[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


                  HOW SCOTUS'S DECISION ON RACE-BASED
                    ADMISSIONS IS SHAPING UNIVERSITY
                                POLICIES

=======================================================================

                                HEARING

                               Before The

                    SUBCOMMITTEE ON HIGHER EDUCATION 
                         AND WORKFORCE DEVELOPMENT

                                 OF THE

                COMMITTEE ON EDUCATION AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________


           HEARING HELD IN WASHINGTON, DC, SEPTEMBER 28, 2023

                               __________

                           Serial No. 118-25

                               __________

  Printed for the use of the Committee on Education and the Workforce
  
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]  


        Available via: edworkforce.house.gov or www.govinfo.gov
        
                              __________

                   U.S. GOVERNMENT PUBLISHING OFFICE                    
55-918 PDF                  WASHINGTON : 2024                    
          
-----------------------------------------------------------------------------------         
       
                COMMITTEE ON EDUCATION AND THE WORKFORCE

               VIRGINIA FOXX, North Carolina, Chairwoman

JOE WILSON, South Carolina           ROBERT C. ``BOBBY'' SCOTT, 
GLENN THOMPSON, Pennsylvania             Virginia,
TIM WALBERG, Michigan                  Ranking Member
GLENN GROTHMAN, Wisconsin            RAUL M. GRIJALVA, Arizona
ELISE M. STEFANIK, New York          JOE COURTNEY, Connecticut
RICK W. ALLEN, Georgia               GREGORIO KILILI CAMACHO SABLAN,
JIM BANKS, Indiana                     Northern Mariana Islands
JAMES COMER, Kentucky                FREDERICA S. WILSON, Florida
LLOYD SMUCKER, Pennsylvania          SUZANNE BONAMICI, Oregon
BURGESS OWENS, Utah                  MARK TAKANO, California
BOB GOOD, Virginia                   ALMA S. ADAMS, North Carolina
LISA McCLAIN, Michigan               MARK DeSAULNIER, California
MARY MILLER, Illinois                DONALD NORCROSS, New Jersey
MICHELLE STEEL, California           PRAMILA JAYAPAL, Washington
RON ESTES, Kansas                    SUSAN WILD, Pennsylvania
JULIA LETLOW, Louisiana              LUCY McBATH, Georgia
KEVIN KILEY, California              JAHANA HAYES, Connecticut
AARON BEAN, Florida                  ILHAN OMAR, Minnesota
ERIC BURLISON, Missouri              HALEY M. STEVENS, Michigan
NATHANIEL MORAN, Texas               TERESA LEGER FERNANDEZ, New Mexico
JOHN JAMES, Michigan                 KATHY E. MANNING, North Carolina
LORI CHAVEZ-DeREMER, Oregon          FRANK J. MRVAN, Indiana
BRANDON WILLIAMS, New York           JAMAAL BOWMAN, New York
ERIN HOUCHIN, Indiana

                       Cyrus Artz, Staff Director
              Veronique Pluviose, Minority Staff Director
                                 ------                                

       SUBCOMMITTEE ON HIGHER EDUCATION AND WORKFORCE DEVELOPMENT

                     BURGESS OWENS, Utah, Chairman

GLENN THOMPSON, Pennsylvania         FREDERICA WILSON, Florida,
GLENN GROTHMAN, Wisconsin              Ranking Member
ELISE M. STEFANIK, New York          MARK TAKANO, California
JIM BANKS, Indiana                   PRAMILA, JAYAPAL, Washington
LLOYD SMUCKER,Pennsylvania           TERESA LEGER FERNANDEZ, New Mexico
BOB GOOD, Virginia                   KATHY E. MANNING, North Carolina
NATHANIEL MORAN, Texas               LUCY McBATH, Georgia
JOHN JAMES, Michigan                 RAUL M. GRIJALVA, Arizona,
LORI CHAVEZ-DeREMER, Oregon          JOE COURTNEY, Connecticut
ERIN HOUCHIN, Indiana                GREGORIO KILILI CAMACHO SABLAN,
BRANDON WILLIAMS, New York             Northern Mariana Islands
VIRGINIA FOXX, North Carolina        SUZANNE BONAMICI, Oregon
                                     ALMA ADAMS, North Carolina
                        
                        
                        C  O  N  T  E  N  T  S

                              ----------                              
                                                                   Page

Hearing held on September 28, 2023...............................     1

                           OPENING STATEMENTS

    Owens, Hon. Burgess, Chairman, Subcommittee on Higher 
      Education and Workforce Development........................     1
        Prepared statement of....................................     4
    Scott, Hon. Robert C. ``Bobby'', Ranking Member, Committee on 
      Education and the Workforce................................     7
        Prepared statement of....................................     9

                               WITNESSES

    Somin, Allison, Legal Fellow, Pacific Legal Foundation.......    11
        Prepared statement of....................................    14
    Zhao, Yukong Mike, President, Asian American Coalition for 
      Education..................................................    22
        Prepared statement of....................................    24
    Hinojosa, David, Director of the Educational Opportunities 
      Project, Lawyers' Committee for Civil Rights Under Law.....    46
        Prepared statement of....................................    48
    Squires, Delano, Research Fellow, Richard and Helen DeVos 
      Center for Life, Religion and Family, The Heritage 
      Foundation.................................................    65
        Prepared statement of....................................    67

                         ADDITIONAL SUBMISSIONS

    Ranking Member Scott:
        Affirmative Action Report................................   115
    Bonamici, Hon. Suzanne, a Representative in Congress from the 
      State of Oregon:
        Article dated July 3, 2023 from Forbes...................    85
        Amicus brief excerpt.....................................    91

