and Anna Callahan chat about Massachusetts politics. This is the audio version of the Incorruptible Mass podcast, season 5 episode 18. You can watch the video version on our YouTube channel.

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Transcript

Hello and welcome to Incorruptible Mass. Our mission here is to help you transform state politics. We know that we can have the policies here in Massachusetts reflect the needs of the vast majority of the residents of our beautiful state. 

And today we are going to be talking about higher education. We're going to be talking about the supreme court ruling about affirmative action that was specifically Harvard, as well as another university, but Harvard specifically here in Massachusetts.

We're also going to be talking about payments in lieu of taxes and how these large universities with gigantic endowments are not paying their fair share. And we will talk about student debt and how that is affected here in Massachusetts through the Cherish act, which has still not passed. Before we go on to that, I am going to let my wonderful co hosts introduce themselves.

We will start with Jordan. My name is Jordan Berg Powers. I use he him and I have many years of experience working, unfortunately, in Massachusetts politics.

And Jonathan, – fortunately for us, unfortunately for you!  [laugh]

Yes, fortunately for us, jonathan cohn he him has been active for a number of years on electoral and issue campaigns based here in Boston. Anna Callahan, she her coming at you from Medford. A lot of local organizing but training people around the country for many years and then the last couple of years, state politics in Massachusetts.

And so thrilled to be with some of my favorite people here in Massachusetts politics. Let's get started. Who wants to give me an update of the supreme court ruling? There are many. So which ones should we talk about?

Let's start with the affirmative action one. Yeah, the affirmative action one that Harvard was involved in. Go ahead, John Cohn.

Oh, I thought you were going to – 

Okay, well, I guess I'll start. So the supreme court ruled that it's actually comical that the 14th amendment meant to bound governments to ensure that we're protected equally, people of color. The supreme court ruled that private institutions cannot see race when figuring out admissions. That they are not allowed to consider race.

People have said that this is the end of affirmative action. And I think a lot of people have rightly pushed back that affirmative action simply means to take an affirm action to intercede on behalf of somebody or something positively. Historically, it's to undo societal wrongs.

But in this case, we are still allowed to take affirmative action for wealthy people, for people who are, for women, for athletes. There's all sorts of affirmative action. We are not that long ago from Becky, from Full House paying her children's way into elite schools simply because they faked sports.

That's still allowed under this thing. But you couldn't take into account the race of people. And that is what got – of applicants.

And what's so galling about this is that the study by, the study by researchers found that 43% of Harvard of white people who go to Harvard got there because of their wealth and/or connections. So you are much more likely to have “lost” to a white person who bought their way in than you are a person of color through the fact that the school didn't want just white people to go there. I think that's an important note in all this and all the things are happening.

I think the other one for me that's important is that we've talked a lot, people have publicly talked a lot about the substance and how terrible it is and I think we should. But the thing for me that's most galling, having read it is just, it's actually a really poorly thought out and stupid decision. It fails the basics, it doesn't, using the fourteenth– you could get at admissions, right.

The government does have a vested interest in admissions at higher education, and you could get at it through the equal protect–  through some other, through title six, which they ended up doing. You could get to it through the fact that the federal government has loans, right? Like there are ways to get at it. The 14th amendment is stupid.

If you are trying to use the 14th amendment and then try to think the 14th amendment was race neutral, that the freedmen’s bureau was race neutral, and that the civil rights legislation was race neutral, which is laugh-on-its-face hilariously stupid. The good news is that you can turn all those, you can turn the fact that it's an incredibly poorly written thing on itself. Like, yeah, you can't take in race, but like maybe we should take in “Was your family a freed man or woman at some point?” Then guess what? We could take that into consideration because being freed after slavery was race neutral according to the supreme court. I'm not black, but my ancestors were enslaved. So you could put a check mark, Do you have family members who are considered, who were enslaved? Right? Like you could put that because apparently that's race neutral.

The conservative supreme court justices helping advance reparations. [laugh]

It's a really poor decision. And I think the important thing to note because a lot of the time we talk about these things in terms of moral outrage, and as well we should, but the irony for me is that the writing of this case, the writing of it, the concurrent writings, prove the very points that they didn't get there on merit in a merit society. The six justices who voted for it would not be on the supreme court if we judged upon merit because it's poorly thought out. And they're not right. They're just not the six best conservative minds in America.

They're not. And I think it's important to say that. 

Little bit of a short episode today, Jonathan. I'm going to let you finish your thought and then we're going to kind of take a turn. 

Oh, the quick thing I was going to note that it's also just seemingly incoherent in the ruling that they say, well, actually military academies, it's still important for them to be able to take into acount race because the military has a vested interest in having a kind of racially diverse military. And it's just because the military why is it okay there? But then bad for the medical school training doctors who need to be able to treat different types of patients.

It's that they know, I mean the conceit, of course is in it. Right? To pretend that society, that race no longer matters in society is to fundamentally believe that black people are where we are in America and that people of color, the intricacies where we are left behind by America's promise that that's our fault. So you fundamentally have to believe that my brain is smaller. You fundamentally have to believe that I'm a lesser human, right? Like you have to believe racist ideas to believe that.

Then explain it to me. Explain to me why black men make so much less to the white dollar. Unless you believe that fundamentally black people are lesser humans, right? And that there are barriers because you can't and I think that's important to I think it's really important that your listeners take that in, because it's uncomfortable for people to think that other people think I'm a lesser human.

But I want you to really take that in the six people who voted on this. You have to fundamentally either believe one or two things. Either it's black people's, black people are just by definition lesser humans.

Therefore it's our fault where we are. Either that OR, or it's not our fault that there are barriers and then racism exists and then this doesn't make sense, right? Like you can't and so, yeah, I think, John Roberts started working on this in 1980s for Reagan, the first white-lash and white people against it. So think about that.

Twelve years after a bullet was put through Dr. King's face because he had the audacity to believe that black people should be treated equally. John Roberts was like, this project is done, it’s to much. Gone too far.

Yeah. So one thing I want to comment on is the reaction of Harvard and of a lot of people in the political space here in Massachusetts is bemoaning, oh, it's terrible. It's going to end our ability to do this.

And one thing that you commented on, Jordan, was to say it doesn't end ability to do anything. You could very easily, there's so many ways in which you could basically ensure that people of a variety of backgrounds, not just black, but like immigrants and other language speakers and any number of ways that you can be sure to include those people that Harvard specifically, as well as other large universities, have been reacting to this with this oh, woe is us now.

We can't do this anymore. Isn't that terrible? And I'm hoping that we can tie this a little bit into payment in lieu of taxes, which most people probably know what that is, but if you're a listener and you don't know, we call it PILOT. And it basically is a law in Massachusetts that says that nonprofits, doesn't matter if you have billions of dollars of endowments, but that nonprofits do not have to pay property taxes to cities and towns, and that they can do a “payment in lieu of taxes,” which they work out.

They negotiate to have some sort of payment, which is usually a small fraction of the payment that they would normally pay, which unfortunately, they use a lot of the resources. They use the police and fire, their students are taking up a lot of the homes and rental spaces, and there's so many ways in which they burden cities and towns while not paying their fair share. And I would love to kind of build this into the conversation here.

Yeah, no, I would love to, because especially when I think of what Harvard can do to help level the playing field, where it's like if Harvard wanted to contribute more so that let's say to Boston. So that Boston can invest that in the Boston public school system to create a better K to twelve experience for black and brown students in Boston, that they could be helping to remedy the problem earlier on.

And rather than faking inability to help at anything. As well as simply the fact that Harvard, as a former colleague of mine once said, harvard is effectively a hedge fund with the university attached to it. And that is how it often acts here, that it owns a stunning amount of property, as I continually stumble upon buildings that are Harvard owned, and that hospitals and a lot of the large universities effectively operate as for profit institutions. But because of what they are, they benefit from a lack of, they benefit from a property tax exemption.  

And systems like PILOT, and I'll give a shout out to kind of legislation that exists at the State House, some Representative Erica Uyterhoeen and Senator Adam Gomez, to enable municipalities to require pilot payments of like 25% of what would have been paid, which is like, it's a good deal for them. It's less than they should be paying. But rather than so it doesn't have to be like a negotiation, institution by institution, that will always tilt the playing field toward the institutions with the most money.