 
                  HOW SCOTUS'S DECISION ON RACE-BASED
               ADMISSIONS IS SHAPING UNIVERSITY POLICIES

                              ----------                              


                      Thursday, September 28, 2023

                  House of Representatives,
    Subcommittee on Higher Education and Workforce 
                                       Development,
                  Committee on Education and The Workforce,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:18 a.m., 
2175 Rayburn House Office Building, Hon. Burgess Owens 
[Chairman of the subcommittee] presiding.
    Present: Representatives Owens, Grothman, Stefanik, Good, 
Moran, Williams, Foxx, Takano, Jayapal, Leger Fernandez, 
Courtney, Bonamici, Adams, and Scott (Ex Officio).
    Staff present: Cyrus Artz, Staff Director; Nick Barley, 
Deputy Communications Director; Mindy Barry, General Counsel; 
Hans Bjontegard, Legislative Assistant; Isabel Foster, Press 
Assistant; Daniel Fuenzalida, Staff Assistant; Sheila Havenner, 
Director of Information Technology; Paxton Henderson, Intern; 
Amy Raaf Jones, Director of Education and Human Services 
Policy; Marek Laco, Professional Staff Member; Georgie 
Littlefair, Clerk; John Martin, Deputy Director of Workforce 
Policy/Counsel; Hannah Matesic, Deputy Staff Director; Audra 
McGeorge, Communications Director; Rebecca Powell, Staff 
Assistant; Mary Christina Riley, Professional Staff Member; 
Chance Russell, Economist and Policy Advisor; Brad Thomas, 
Deputy Director of Education and Human Services Policy; Maura 
Williams, Director of Operations; Amaris Benavidez, Minority 
Professional Staff; Ilanad Brunner, Minority General Counsel; 
Rashage Green, Minority Director of Education Policy & Counsel; 
Christian Haines, Minority General Counsel; Emma T. Johnson, 
Minority Legal Intern; Stephanie Lalle, Minority Communications 
Director; Raiyana Malone, Minority Press Secretary; Shyann 
McDonald, Minority Staff Assistant; Kota Mizutani, Minority 
Deputy Communication Director; Veronique Pluviose, Minority 
Staff Director; Clinton Spencer IV, Minority Staff Assistant; 
Banyon Vassar, Minority IT Administrator.
    Chairman Owens. The Subcommittee on Higher Education and 
Workforce Development will come to order. I note that a quorum 
is present. Without objections, the Chair recognizes the call 
to recess at any time.
    The Committee has gathered today to discuss the aftermath 
of the Supreme Court decision in Students for Fair Admission v. 
Harvard, and the Students for Fair Admission v. University of 
North Carolina, to explore the future possibilities of college 
admissions without racial discrimination.
    The Court in its 6 to 2 decision, held that race-based 
admissions are a violation of the Constitution and a violation 
of the Civil Rights Act. For too long, the gatekeepers of 
postsecondary education have treated applicants differently 
based on the color of their skin. For far too long within the 
walls of our educational institutions, generations of Americans 
have been taught to accept the theory of eugenics as normal.
    This theory assumes that as a race, black Americans think 
with their skin, that based on their skin color they are 
monolithic in their politics, reasoning and most importantly 
their intellectual potential. Those who do not fit within 
certain expectations and boundaries are considered traitors to 
their race.
    The theory of Eugenics has a prescribed baseline of 
expectations. This baseline accepts as a fact that the white 
race is inherently and intellectually superior, privileged and 
destined to dominate other races. It also believes that the 
black race is inherently hopeless, hapless and forever broken 
due to slavery 200 years ago.
    Not taught in our educational institutions is our proud 
history as national leaders and a love of faith, family, the 
free market, education and our country. Americans are always 
shocked to hear that the black community once led our country 
in categories of success that all communities sought after.
    During the 40's to 60's, black men led our Nation in 
percentage matriculating college, commitment to marriage, and 
percentage of entrepreneurs, over 40 percent. We had a thriving 
community of which between 50 to 60 percent were middle class.
    Today's history is purposely silent on this community's 
commitment to hard work, grit, tenacity, resilience, 
intelligence, loyalty and leadership. Instead, our story has 
been transformed into that of a weak race, hopelessly oppressed 
and not to be respected but pitied.
    The decades of demeaning messages our country has accepted 
that black Americans are overall incapable of competing against 
white Americans when it comes to intellectual merit. 
Affirmative action has been a subtle and stealth Trojan horse 
that has effectively messaged this racist attack of low 
intellectual expectations.
    Thankfully, the Supreme Court has recently granted us a 
major win for equal opportunity and for meritocracy, the two 
principles essential for the attainment of the American dream. 
Students across America, whether black, white, Hispanic, Asian 
or other, can now realize their potential without fear of overt 
racial discrimination or subtle bigotry.
    We are already seeing small changes due to racial blind, 
merit-based acceptance that's slowing the assiduous pace of the 
Radical Left's agenda. For example, Columbia Law Review 
temporarily froze hiring because of the Court's ruling, 
disrupting their long-standing practices of selecting senior 
editors based on race versus merit. Columbia Law Review has 
since resumed hiring without unfairly discriminating, and 
hopefully more law schools will follow this example.
    As our Nation celebrates the Supreme Court's ruling, we 
must remain diligent in identifying those who are defiant, 
those who despite the Supreme Court's ruling are determined to 
implement unconstitutional policies of affirmative action.
    There remain administrators who expressed their intent to 
selectively ignore both the substance and the spirit of the 
Supreme Court ruling. Americans should never accept these 
subversive attempts to preserve race-based admissions, and I 
promise you this congressional body will not.
    Chief Justice John Roberts was very clear when he wrote, 
and I quote ``Despite the dissent's assertion to the contrary, 
universities may not simply establish through application, 
essays or other means the regime that we hold unlawful today. 
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.''
    Let me repeat, and I quote, ``what cannot be done directly 
cannot be done indirectly.'' Those institutions who think the 
Supreme Court ruling is a pretty please ask, this Committee 
will keep a close eye on the 2024 application process as it 
unfolds. Racism hidden or overt will not be tolerated by this 
oversight body.
    Today's admission process must not resemble yesterday's. 
Further, we will watch as the ruling disrupts the landscape of 
other race-based institutions across America, as they have been 
also put on notice. The Constitution is color blind. The Civil 
Rights Act is color blind. In these tumultuous times, we should 
all be grateful that our democracy is steadfast dedicated to 
treating everyone equally under the law, regardless of race, 
creed, color or zip code. With that, I yield to the Ranking 
Member's opening statement.
    Mr. Scott.
    [The prepared statement of Chairman Owens follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Scott. Thank you, Chairman Owens. I thank the witnesses 
for your testimony today. Our nation still has a compelling 
interest in fostering racially diverse campuses, and the 
Supreme Court ruling in the Harvard/UNC cases does not change 
that.
    In fact, it was the Supreme Court in 1978 in the Bakke 
decision that established that institutions could pursue a 
diverse student body to advance academic freedom and consider 
race as one of many factors to evaluate prospective candidates.
    While the consideration of race is one of many factors in 
admissions is vital, it is important that we put the 
conversation in appropriate context. Of approximately 4,200 
degree granting institutions in the United States, less than 
100 selective schools consider race as a factor in admissions, 
and only ten consider race as an important factor.
    Before the adoption of race-conscious admissions policies 
at the University of Texas at Austin in 2005, black students 
never made up more than 4-1/2 percent of the freshman class. 
Following implementation of race-conscious admissions 
procedures, blacks, Hispanics and Asian Americans enrollment 
increased, as did classroom diversity.
    Narrowly tailored race conscious admissions practices 
actually leveled the playing field and counterbalance 
discriminatory admissions factors that are otherwise in place, 
such as standardized tests and legacy admissions. For example, 
the district court in the Harvard case illustrated how 
recruited athletes, legacy applicants, applicants whose family 
have a history of donating money to the school and children of 
Harvard faculty make up a large percentage of each admitted 
class.
    In fact, while the applicants make up less than 5 percent 
of the, what the--these applicants make up 5 percent of Harvard 
applicants every year, they constitute 30 percent of the 
applicants admitted each year, and nearly 70 percent of these 
applicants are white.
    Research also shows that standardized tests that many 
institutions require for admissions have a discriminatory 
impact, and in fact reduced scores that correlate more with 
students' income, zip code, family wealth, socioeconomic 
background and parents' educational attainment than the 
student's ability to succeed in college.
    To blindly allow the use of admissions without further 
examining their discriminatory effect is in fact unacceptable. 
When my colleagues across the aisle say they want a system 
based on merit, I agree. The problem is the current system is 
not based solely on merit, and without policies to 
counterbalance the discriminatory factors, the outcome of the 
system will remain discriminatory.
    After the Supreme Court's ruling in June, the 
administration's responsibility to eliminate disparities in 
higher education and achieve diverse learning environments did 
not end. I called on the Department of Education to issue 
comprehensive guidance to ensure schools and colleges fulfill 
their Title VI obligations and address existing discriminatory 
factors in college admissions, now that the discriminatory 
factors are not counterbalanced by affirmative action.
    One tool we could have is to achieve equal opportunity 
would be the Equity and Inclusion Enforcement Act, which is 
pending--which has been pending in Congress for several years, 
and it restores the private--would restore the private right of 
action for students and parents to bring disparate impact cases 
under Title VI.
    We also have pending is the Strengthen Diversity Act, which 
Representative Jayapal and I reintroduced this Congress, to 
provide resources to states and school districts that want to 
voluntarily develop plans to integrate their public schools.
    Finally, if we are serious about expanding access to higher 
education, then we must focus on ensuring that the system is 
available to all. That means instituting reforms such as those 
that we have proposed in the Loan Act, which will make going to 
college more affordable for both current and prospective 
college students.
    Justice Sotomayor said it best in her dissent. ``Ignoring 
race will not equalize a society that is racially unequal.'' 
What was true in the 1860's and again in 1954 is true today. 
Equality requires acknowledgment of inequality. Thank you, Mr. 
Chairman, and I yield back the balance of my time.
    [The prepared statement of Ranking Member Scott follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Owens. Thank you. Thank you so much, Mr. Scott. 
Pursuant to Committee Rule 8(c), all Members who wish to insert 
written statements into the record may do so by submitting them 
to the Committee Clerk electronically in Microsoft Word format 
by 5 p.m., 14 days after the hearing, which is October 4th, 
2023.
    Without objections, the hearing record will remain open for 
14 days, to allow such statements and other material referenced 
during the hearing to be submitted for the official hearing 
record.
    I will now turn to introducing our four witnesses, 
distinguished witnesses, and thank you again for being here. 
The first witness is Ms. Allison Somin, who is a Legal Fellow 
at the Pacific Legal Foundation, located in Arlington, 
Virginia.
    Our next witness is Mike Zhao, who is president of the 
Asian American Coalition for Education in Orlando, Florida. Our 
third witness is Mr. David Hinojosa, J.D., who is the Director 
of the Educational Opportunities Project in the Lawyers 
Committee for Civil Rights Under Law in Washington, DC.
    Our final witness is Mr. Delano Squires, who is a Research 
Fellow at the Richard and Helen DeVos Center for Life, Religion 
and Family at the Heritage Foundation, which is located in 
Washington, DC, and who is testifying on his own behalf. We 
thank the witnesses for being here today and look forward to 
your testimony.
    Pursuant to Committee rules, I would like to ask each to 
limit your oral presentation to a 5-minute summary of your 
written statement. I would also like to remind the witnesses to 
be aware of your responsibility to provide accurate information 
to the Subcommittee. I would first like to recognize Ms. Somin.