They should be better neighbors and better at actually addressing the problems that they say that they want to address. I know at a recent city council hearing about PILOT in Boston, harvard had the audacity to say that by paying payroll taxes for their employees, that's a community benefit. They should be able to count that toward their PILOT.

I'm like, no, that is not how this works. 

God forbid we should actually pay our payroll taxes as well as any sort of property tax are we doing a lot. 

I think the other piece jonathan, I'd love for you to comment, obviously we talked beforehand, is just the other piece about the scarcity of resources and the way in which allow these rich institutions that are still geared towards the wealthy clearly see the other part, 3% of who gets into these places, basically creating scarcity through the fact that they have these institutions.

They then allow very few people who aren't sort of connected, well connected investors, future investors in their hedge funds, but they take up all this space and all this tax dollars that could be going to lots of people. 

Exactly. It's the same thing as well that when it comes to, let's say, the large endowments. But I know that there's legislation at the state House. I believe it's some Natalie Higgins and Christine Barber in the house. I think it's Adam Gomez again in the Senate to tax large university endowments to help put money into the public higher education system.

Because when we're thinking about how to get a better higher education system that we need to make sure that the elite universities are not just lily white, not just, let's say like lily white spaces that are exacerbating inequalities that exist. But at the end of the day, Harvard is not like, Harvard's student body is never going to be a large corrective to in a public because it is a very small student body that you need to be making sure that we need to be having investments in our public higher education system, that Massachusetts has often been underfunded over in recent decades, to be making sure that students are able to graduate with a strong education, with professors who aren't cycling through because of adjunct status, and that they're able to graduate without accruing debt, which is to move on. And about the Cherish Act yeah, and I especially like that's the Supreme Court decision today around that. Oh yeah.

And that's even like that's also a knock on the ability on, let's say, equity and higher education. Because if they're effectively then saying that the Supreme Court thinks it's a good thing to saddle people and especially knowing that, let's say, like Black and Brown graduates bear disproportionate debt burden that they want that to hang with, people forever, making it less likely that some people will even seek higher education in the first place. Or making them making it more difficult for people to have a certain freedom in the jobs that they choose or how to start out.

How to start out. And it's something that Massachusetts on student debt that I mentioned with the Church Act, which is from Jo Comerford in the Senate. And it's Sean Garballey in the House. And I believe it's a few different folks together in both cases, Garballey and Pat Duffy from Holyolk in the House, that students should be able to graduate without debt, that we should be investing more in our public higher education. We should be making sure that students have kind of green and healthy buildings on campus, that faculty and staff are paid well, that we're investing in supports for the student population, and that people can graduate without debt at our public institutions of higher education, which is a crucial thing to do.

That addresses both that kind of intersects with both of the Supreme Court rulings that we need to be able to kind of end the cycle of debt that exists by making sure that we are enabling people to graduate without debt. And we need to see how our public higher, like our public higher education institutions, are critical for reducing economic and racial inequality because they serve many students and are crucial for creating those pathways. Exactly.

And I just want to say also that, again, the Supreme Court, just to go back to the tie in for this, the Supreme Court, again, is acting sort of unilaterally. It's not as bad I haven't read through it's just happened, so I haven't read through everything like I did for affirmative action yet. But even here, they're just like, the government can't cancel $430,000,000,000 of due to debt because it wants to, and it's just like but that's not a legal argument.

You can't just decide you don't like it, and that it's a big number that makes you feel icky, and so therefore, it can't do it. You have to actually judge it on its merits. And largely, this court is just deciding it doesn't like things and then trying to figure out why.

And that's not what the Supreme Court is supposed to do or meant to do. It is certainly what they have accused. Every accusation a conservative makes is a confession.

So for years, conservatives have complained that when you take the idea that a house is your home and you have your own ability to control it, so therefore, if you have, say, over yourself, you clearly have a right to privacy, a right to body autonomy, that's a natural, understandable flow of logic. And so therefore, you have a right to say over your own body, that's a clear legal argument to undo. Roe and to undo that legal argument, our Supreme Court went to a guy who believed in witches in the 14 or twelve hundreds, I think some of the 14 hundreds, it's just bonkers.

They just do whatever they want. And I really think it's important that we, for those of us who care deeply about government and its role, and not fascism, because this is what fascism like. It looks like what the Supreme Court is doing, which is deciding things it likes and doesn't like, regardless of the law, and then just deciding it right.

That's what fascism is. Well, people in power want this thing. People in power don't like that.

Poor people, especially black, mostly black women, have gotten money off their debt that's supposed to be making these rich people richer. So we don't like it, so let's just rid of it. Let's just decide to get rid of it.

But we're not going to base it on any sort of real logic of law. Right? And I think that it is a distinction that's important. It's a distinction that's important in this moment that our supreme court is just out of control from its role, its reality, and its acting in fascism.

Yeah, sorry, just a very quick thing that just speaks to how divorced some actual law the supreme court is. Is that the the other supreme court ruling from this morning about the woman who's claimed that, well, she doesn't design wedding websites, but if she designed wedding websites, she wouldn't want to have to design them for gay couples. And thus she's losing out on her ability to design wedding websites by this antidiscrimination law.

It's not something she even does. And then her lawyers faked a request from a nonexistent gay couple asking her to design for their wedding. That a reporter from the new republic and Lisa Jared Grant was the first person to actually call the guy from the document that was submitted of a request that she got to this woman who doesn't design wedding websites to design a website for their wedding.

And she calls a guy and says, like, I don't know why I'm listed there because that's my name, address, and number, but I am straight and been married to a woman for a number of years and have no intention of getting a new wedding anytime soon. So they just made it up, stole this guy's information. You got to be proud of yourself for that.

I think that's really important, though. I mean, it's just like, imagine a black person did that. They'd be in jail.

They would put that black person in jail. It's just they run amok. And I think it's incumbent when I want this to come back around to the state legislature and our folks.

It's really easy when you're facing fascism to just throw up your hands and be like, well, what are we going to do? That's how you get Hitler. That's how you get Mussolini. In these moments.

We just cannot allow the things that we control and the people who have the ability to move power to be as mediocre as they currently are because we need them to push harder and clearer and braver, because our opponents are brave. They do not even tether their ideas to the constitution anymore. They are bravely out on a limb, and we need to be equally brave and pushing in the other direction, and hence people to just work around this clearly big size hole, right? By zip code.

Do it by whatever, do it by language. You're allowed to mention race, but you can't judge by it. Like, fork that.

Just tell everybody they have to mention their race and their application it's just asinine we need you to be brave in these moments. Our legislature needs to not do tax cuts for rich people and invest in higher education like you don't. The way to make it so that students have less student debt, that this is less of a problem, is to invest in public education so the burden isn't falling onto individual students.

Yeah. So when I was on the commission, the Open Government Commission and the Fair Campaign Practices Commission in Berkeley for two years, because I'd helped them pass the public funding of elections in Berkeley. And so that allowed me to help implement that law.

And there was something one of the guys on that commission said I thought was amazing and really transformed the way I think about politics. There was one question about a tiny update to the law that came up where the tiny update might have put us in a position that a city in Arizona was in where the Arizona Supreme Court said, no, actually, because the Supreme Court has said the corporations are people. You are not allowed to do this one sort of niggling thing that you can do, or money is speech.

Actually, money is speech that you can't do this one thing in Arizona. And somebody raised it in the meeting saying, oh, because we know this was struck down in Arizona, we can't put this language in our law. But one of the guys on the commission and I just loved his response, he said, it is not our job as appointed or elected officials or citizens or anything.

It is not our job to support the wrong decisions of the Supreme Court. And if we believe that they're wrong, if we believe that money is not speech, we need to make that very clear in the policies that we pass. And our state legislature needs to do the same thing.

If they disagree with the decisions that the Supreme Court is making, they need to put that into policy without fear, because the hope is that it might go to the Supreme Court. Don't be afraid it might go to Supreme Court. Hope that it might go to the Supreme Court, because what we need is for every state to be passing these laws and contradicting what the Supreme Court says, because that is how we make change.

Amen. Thanks, everybody, so much. We always love these discussions with you.

Please send us your questions. Please donate to the show, and we look forward to seeing everyone after next week when some of us are on vacation. And we will talk to you all in a week or two.

Bye.