    STATEMENT OF ALLISON SOMIN, LEGAL FELLOW, PACIFIC LEGAL 
                FOUNDATION, ARLINGTON, VIRGINIA

    Ms. Somin. Chair Owens, Ranking Member Scott, distinguished 
Members of Congress, thank you for the opportunity to present 
testimony on behalf of Pacific Legal Foundation. We are a non-
profit legal organization that defends Americans' liberties 
when threatened by government overreach and abuse.
    I want to make three main points today. The Students for 
Fair Admissions decisions were important because they uphold 
the vital principle that individuals should be treated as 
individuals and not on the basis of their race. Two, followup 
litigation is necessary to realize the promise of these 
decisions. Three, the Education Department's guidance is a 
missed opportunity to inform schools of their important 
obligations in this area.
    Under the Constitution and Title VI of the Civil Rights Act 
of 1964, government and recipients of government money may not 
discriminate based on race. Before Students for Fair 
Admissions, there was a limited exception for universities to 
achieve a compelling interest in student body diversity.
    Universities largely slipped the leash of the Supreme 
Court's opinions and used race very broadly. The Students for 
Fair Admissions plaintiffs challenged this exception, bringing 
one case against Harvard University and a second against the 
University of North Carolina. The Court held that these 
universities had not met their burden.
    As the Chief Justice wrote, ``Each student must be treated 
as an individual, not on the basis of her race. Many 
universities have for far too long done just the opposite, and 
in doing so they have concluded wrongly that the touchtone of 
an individual's identity is not challenges vested, skills 
built, lessons learned but the color of their skin. Our 
Constitutional history does not tolerate that choice.
    That is not likely to be the end of race preferences in 
admissions. Chief Justice Roberts anticipated schools would use 
proxy discrimination to evade the opinion's core prohibitions. 
The majority acknowledges that universities may consider 
admissions essays about how a student's race affects her life.
    It also firmly states that universities may not simply 
establish through essays the regime held unlawful in the case, 
and further quotes an earlier Supreme Court opinion. ``What 
cannot be done directly cannot be done indirectly.''
    Unfortunately, the early evidence suggests evasion is going 
to be rampant. We see statements of intention to defy the 
ruling from the deans of major law schools, from presidents of 
universities and even the statements of State Governors telling 
universities in their State that they can safely ignore the 
decision. If these evasions go unchecked, Students for Fair 
Admissions guarantees of equal treatment will ring hollow.
    At the Pacific Legal Foundation, we have been fighting back 
against proxy discrimination at the K through 12 level. Several 
other attorneys from there and I represent the Coalition for 
T.J., a group of parents challenging a reengineered proxy 
discrimination admission scheme at top science and magnet 
technology school Thomas Jefferson High School in Fairfax 
County, Virginia.
    In the summer of 2020, Fairfax County restructured its 
admission process to in effect lower the numbers of Asian 
American students that could attend T.J. The text messages and 
emails produced in discovery make it clear that admissions were 
restructured because of, not in spite of, these effects on the 
number of Asian American students there.
    Yes, Fairfax County's discrimination was the proxy kind, 
not the direct kind. Is it no less pernicious and certainly no 
less hurtful to the kids, told that they could not go to their 
dream high school because of their race. Right now, that case 
is pending before the Supreme Court on a petition for 
certiorari. My PLF colleagues also have three other cases 
pending in the pipeline in the Federal appellate courts, 
involving proxy discrimination at high schools in Boston, New 
York City, Montgomery County, Maryland that all follow the same 
general pattern.
    While litigation by non-profit groups is an important way 
to enforce the core promise at Students for Fair Admissions, it 
is not the only way. The Department of Education has an 
important role to play in making sure that the civil rights 
laws are followed.
    Unfortunately, the frequently asked questions document that 
the Office for Civil Rights issued following the Students for 
Fair Admissions decision indicates they are not going to do 
that. It basically ignores the large and looming problem of 
proxy discrimination, and essentially tells universities that 
whatever they want to do is fine, as long as they are not too 
open about it.
    That is not right, that is not the law, and these 
universities need to be held to account to realize the core 
American promise that individuals should be treated as 
individuals and not on the basis of their race. Thank you.
    [The prepared statement of Ms. Somin follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Owens. Thank you. Now Mr. Zhao, Mr. Zhao.

 STATEMENT OF MR. YUKONG MIKE ZHAO, PRESIDENT, ASIAN AMERICAN 
           COALITION FOR EDUCATION, ORLANDO, FLORIDA


    Mr. Zhao. Yes. Chairman Owens and distinguished Members of 
Congress, I am Yukong Mike Zhao, a survivor of China's Cultural 
Revolution, during which my family endured political 
persecution, devasting personal loss and extreme poverty. In 
1992, I came to American as poor foreign student. In this land 
of opportunity, I achieved my American dream, later becoming 
the Director of Global Planning at Siemens Energy.
    Through affirmative action, as shown in Appendix A of my 
testimony, colleges used higher admission standards, de facto 
racial quotas and racial stereotypes to discriminate against 
Asian American applicants. This discrimination unjustly created 
unbearable study loads, stress and psychological harm to our 
children. Many Asian American applicants even hide their racial 
identity when applying to colleges.
    In 2014, I and other co-founders of Asian American 
Coalition for Education (AACE) started our journey of 
galvanizing the Asian community to support Students for Fair 
Admissions for its lawsuit against Harvard and UNC. AACE and 
partner organizations filed civil rights complaints against 
Harvard, Yale and other colleges.
    We organized rallies, encouraged students to join the 
lawsuits, and filed five amicus briefs in support. Today, our 
alliance has grown into over 300 organizations nationwide. This 
June, the Supreme Court rightly struck down race-based 
affirmative action.
    This is a historic victory for Asian-Americans, as our 
children should no longer be treated as second class citizens 
in college admissions. This is also a historic victory for all 
Americans, as the ruling will help restore meritocracy, the 
bedrock of the American dream.
    It will also advance America toward a color-blind society, 
as Martin Luther King dreamed of 60 years ago. However, 
advocates of diversity, equity and inclusion have not given up. 
On August the 14th, the Department of Education and Justice 
issued guidance that advocates continued use of race and race 
proxies in outreach and other programs.
    This guidance again misses the point. The root cause of 
racial disparity in college enrollment is the failure of the K 
through 12 education, particularly in inner cities, to prepare 
black and Hispanic children for colleges. Improving K through 
12 education is a better and a constitutional way to enhance 
racial diversity in higher education.
    Further, while America is faced with a STEM talent shortage 
and our K through 12 education is behind other industrial 
nations, the Biden administration irresponsibly suggests 
colleges should further eliminate objective and rigorous 
admissions standards.
    In response, AACE issued a policy statement attached as 
Appendix B, where we urge American colleges to stop the use of 
race and race proxies in college admissions, adopt a blind 
rating system by hiding student's name and other information 
that would disclose race, make students race data inaccessible 
to admissions evaluators, base admissions criteria on the needs 
of educational program, not racial diversity or equity, restore 
standardized testing as major criterion in admissions.
    The troubling fact is today nearly 81 percent of all 
colleges have made the standardized testing optional. In China, 
I witnessed during the Cultural Revolution Chairman Mao 
abolished the National College Entrance Exam in order to 
achieve class equity. After destroying the meritocracy, Chinese 
colleges produced millions of revolutionaries who could not 
conduct research or managing enterprise. As a result, China's 
innovation stopped, and its economy collapsed.
    America cannot afford to repeat this mistake by destroying 
meritocracy in the name of racial equity. When our Nation is 
faced unprecedented competition from international rivals, it 
is imperative to restore meritocracy in our educational 
institutions in order to maintain America's technological 
leadership and economic prosperity.
    The Supreme Court's landmark ruling provides historic 
opportunity for American colleges to correct their mistakes by 
promoting equality and a meritocracy. I hereby call upon 
Federal, State and local governments to support our policy 
recommendations to do just that. Thank you.
    [The prepared statement of Mr. Zhao follows:]
   [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Owens. Thank you, Mr. Zhao. I would now like to 
recognize Mr. Hinojosa.

  STATEMENT OF DAVID HINOJOSA, J.D., DIRECTOR OF EDUCATIONAL 
  OPPORTUNITIES PROJECT, LAWYERS' COMMITTEE FOR CIVIL RIGHTS 
                  UNDER LAW, WASHINGTON, D.C.

    Mr. Hinojosa. Good morning, Chairman Owens, Ranking Member 
Scott and Members of the House Subcommittee. My name is David 
Hinojosa, and I am the Director of the Educational 
Opportunities Project with the Lawyers' Committee for Civil 
Rights Under Law.
    Thank you for the opportunity to testify today on the 
Supreme Court's decisions. The Lawyers' Committee has been a 
leader in the fight for racial equity, access and justice in 
higher education for many years. We have worked with coalitions 
nationally and in two Midwestern states, to ensure that all 
students may access, be supported, graduate and into the 
workforce fully prepared for our pluralistic society.
    We have also had the distinct privilege and honor of 
representing an incredible multiracial group of students and 
organizations in the Harvard, UNC and UT-Austin cases, 
including black, Latino and Asian American students. Together 
with pro bono law firms, Asian Americans Advancing Justice 
(AAJC) and the North Carolina Justice Center, we represented 
the only State, the only students who have bravely testified in 
the UNC and Harvard cases about the tremendous academic and 
social benefits of diverse student bodies.
    When I argued the UNC case in the Supreme Court last 
October, I carried with me their powerful stories of 
resilience, unity and determination. These included Luis 
Augusta, a child of Mexican immigrant parents, who wanted to 
become a doctor after visiting his grandmother as a young child 
in Mexico and seeing her with an abscess in her knee because 
she lacked access to adequate health care.
    Luis had to fight his way into AP classes at his rural high 
school in North Carolina because a counselor did not think he 
could compete. Luis had strong grades, but did not have the 
highest test scores, because he did not even know that he could 
study for the SAT. Luis persevered and today he is in his 
fourth year of medical school.
    Sally Chen, a child of Chinese immigrant parents, who grew 
up in San Francisco in a one-bedroom apartment with her family 
and siblings. Sally often translated for her parents in stores, 
schools and doctor's offices. She thought about whether in her 
application she should discuss her family story and decided 
that she would be true to herself and share those experiences 
that inspired her.
    She was admitted to Harvard as a first-generation student, 
graduated and now helps lead work with the Chinese for 
Affirmative Action.
    Andrew Brennan, a second-generation black college student, 
who grew up in Kentucky and wrote in his college application 
that he did not always fit into the black stereotype, because 
he identified as gay and did not just listen to rap music. He 
is among less than 125 black men in his class at UNC. Andrew 
graduated, continued as a strong advocate for student voice, 
and today is enrolled at Columbia Law School.
    These are only a fraction of the deep, profound stories of 
many of our students, whose range of academic and social 
achievements, attributes, experiences and talents, including 
those impacted by race, were fully vetted under affirmative 
action admissions plans, and still should be fully vetted 
today.
    These students earned their seats, succeeded in school and 
are now succeeding in life. Our country needs more success 
stories like these, and we cannot allow others to use the 
Supreme Court's tortured history of the Equal Protection Clause 
and the promise of Brown v. Board, to take those seats away 
from other well-deserving students.
    Let us be real, that is what many supporters of the 
decision want to do, and not just in education but all facets 
of life, where built in, unearned and bought up privileges for 
the few determine who has opportunity and who does not. That 
may be somebody's dream, but that is not the American dream.
    Universities can do their part by instituting comprehensive 
reforms, including race-neutral programs of recruitment and 
outreach and student support, as well as deconstructing 
systemic barriers. We need Congress to do its part in helping 
to bring unity, opportunity and justice for all.
    We have several of these recommendations in our written 
testimony, and I will just highlight a couple. Providing grant 
funding to analyze and implement fair and meaningful race-
neutral alternatives that advance fair access and opportunity; 
increasing Pell grant funding and expanding eligibility; 
increasing dedicated funding for social and academic counselors 
in K-12; and investigating systemic barriers to higher 
education such as legacy admissions and the consideration of 
biased SAT and ACT exams for admissions and scholarships. Thank 
you.
    [The prepared statement of Mr. Hinojosa follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Owens. Thank you, Mr. Hinojosa. Appreciate it.
    Mr. Hinojosa. Thank you.
    Chairman Owens. Last but not least, I would like to 
recognize Mr. Squires.

STATEMENT OF DELANO SQUIRES, RESEARCH FELLOW, RICHARD AND HELEN 
   DEVOS CENTER FOR LIFE, RELIGION AND FAMILY, THE HERITAGE 
                  FOUNDATION, WASHINGTON, D.C.

    Mr. Squires. Good morning. My name is Delano Squires, and I 
am a research fellow in the Richard and Helen DeVos Center for 
Life, Religion and Family at the Heritage Foundation. I would 
like to thank Chairman Owens, Ranking Member Scott and the 
Subcommittee for the opportunity to testify this morning.
    The views that I express in this testimony are my own and 
should not be construed as representing any official position 
of the Heritage Foundation. The predictions of gloom and doom 
in a world without racial preferences resonate with some 
people, only because affirmative action has been debated for 
over 40 years, but it is still largely misunderstood.
    For starters, racial preferences were most common at highly 
selective universities like Harvard, Yale and Stanford, that 
admitted less than 10 percent of their applicants. There were 
less common in schools like Virginia Tech or the University of 
Missouri that admit well over half of their applicants.
    During the 2018 Federal court case on this issue, Harvard's 
Dean of Admissions acknowledged that the school used different 
standards based on race to determine which prospective students 
received recruitment letters. The university ranked applicants 
using an academic index comprising SAT scores and grades. These 
scores were broken into deciles, where the first decile is 
lowest and the tenth is highest.
    Harvard's own student data proved the school's two-tiered 
recruitment efforts were reflected in its admissions decisions. 
For instance, a black student in the fourth decile and Hispanic 
student in the sixth decile had a higher chance of being 
admitted than an Asian student in the tenth decile.
    In the words of Justice John Harlan, the lone dissenter in 
Plessy v. Ferguson, ``Our Constitution is color blind and 
neither knows nor tolerates classes among citizens. In respect 
of civil rights, all citizens are equal before the law.'' The 
Supreme Court struck down the use of racial preferences in 
college admissions because they subjected Asian and white 
students to higher standards than their black and Hispanic 
counterparts.
    What of the claim held by many progressive commentators 
that eliminating these policies will return American to a pre-
civil rights era of segregation and discrimination? It's simply 
not true. The highest-performing black applicants at Harvard 
have close to a 60 percent chance of being admitted, and for 
legacy black students, that number rose to 99.9 percent.
    Put simply, no selective university is turning away black 
students with the top grades and test scores. The main issue 
regarding race and enrollment at Harvard is that 75 percent of 
black and 57 percent of Hispanic applicants are clustered in 
the bottom three deciles, compared to 16 percent of their Asian 
American and 24 percent of their white peers.
    The solution to this problem is higher performance at the K 
through 12 level, not racial preferences at the collegiate 
level. Pity and paternalism do not lead to equality. Equality 
cannot be enforced through mandates or quotas. It cannot be 
declared through fiat or executive order.
    Any of the policies that apply different standards based on 
race in order to achieve demographic representation only 
reinforce inequality because it is impossible to lower 
expectations and raise performance at the same time.
    If we want to cultivate a truly diverse college campus that 
passes constitutional muster, we must pursue several long-term 
strategies at the K through 12 level. First, promote and 
advance education choice, specifically through options like 
education savings accounts which have been implemented in 
Arizona, Arkansas, Florida, Iowa, North Carolina, Utah and West 
Virginia.
    Second, local policymakers should create pathways for 
gifted students to receive progressively challenging work in 
school, as well as specialized education programs outside the 
classrooms.
    Third, we need to focus on one of the most important 
drivers of educational outcomes, family structure. Decades of 
research have strengthened the conclusion that children raised 
in homes with their married biological parents have better 
academic and behavioral outcomes than children raised in any 
other family arrangement.
    Today, 40 percent of American children are born to 
unmarried parents, and 23 percent live in single parent homes, 
the highest rate in the world. Any attempts to improve 
education outcomes, whether on a K through 12 or postsecondary 
level, must include changes in policy and culture that 
encourage marriage and strengthen families.
    This is why some schools are looking to incorporate the 
success sequence into the classroom. Students need to know that 
people who finish high school, secure stable employment and 
marry before having children have a single digit poverty rate 
by their mid-30's. The takeaway for politicians, policymakers 
and pundits should be clear. A student's family, home 
environment, study habits and school quality play a much larger 
role in determining their academic outcomes than their skin 
color.
    Public policy should reflect these facts, not be used to 
socially engineer outcomes in ways that violate basic 
constitutional principles. Thank you very much for your time 
and attention.
    [The prepared statement of Mr. Squires follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Owens. Thank you, Mr. Squires. Under Committee 
Rule 9, we will now question witnesses under 5-minute rule. I 
will begin the process. Mr. Squires, in this Subcommittee, 
there has been many discussions of what diversity should mean. 
Too many people focus exclusively on identity diversity. In 
contrast, you have spoken about a need for a wider net 
diversity.
    What is wider net diversity and why should it be a standard 
adopted to today's college campuses?
    Mr. Squires. Put simply, when I talk about ``wider net 
diversity,'' I am talking about extending and expanding 
opportunity to groups or individuals who may not have access to 
opportunity at a particular time. The key for wider net 
diversity is to uphold the same standards across the board.
    Now a perfect example of that from history, and where we 
could talk about real racial discrimination, I would say would 
be the Tuskegee Airmen, who obviously could not serve as 
aviators because of racial discrimination in the armed forces.
    When those opportunities came, they demanded that they had 
to meet the same standards as their counterparts, and in fact 
obviously they have a stellar service record and won the United 
States Air Force's first top gun competition in the late 40's.
    Now wider net diversity I would contrast with lower bar 
diversity, which seeks to prioritize superficial identity 
categories in order to create a demographically representative 
population. I am always for wider net, and I think that lower 
bar does anyone a grave disservice.
    Chairman Owens. Thank you. Ms. Somin, after the Supreme 
Court's decision against race-based admissions, some colleges 
and universities seem dedicated to continue race preferences. 
If universities are practicing affirmative action called by 
another name, why should the courts consider these policies 
illegal?
    Ms. Somin. Thank you. The name does not matter. What 
matters for the purposes of the law and the purpose of justice 
is whether or not universities are discriminating on the basis 
of race. If they are discriminating on the basis of race and 
admissions, even if they call that discrimination something 
else, it is illegal and they should be held to account.
    Chairman Owens. Interesting, faculty hiring has also been 
subject to race-based preferences. George Mason University 
published draft recommendations of a plan to enact race-
balancing by hiring staff to reflect the democratic diversity 
of the student, quote ``student population'' through diversity 
cluster hiring initiatives.
    This is just one example of professors being weeded out not 
by their expertise, but because they do not fit the 
university's imposed racial makeup. Given the Supreme Court's 
recent decision, do you think race-based preferences and 
faculty hiring also--do you consider that legal or not legal?
    Ms. Somin. The decision does not directly address race 
preferences in faculty hiring, but at public schools under the 
Constitution and under Title VI, which prohibits race 
preferences by recipients of government money, and Title VII, 
which generally prohibits race preferences in hiring, yes, 
racial preferences in hiring are generally illegal.
    While I believe the decision doesn't directly speak to it, 
the decision does change the climate and make it clear that the 
current court is not going to sit by and tolerate 
discrimination based on race.
    Chairman Owens. Thank you. Mr. Zhao, there are many who 
believe the racial discrimination in college admissions is a 
thing of the past, but you hear from exceptional students every 
day of being denied admissions despite their academic 
qualifications. Can you provide an example of students, of a 
student harmed by racial discrimination in college admissions?
    Mr. Zhao. Sure. Just this week, we received a complaint 
from outstanding student--He has a talent in programming. You 
know, everybody says that computer science is the future for 
the 21st century. He was hired directly from high school by 
Google but rejected by 16 of American's top schools like MIT, 
CMU, and he has outstanding credentials, academic performance. 
He also started up a--startup. He won the finalist of major 
global programming competitions.
    I want to say it is a shame, you know, our colleges should 
welcome him because we have STEM talent shortage in this 
country. It is appalling for the colleges to ignore this kind 
of talents. He already filed a civil rights complaint 2 days 
ago. I hope that the U.S. Congress will support his equal 
treatment complaint.
    Chairman Owens. Thank you. I would like to now recognize 
Mr. Takano.
    Mr. Takano. Thank you, Mr. Chairman. Mr. Zhao, I want to 
understand more about your definition of meritocracy in college 
admissions. I am speaking in the context of liberal arts 
undergraduate programs. You seem to want to return to a heavy 
reliance on standardized testing for admissions decisions, as a 
fair and a reasonable approach. Am I correct in that?
    Mr. Zhao. No. Actually, I support holistic evaluation, but 
it should be based primarily on objective like measurement, 
like standardized testing plus like leadership, other things. 
Very importantly educational----
    Mr. Takano. Okay, thank you. Thank you for your response. 
How much would you weight standardized testing in the process?
    Mr. Zhao. It depends on the educational program. For 
example, for STEM education, that would be weighted----
    Mr. Takano. Sir, sir, just--I want to confine our 
conversation to admittance into liberal arts institutions such 
as Harvard, a liberal arts undergraduate. I mean that is an 
important part of our educational system. How much would you 
say Harvard would be allowed to weight or should weight 
standardized testing?
    Mr. Zhao. I think it would be a major criteria----
    Mr. Takano. Major criterion. Would that be more than 50 
percent of the weight, less than 50 percent?
    Mr. Zhao. I do not have the number for that, but we 
should----
    Mr. Takano. I think it is fair to say that you would 
weight, your emphasis is on objectivity. We know that grades 
can sometimes be subjective, dependent on what school that the 
grade may or may not. Would you--is it fair to say you would 
weight the testing as more than 50 percent?
    Mr. Zhao. No.
    Mr. Takano. No?
    Mr. Zhao. For liberal arts, probably not that high. For 
STEM education, it should be very important.
    Mr. Takano. Okay. We are not talking about STEM education. 
We are talking about a liberal arts undergraduate program.
    Mr. Zhao. Yes.
    Mr. Takano. What is fair in that case?
    Mr. Zhao. Sure. I agree, it should not be weighted more 
than 50 percent----
    Mr. Takano. More than 50 percent, thank you. More than 50 
percent. That would mean that students that score the highest 
should be given greater preference. People who score in the top 
decile, you would say that is a fair system?
    Mr. Zhao. I support a holistic evaluation.
    Mr. Takano. Can you answer? Holistic. Your definition of 
holistic means that more than 50 percent be weighted----
    Mr. Zhao. No, no, no. I did not say ``more than.'' I said 
it could be less than 50 percent for liberal arts. I believe 
for STEM education----
    Mr. Takano. Okay. Well, so it could be less than 50 percent 
for liberal arts.
    Mr. Zhao. Yes.
    Mr. Takano. Other, other criteria. What other objective 
criteria are there? Grades, would you say, are objective?
    Mr. Zhao. Grades, yes. Grade is not consistently across the 
board.
    Mr. Takano. That is right, that is right. How would you 
measure leadership ability?
    Mr. Zhao. Leadership can be measured by student--like take 
leadership roles in different clubs. It depends. If you say--
management, absolutely it should be important. But if say, 
like----
    Mr. Takano. Would you say it is difficult to measure 
leadership objectively through some measure? Is there an 
objective measure for leadership.
    Mr. Zhao. No. That is why----
    Mr. Takano. I would conclude sir, that you really think 
that--you say several times that we need to return--actually, 
you criticize the fact that you say over 1,000 universities 
dropped the requirement for students to take an objective, 
standardized test, and you say this--you give that reasoning. 
You attribute that to the fact of the COVID-19 pandemic and 
George Floyd's tragic death. Do you think that George Floyd's 
death caused the universities to drop objective?
    Mr. Zhao. No.
    Mr. Takano. You stated, you say in the wake, I am quoting, 
``In the wake of COVID-19 and George Floyd's''----
    Mr. Zhao. The advocates took advantage of that. The 
advocates of racial equity took advantage of that.
    Mr. Takano. Well, my recollection is that the universities 
could not rely on the SAT because the tests could not be 
administered because of, you know, the proctoring and large 
numbers of students taking these tests was a danger to public 
health.
    Mr. Zhao. Yes, but it is time to restore that.
    Mr. Takano. You, but you want to attribute it to George 
Floyd's death. That is kind of a curious thing.
    Mr. Zhao. No. I said that advocates took advantage of that.
    Mr. Takano. Well, it is curious that you would say that 
George Floyd was--his death was the reason why universities----
    Mr. Zhao. No, I did not say that. Advocates of racial 
equity, you know, took advantage of that.
    Mr. Takano. You actually say it. It is in your testimony, 
sir. It is in your testimony. I want to point that out to you. 
It is in your testimony. Well, you know, there is many--it is 
more questions I would like to ask, but I do not think you are 
being completely genuine in your answer about how much you 
would rely on an objective quote-unquote, measure, quote-
unquote ``an objective measure'' such as standardized testing 
in the admissions process.
    Mr. Zhao. I was saying it would be part of a measurement--
--
    Mr. Takano. I yield back, Mr. Chairman.
    Mr. Zhao. It depends on the educational program, should 
give different rate, weight based on the educational program.
    Mrs. Foxx. The gentleman's time has expired. Mr. Grothman, 
you are recognized for 5 minutes.
    Mr. Grothman. First of all, I would like to thank all of 
you for being here today. I want to explore a little bit what 
is behind this drive for so-called diversity or this tremendous 
obsession with where one's ancestors come from. As I understand 
it, and we can ask really either one of you here, as I 
understand it, the drive for diversity is based on forms that 
people fill out as to what their ancestry is.
    For example, I have a Peruvian grandmother and was raised 
in a northern suburb here. I could fill out a form and say I am 
so-called Hispanic; correct? For the purposes, for diversity 
purposes I would be labeled Hispanic; correct?
    Mr. Zhao. Who did you ask? I am sorry.
    Mr. Grothman. Okay. We are here talking about diversity, 
and that diversity is defined ethnically, okay, on where 
somebody's ancestors came from; correct?
    Mr. Zhao. Yes.
    Mr. Grothman. Okay. Which means, for example, that if I 
apply to college and I have a grandmother who was from South 
America, I could check on the form that I am Hispanic; correct?
    Mrs. Foxx. Mr. Grothman, I think people are asking to whom 
are you addressing your question?
    Mr. Grothman. To Mrs. Somin there.
    Ms. Somin. Yes.
    Mr. Grothman. Right, and could you explain to me, because 
they say what they are looking for here is diversity. Now, I 
may have never been south of the border. I may not know a word 
of Spanish, but I am filling out the form that I am Hispanic. 
What type of diversity would I be bringing to that institution, 
or how would the fact that I had a Peruvian grandmother give me 
a different viewpoint that would enrich that institution?
    Ms. Somin. I think you put your finger on something very 
important, which is that universities have tended to emphasize 
skin color or ethnic diversity over true diversity of thought.
    Mr. Grothman. Is there any diversity there at all? I mean 
that is what I do not understand. If I have a Peruvian 
grandmother who for all I know died before I was born, the 
whole edifice is built on the idea that therefore I am going to 
bring a different viewpoint or something to the university.
    Ms. Somin. I agree that it is very concerning, that many 
universities seem to have relied on crude stereotypes, rather 
than looking at true individuality and at the full depth of an 
individual's experience in what they cast as diversity. 
Universities should care about individuals and individuality, 
rather than reducing students to their ethnic or racial 
identities.
    I am glad the Supreme Court ruled the way it did, so that 
we can get back to a focus on treating individuals as 
individuals.
    Mr. Grothman. Okay. Elizabeth Warren, when she wanted to 
become a professor at Harvard it was, she claimed that she was 
apparently partly Native American, apparently on the idea that 
therefore she would bring a different viewpoint to the faculty 
lounge. Could you even imagine wildly why she would--she would 
get preferences for that job based on presumably a different 
viewpoint in the world or something that she would know that 
other students would not know?
    Ms. Somin. I am not familiar with the details of how 
Senator Warren views her identity. However, I agree that it is 
concerning that these preferences tend to reduce individuals to 
stereotypes, rather than looking at the full range of what they 
bring to the table as individuals.
    Mr. Grothman. Is anybody that you know in their own life, 
when they have to make own hiring decisions, a doctor, a 
dentist, an accountant, anybody, take into account people's 
ethnic background or even ask what their ethnic background is?
    Ms. Somin. I agree that that would be unusual, and that for 
many individuals, individuals that value competence or what 
they bring to the job in their role as doctor or dentist, 
rather than racial stereotypes.
    Mr. Grothman. Mr. Squires, could you comment on that, I 
mean this idea that somebody's view of the world is based on 
where their ancestors came from and that they're a monolith? 
Could you, could you comment on that?
    Mr. Squires. Sure. I mean it is unfortunate that we have 
taken that perspective. This is one of the reasons why I 
believe quite frankly many black conservatives are easy targets 
in the media, is because the moment they say things that sort 
of the progressive left don't agree with, that they are 
attacked.
    Mr. Grothman. Is that part of the problem too? Is this a 
pretext design to force people of a certain ancestry to allow 
them to be promoted based on their ideology? I mean I can think 
of an example that I have heard of in my own life in just 
employment, where somebody was--a person of color let us say, 
and they were therefore educated, that they should have a 
certain viewpoint because they are of that ancestry. Is that 
part of the motivation here? Quick, a very quick quick answer.
    Mr. Squires. I will say this in general. I do not define 
diversity as having people of different skin colors who all 
think the same. To the extent that postsecondary institutions 
want to promote diversity, I think diversity of ethnic 
background is fine, diversity of region. It is particularly 
diversity of thought.
    I think those should be their goals, and not just the color 
composition in the classroom.
    Chairman Owens. Thank you. I would like to now recognize 
Ms. Jayapal.
    Ms. Jayapal. Thank you, Mr. Chair. Race-conscious 
admissions was a critical tool for diversifying classrooms, for 
reducing racial bias and addressing racial disparities in 
enrollment for students of color. Right wing activists 
unfortunately waged a decades-long challenge to the use of 
race, and unfortunately, they succeeded when the Supreme Court 
struck down this tool for achieving diverse classrooms by 
ending race-conscious admissions policies.
    My home State of Washington has had its own affirmative 
action ban unfortunately since 1998, restricting public 
colleges in considering race as an admissions factor. Despite 
the ban, half of Washington public college students are of 
color, and just as diverse as their private college 
counterparts.
    One way that our Washington public colleges did this is 
through their guaranteed admission policy. These policies 
promise seats to eligible students from local high schools if 
they meet grade or other academic requirements. It is not 
unique to my State. Colleges throughout the country have 
adopted similar policies without standardized testing 
requirements.
    Mr. Hinojosa, there may not be a policy that could help 
achieve racial diversity as the same level that race-conscious 
admissions has, but why are policies that eliminate reliance on 
testing helpful in diversifying student bodies?
    Mr. Hinojosa. Thank you, Congresswoman. First, you have to 
know a little bit about standardized testing, right? They are 
incredibly biased instruments. They were started way back based 
on eugenic science, you know, which has obviously been 
dismissed by the scientific community.
    They are poor predictors of college success and college 
readiness, so there is no real connection to that, and they are 
basically or essentially your test score is predicted based on 
your zip code and the quality of education that you have 
received or your socioeconomic status, I should say, rather 
than any other quality that an applicant would cover.
    I think it is imperative that universities, especially in 
light of the ban, which is always been followed with 
substantial drops in students of color, that they consider 
race-neutral alternatives as those in Washington, you know, 
because those are trying to take students for where they are 
coming from the high schools.

    There are lots of inequality still in K-12 education 
within, across all states, and I think it is imperative that 
they look to solutions that allow students to still show up 
with their talents and experiences and the like, and not just 
reduce them a single test score, as though that tells something 
about their talents.
    Ms. Jayapal. Very important. You know, it is interesting, 
but guaranteed admissions have even shown to help students 
graduate debt free. For example, Washington State University 
has a guaranteed admissions policy, and their low-income 
students can attend tuition free with our Washington college 
grant.
    Supporting students in that way I feel like should be non-
partisan, should be bipartisan, but instead the same right-wing 
organizations behind the affirmative action decision have also 
waged attacks against guaranteed admissions. They claim it 
could be a form, get this, of race-based discrimination. Are 
you aware of any of these policies considering race as an 
admission factor?

    Mr. Hinojosa. Absolutely not. I mean whether or not there 
are intentions to further diversity across socioeconomic 
status, across first generations, across language, etcetera, 
there are lots of qualities that even rural communities as 
well. I am most familiar with Texas' Top Ten Percent Plan, 
because I was at MALDEF for many years and worked on both 
policy and litigation around the Texas Top Ten Percent, and 
that has helped improve.
    Sometimes it doesn't work as well. This is how and why 
universities need the resources to be able to explore exactly 
how these race-neutral alternatives may impact it. These 
absolutely have nothing to do with racial discrimination. They 
are not treating any individual differently based on their 
race.
    Ms. Jayapal. In fact, your witnesses next to you have been 
arguing for not reducing people down to one factor. Seems like 
standardized testing should not be a factor that people get 
reduced down to. Alternative admissions policies do not--do not 
sound like a veiled racial quota like some on the right allege.
    In fact, guaranteed admissions seem to be the same type of 
race-neutral policies that these activists claim to want in a 
postsecondary education. Today, a witness argued that black 
students are harmed by policies that promise to uplift them, 
but instead result in mismatching them into academically 
challenging programs.
    As selective colleges reflect on their role in ensuring 
racial representation, should they be concerned about creating 
pipelines for under-represented students in their competitive 
programs?
    Mr. Hinojosa. Yes. Absolutely they should. If we are 
supposed to think of our universities as engineering, economic 
opportunity for all, then those universities need to be open to 
those students. The whole mismatch theory has already been 
debunked by real science. That soft science has been dismissed 
repeatedly by peer reviewed studies, and really should not be 
echoed in any chamber.
    Ms. Jayapal. Real science, what a concept. I yield back. 
Thank you, Mr. Chairman.
    Chairman Owens. Thank you. Thank you so much. I would like 
now to recognize Ms. Stefani.
    Ms. Stefani. Thank you, Mr. Chairman. The Supreme Court 
correctly decided Students for Fair Admissions v. President and 
Fellows of Harvard College when they held that Harvard 
College's admissions did not comply with the principles of the 
Equal Protection Clause embodied in the Civil Rights Act.
    Now Ms. Somin, previously Grutter v. Bollinger, assumed 
that race would be only treated as a plus in the admissions 
process. We saw at Harvard that in some cases, this was treated 
as a minus. Is this correct?
    Ms. Somin. Yes.
    Ms. Stefani. Can you expound upon that?
    Ms. Somin. Absolutely. When there are only a limited number 
of seats available at any given university, it is inevitable 
that a plus factor for some students will be a minus factor for 
others.
    Ms. Stefani. Particularly as a Harvard College graduate, I 
am very concerned that in 2013 Harvard's own Office of 
Institutional Research concluded that the university system was 
indeed biased with negative effects in the admissions process. 
Is it a fact, Ms. Somin, that they buried this report?
    Ms. Somin. Yes.
    Ms. Stefani. I have concerns in the wake of the Supreme 
Court's decision, in one of the mailings that was sent out to 
alumni. The headline was ``Harvard United in Resolve in Face of 
Supreme Court's Admissions Ruling.'' Do you have concerns about 
the compliance of the Supreme Court decision at some 
universities?

    Ms. Somin. Well, I am not familiar with that particular 
mailing from Harvard. I have seen similar statements from the 
heads of other university officials. In an amicus brief filed 
in support of the Coalition for T.J. cert petition, the Cato 
Institute documented many such examples of evasions. I am very 
concerned about lack of compliance, yes.
    Ms. Stefani. How would you identify potential lack of 
compliance?
    Ms. Somin. Statements from university officials would 
certainly be concerning. Changes in policy too, that do not 
seem to make sense in slight of academic qualifications, but 
that instead seem targeted at engineering a particular racial 
composition I would be concerned about.
    Ms. Stefani. Mr. Squires, I wanted to turn to you. In your 
testimony, you mentioned that it is universities themselves 
that benefit, not the students, from race-based discrimination. 
How does Harvard and how do other schools actively maintain 
internal incentives to keep discriminatory policies in place?
    Mr. Squires. Well, what I meant by that is that oftentimes 
universities will particularly focus, for instance, on the 
incoming class, the freshman class, and talk about how diverse 
it is. Part of the reason is because they, they want to receive 
the social benefits that come with being able to say, you know, 
look at all the black and brown students we have.
    Again, there is a lot less emphasis on the graduating 
class. This happens oftentimes when individuals will say they 
are choosing a particular candidate for a particular position 
based on race and sex, and what it does it saddles that person 
with the burden of feeling as if they are not being judged by 
their qualifications and allows the person doing the choosing 
to say how virtuous they are because of how progressive they 
are.
    Ms. Stefani. Mr. Squires, how will the end of 
discriminatory race-based admissions help the next generation 
of college applicants?
    Mr. Squires. I think one of the things that it would do is 
allow everyone on campus ideally to be able to understand that 
we are all here because we are based on the same set of 
qualifications. I can guarantee you that if in 2043, the 
highest-performing students on the SATs in terms of grades were 
black and Hispanic, no one on the other side of the aisle would 
say that too many of them are going to Harvard and Yale.
    If we believe in equality, it has to be equal across the 
board, which means everyone has to be judged by the same set of 
standards. If we want to consider socioeconomic status, that 
has to be the same across the board. What we cannot do is say 
for one group of students you can come in at this particular 
bar, and for another group of students you have to come in at a 
much higher bar.
    Ms. Stefani. Thank you. I yield back.
    Chairman Owens. Thank you. I would like to recognize Ms. 
Bonamici.
    Ms. Bonamici. Thank you, Mr. Chairman. I want to start by 
just noting that one of the witnesses contended that although 
qualified black applicants at highly selective schools have 
earned their place, they are a small number of the total black 
applicants who are admitted. I would like to enter into the 
record an article by Forbes titled ``Black Harvard and 
Princeton Students Graduate at Higher Rates Than Their 
Classmates Overall and Equally at Yale.''
    The article highlights Department of Education data that 
shows that 99 percent graduation rate for black students at 
Harvard, compared to 98 for all students. 99 percent graduation 
rate for black students at Princeton, compared to 97 percent of 
bachelor degree seekers overall, and 98 percent of Yale 
students graduate within 6 years, exactly the same for black 
Yale students. I would like to enter that into the record, Mr. 
Chairman.
    Chairman Owens. Yes, with no objections.
    [The information of Ms. Bonamici follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Bonamici. Thank you. Mr. Chairman, our Nation's 
colleges and universities play a key role in preparing people 
for the jobs of today and the jobs of the future. They are an 
important part of preparing, for example, the highly qualified 
workforce we need to maintain our Nation's technological 
leadership and advance our national security interests.
    In all of these areas, we benefit from the multiracial and 
multicultural student population that brings a wide range of 
perspectives and life experiences, including at elite colleges 
and universities. In fact, Chief Justice Roberts noted this in 
his point in the opinion in Students for Fair Admissions, 
saying that race-based admissions programs at military 
academies could further compelling interest at such academies.
    Mr. Zhao, do you agree that there are a range of factors to 
consider in advancing the United States national security 
interests and its global economic and technological leadership, 
including preparing a workforce that reflects our Nation's 
racial and ethnic diversity, and that is a yes or no question?
    Mr. Zhao. I think No. 1, colleges should promote the 
diversity of ideas, right. Students benefit from that. Also, 
our Nation would benefit recruiting the best and brightest, and 
give them best education.
    Ms. Bonamici. Yes. I am going to reclaim my time, and I 
just want to enter into the record again, Mr. Chairman, an 
excerpt from an amicus brief submitted in the case by major 
American companies, including American Airlines, GE, GM, Intel, 
Johnson and Johnson and others, titled ``American businesses 
rely on universities to create a pipeline of diverse leaders, 
equipped with the skills to thrive in the global marketplace.''
    Chairman Owens. No objection.
    [The information of Ms. Bonamici follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Bonamici. Thank you, Mr. Chairman. Mr. Zhao, in your 
written testimony, you mention your concerns with unfair 
admissions practices such as legacy preferences, and I am glad 
we share that concern. You also mentioned that legacy 
preferences are driven by, and I quote, ``racial equity 
ideologies.'' Are you aware that legacy students are 
disproportionately white; for example, seven in ten at Harvard? 
That is a yes or no question.
    Mr. Zhao. That is a historic fact, I believe.
    Ms. Bonamici. Okay, thank you. I want to followup on Mr. 
Takano's line of questioning, Mr. Zhao, because you discuss 
meritocracy several times. In your testimony, you talk about 
restoring meritocracy and do not destroy meritocracy. You 
appeared to define that meritocracy based on test scores and 
grades.
    The dictionary definition of meritocracy means based on 
ability and talent rather than wealth or social position. I 
submit that many people have tremendous ability and tremendous 
talent and potential and might not have high test scores or 
high grades. It seems like it is sort of counter to what you 
are saying, and I wholeheartedly reject the notion that 
meritocracy and racial diversity are somehow exclusive.
    Saying so is really tantamount to claiming that black and 
brown students are not academically talented enough, or as Mr. 
Squires claimed, mismatched. Now that view, that view ignores a 
whole range of assets, experiences and perspectives that black 
and brown students bring to our Nation's colleges and 
universities. In fact, do you know what the PISA scores are, 
international test scores?
    Mr. Zhao. Yes. I think Congresswoman, you misinterpret my 
statement. I was saying, you know, the test score should be one 
of the key criteria, not the whole----
    Ms. Bonamici. Yes. I understand that that is what you are 
saying. I am reclaiming my time, and I just want to note--I am 
reclaiming my time, Mr. Zhao. I just want to note for the 
record that in country with high PISA scores, like China, South 
Korea and Singapore, they are pretty low on entrepreneurial 
skills.
    In the United States, where we might on PISA scores have 
lower test scores, we have higher confidence and 
entrepreneurial skills. I think that is important to keep in 
mind.
    Real quickly Mr. Hinojosa, based on your understanding of 
the Supreme Court opinions, would targeted outreach and 
recruitment policies and other policies that are outlined in 
the recent joint guidance from the Department of Education and 
Justice run afoul of the opinion, as some of my colleagues have 
claimed?
    Mr. Hinojosa. Are they prohibited?
    Ms. Bonamici. Are they--would they run afoul of the 
opinion.
    Mr. Hinojosa. Absolutely not.
    Ms. Bonamici. All right, thank you, and I appreciate that, 
and I am just about out of time, so I yield back. Thank you, 
Mr. Chairman.
    Chairman Owens. Thank you so much. I would like to now 
recognize Ms. Foxx, Dr. Foxx.
    Mrs. Foxx. Thank you, Mr. Chairman. Thank you for leading 
this hearing today. For far too long, college admissions have 
pitted students against students based on race. This is 
undoubtedly a great stain on our postsecondary education 
system.
    Today should be a day when this Committee can look forward 
to a brighter future for all students. I am most encouraged by 
universities that have committed to change, and am proud that 
the University of North Carolina-Chapel Hill has chosen to look 
forward.
    On the day of the Supreme Court's decision, UNC Chancellor 
Kevin Guskiewicz shared with UNC campus community ``we will 
follow the Supreme Court's decision in all respects. That means 
race will not be a factor in admissions decisions at the 
university,'' and did not stop with just words.

    UNC is educating undergraduate admissions officers on the 
new legal standard. The university has reviewed admissions 
applicants for graduate degree programs and the university has 
made technology changes, so no one who makes admissions 
decisions has access to applicant's racial demographic data 
during the admissions season. It is my hope that many other 
colleges and universities are taking the same step.
    Mr. Squires, we know it is important to provide more than 
just access to college. Schools should be equally focused on 
helping students complete college. You mentioned in your 
testimony that highly selective schools use race-based 
preferences--using race-based preferences run the risk of 
creating a mismatch between the student and the university.
    How important is it for a student to be prepared to meet 
the academic rigor of a university, and what might a mismatch 
result in?
    Mr. Squires. Well, thank you for that question. It is 
incredibly important, particularly in the hard sciences. If you 
are an engineering student who comes into a school and let us 
say you scored a 650 on the SATs in the math portion, a very 
good score, but your peers on average scored a 750 and you are 
in a class that is taught at 750 speed, Physics or Calculus, 
you are going to fall behind.
    What some of the research has shown is that oftentimes 
black students are more likely to major in STEM disciplines at 
selective schools and then--but also more likely to switch out 
of those majors. Mismatch is an issue, but I want to say 
something really quick.
    I think part of the problem is that we have adopted in this 
country a college or bust, and particularly an Ivy League or 
bust attitude that makes people believe that if you do not 
attend college or an Ivy League institution, that you know, to 
some extent you are wasting your life.
    I think that is the wrong way to go about talking about 
higher education. Again, regardless of what school we are 
talking about or what institution we are discussing, at the end 
of the day the admission standards should be consistent across 
the board, and not based on a person's skin color or ethnic 
background.
    Mrs. Foxx. Well, thank you very much for that. Ms. Somin, 
do you have anything to add to that?
    Ms. Somin. I thought Mr. Squires gave a very nice summary 
of the basic concept, and how it applies in the engineering 
area. I would add that there has been similar empirical work 
showing mismatch effects in law and on law students eventual 
ability to pass the bar exam.
    There has been further work conducted by Eleanor Barber, 
showing that it affects minority students' ability to obtain 
graduate degrees and go into careers in academia. Finally, I 
would add that there is nothing that is unique about mismatch 
effects to the racial context.
    When Peter Arcidiacono and his colleagues at Duke 
University were studying mismatch, they found that students who 
received legacy preferences in admissions also tended to drift 
away from science and engineering because they tended to come 
in with lower average academic credentials than their peers.
    This is not about race. This is about differences in 
preparation, affecting your likelihood of success in a 
particular curriculum.
    Mrs. Foxx. Well, thank you very much for adding that about 
the legacy admissions. I think that is useful. Mr. Zhao, you 
talked about how you lived your American dream. You have worked 
tirelessly to represent AACE's mission to achieve equal 
education rights for Asian Americans. Why is this mission still 
important today, even after the Supreme Court's decision 
against race-based preferences in admissions?
    Mr. Zhao. Yes. It is very important that we notice, like 
U.S. Department of Justice and Education issue the guidance 
that even encourage the continued use of race and proxies at 
the national level. In California, the Democrats have 
reintroduced AC, ACA-7, try to reintroduce race back in the 
admission of the California school system. As Ms. Somin 
mentioned, in high schools around the country, they have 
assault on the meritocracy to cancel the admission test for 
Thomas Jefferson--exam schools.
    Basically unfortunately, the advocates of the, you know, 
racial diversity and the diversity, they have not given up. We 
have to continue on this fight.
    Mrs. Foxx. Thank you, Mr. Zhao. Thank you, Mr. Chairman.
    Chairman Owens. Thank you so much. I would like to 
recognize now Dr. Adams.
    Mrs. Adams. Thank you very much and thank you all for your 
testimony. Mr. Squires, you stated in your written testimony 
that the highest performing black applicants at Harvard have 
close to a 60 percent chance of being admitted and for black 
legacy students, that number rose to 99.
    When you are talking about high performance students, are 
you referring to their test score and the grades for 
admittance?
    Mr. Squires. Yes. That was in reference to how Harvard 
categorizes and breaks down the scores of students by decile. I 
was talking about the ninth and tenth decile. They, they use 
test scores and grades, correct.
    Mrs. Adams. Okay. I just want to just note that because a 
student is not ``high-performing,'' and when we are talking 
about affirmative action, it does not mean that they do not 
deserve the chance to have access, and that is really what 
affirmative action provided for these young people.
    Let me move on. Doctor or Mr. Hinojosa, the media has 
portrayed the holding in this case to be that affirmative 
action has completely been overruled. Some of the witnesses 
here have interpreted the opinions holding to be even broader, 
eliminating any consideration of race in higher education at 
all.
    Your oral testimony gave us your legal take on the Court's 
holding. As an advocate who represented UNC student intervenors 
at the Supreme Court, what does this holding mean to those 
students and to their interests at UNC?
    Mr. Hinojosa. It means that racial equity still matters in 
America. We hear about lots of testimony here today about 
individuals being treated individually. For 300 plus years, 
individuals were not treated individually, and those people 
were black, Native American, brown students among others, even 
Asian American students for far too long, and they should have 
opportunity.
    Just because you cannot consider race, so let us remember, 
the decision says that the way that Harvard and UNC considered 
race was unlawful. It does not mean that you still cannot 
pursue diversity in its broader breadth, including racial 
diversity, through race-neutral means. What they were 
concerned, and Chief Justice Roberts was specifically concerned 
with, was a student getting an automatic bump just because of 
their race.
    That actually was not really happening in many places, not 
even at Harvard and UNC if you look at the real record, but 
that is what they suggest, you know, are these race-based 
considerations. For the students, it means having all their 
talents, all their experiences fully evaluated and them being 
able to express this in their applications and have that fully 
considered, and they should not be censored.
    Mrs. Adams. Okay, I agree. You stated also, that increased 
funding levels for historically black colleges and 
universities, HBCUs, Hispanic-serving institutions, tribal 
colleges and universities, Asian American and Pacific Islander 
institutions, that they may see a dramatic increase in 
applicants and admitted students who are no longer able to gain 
admission into colleges and universities that severely restrict 
the use of race.
    Can you talk a little bit more about the impact that 
restricting the use of race in admission will have on these 
institutions, and the ways in which these HBCUs, HSIs, TCUs can 
prepare the universities for the influx of applications?
    Mr. Hinojosa. Sure. Typically, what follows bans on 
affirmative action, we know this from Oklahoma, Michigan, 
California, Texas back in 1997, you have large dips in under-
represented students of color. Some of that is because students 
are no longer applying to universities, because they do not 
feel like they might not get it, so they are undermatching 
themselves to other institutions.
    Others want to feel more welcome, and they may not feel as 
welcomed at certain universities, especially State flagships 
and other universities as well. It is imperative that HBCUs and 
other institutions that you named, and we name in our report, 
they are going to be experiencing a large influx of 
applications from students who want to go there for lots of 
incredibly important reasons.
    They are incredible institutions and show a lot of promise. 
They will increase with the applications they receive because 
students are not applying to other colleges that they may end 
up applying, but instead apply to HBCUs and the like.
    Mrs. Adams. Okay. Just quickly, how can admission officers 
comply with both the SSFA holding and Title IV?
    Mr. Hinojosa. The holding in what?
    Mrs. Adams. The SSFA holding and Title, Title VI? Are there 
any strategies that--or policies that can widen this area for 
them?
    Mr. Hinojosa. Yes. We have many of those in our written 
testimony, and the Department of Education/Department of 
Justice also lists a number of options. The door is not 
completely closed to ensuring equal opportunity for all.
    Mrs. Adams. Thank you. I am out of time. Thank you, I yield 
back.
    Chairman Owens. Thank you. I would like to recognize Mr. 
Good.
    Mr. Good. Thank you, Mr. Chairman. Thank you to all of our 
witnesses. Mr. Zhao, a review of the 65 universities that are 
in the so-called Power Five athletic conferences found that the 
typical institution has 45 DEI staff members on its payroll. 45 
of the typical Power Five institutions, which is four times the 
typical number of employees devoted to supporting students with 
special needs.
    By the way, colleges are increasingly offering, as you 
know, DEI programs of study for students. Given this growing 
number of DEI offices and positions on campus, how might that 
impact discrimination in other aspects of campus life?
    Mr. Zhao. I want to tell you, China, in China it has been 
similar since the Cultural Revolution. Colleges and 
institutions established revolutionary committees to distract 
the institutions, right? We, I think all, you know, in 
educational institutions, should be going back to its basics. 
Its goal to really educate, to make sure the best and 
brightest, and provide the best education, instead of like, you 
know, promoting some ideology. That is my take on that.
    Mr. Good. Focus on education, academic excellence. Is there 
any return on investment for this spending on DEI positions 
besides raising tuition costs for the university?
    Mr. Zhao. I have not seen that. I have seen more negative 
impact, just like the revolutionary committee did to China 
about 50 years ago.
    Mr. Good. Thank you. Mr. Squires, I know this has been 
talked about today, but can you just characterize the 
difference for us again between equity and equal opportunity? 
What is the difference when you use that term ``equity'' and 
what the goal of that is, versus equal opportunity?
    Mr. Squires. The way equity is typically used in sort of 
common parlance is suggesting that people from all different 
types of backgrounds end up in the same place. The actual 
definition of equity is the consistent and impartial 
application of a particular standard.
    The equality of opportunity, again to me you are talking 
about being able to bring people from different backgrounds, 
and again, subject them to the same types of standards. For 
instance, a city may say we want to see SAT scores improve. We 
will provide free testing at high schools across the city. 
Those types of things provide equal opportunities.
    Equity is when you turn around on the back end and say, and 
again particularly in the college context and say okay, we see 
that everyone is not coming in with the same types of score. 
Now we are going to socially engineer the demographic balance 
on the back end.
    Mr. Good. I appreciate that, and I would submit that the 
focus on equity is perpetuating the harm done from previous 
years of discrimination and a lack of equal opportunity. Would 
you suggest that those who support equal opportunity should 
also support school choice?
    Mr. Squires. Absolutely. I believe school, education 
choice, whether through the expansion of charter schools, 
vouchers, and particularly education savings accounts have to 
be one of the highest priorities as we move forward in a world 
post-preferences.
    A lot of people like to talk about race as it relates to 
higher education. Here is how the interaction of race, class, 
education, and politics actually works today. Black 
progressives, particularly politicians and the media, will rail 
against school choice on the K through 12 level, particularly 
vouchers, oftentimes being supported by teachers' unions. They 
send their own children to private schools.
    Mr. Good. Right.
    Mr. Squires. Right. They summer on Martha's Vineyard, and 
then when it is time to apply to Harvard, they turn around and 
cite education disparities in the inner city to justify why 
their children need racial preferences. To me, if anyone wants 
to talk about race, education, and outcomes, and they are not 
for education choice, I think that is a big problem.
    I would submit, I will make a quick policy suggestion for 
the Committee's hearing. I think any elected official, 
regardless of their jurisdiction, who stands against school 
choice should be required to send their child to the lowest-
performing school in their district, because if the schools are 
not good enough for your child, then they should not be good 
enough for mine neither.
    Mr. Good. Well said, Mr. Squires, and I encourage everyone 
on the Committee to support my Choice Act, which allows Federal 
dollars to go and follow the child to the educational 
opportunity of their choice, the parents' choice, and 
particularly obviously for those who are of lower income.
    Last question. Ms. Somin, thank you for being with us 
today. Fairfax County in Virginia, the State where I am from, 
has moved toward equitable grading. Could you talk briefly 
about that equitable grading and the harm that is being done 
from that?
    Ms. Somin. I am not familiar with the policy.
    Mr. Good. Okay. Well equitable grading is, its stated goal 
is to combat institutional bias and eliminate racial 
disparities in grade outcomes, and it removes grade penalties 
for late assignments. I see I am out of time as well. I yield 
back, Mr. Chairman.
    Chairman Owens. Thank you so much, appreciate that. I would 
like to now recognize Mr. Courtney.
    Mr. Courtney. Thank you, Mr. Chairman. Mr. Hinojosa, one of 
the traditional strengths of our system of law is common law as 
well as legislation, is the principle of legal certainty, which 
is that to the--it has been expressed is that the law must be 
accessible and so far as possible intelligible, clear and 
predictable.
    I mean people rely, in terms of just organizing their lives 
and their enterprises, in terms of just having clear signals 
from courts and legislative bodies, in terms of following what 
I think has really always been a really important and positive 
principle.
    Your testimony on page five notes that for those who think 
that the Court made the admissions process completely race 
blind, in fact as you point out, there is language in there 
that suggests that there still is under the law the ability to 
conduct admissions in terms of how race has affected an 
applicant's life, be it through discrimination, inspiration or 
otherwise.
    I have been--I was home in August and talking to some 
educators in higher education, as well as, you know, other 
secondary school institutions in Connecticut. I have to tell 
you, the principle of legal certainty was completely trampled 
by this Court.
    Setting aside all of the political arguments that are here 
today, I mean, the fact of the matter is that if you are an 
admissions office right now trying to figure out, you know, 
with this decision about how to make choices in terms of 
applications, I mean it is really almost just chaos in terms of 
just trying to decipher this.
    I mean they are talking about actually bringing on legal 
counsel to really screen sort of what the Court actually left 
them with in terms of this decision. I was wondering, again I 
know the DoE is talking about trying to get some guidance out 
there.
    The fact of the matter is this Court has really left a mess 
as a result of this decision, regardless of how people feel 
about the merits of affirmative action.
    Mr. Hinojosa. Yes, and that mess started with the Court's 
own unjust, tortuous interpretation of the Equal Protection 
Clause, even suggesting that Brown v. Board somehow would 
support excluding black and brown students, highly qualified 
black and brown students from our Nation's most selected 
institutions.
    That is sad, you know. I carry a copy of the same pocket 
guide that I got from the University of Texas School of Law 
when I went there back in the 1990's, and but what is most 
troubling about the more recent opinion is that you have Chief 
Justice Roberts almost trying to dictate educational policy.
    He is a chief justice. He should limit his opinion to the 
issues that are before him, but he did not do that, and he 
started trying to write, you know, policy, and which has thrown 
confusion. It is been made even worse by organizations like 
Students for Fair Admissions, suggesting that the whole process 
has to be race blind.
    That absolutely is not. If Chief Justice Roberts, just as 
an example, if Chief Justice Roberts says yes, you can consider 
race as a notion of resilience and the like, right, and 
overcoming discrimination. How can you talk about racial 
discrimination, overcoming racial discrimination and somehow 
have to divorce race from overcoming race discrimination.
    It does not make sense. When you talk to lawyers, they will 
tell you that is what the opinion means, and that is why we 
have some chaos that has been created in many board rooms at 
colleges and universities, and in K12.
    Mr. Courtney. Well again, this seems to be a trademark of 
the Roberts court. I mean if you look at the Dobbs decision, I 
mean it is the same situation that is happening in hospitals 
and clinics all across the country, where OB/GYNs are feeling 
the need to have legal counsel to advise them about how to 
practice medicine, because again, it is just they created all 
these cross-currents of possible criminal liability, as well as 
professional liability in terms of just stepping outside lines 
that are not clear, in terms of just how they are supposed to 
practice medicine.
    Again, moving forward though, I mean it is clear that in my 
opinion, Congress needs to act to set some clarity, so that we 
can again allow our legal system to achieve a goal that has 
always been, you know, recognized as essential.
    Mr. Hinojosa. Yes, and we need to make sure that students 
understand that their full experiences should be represented, 
and that universities shouldn't shy away from that. In fact, 
they might be running afoul of students' First Amendment and 
Fourteenth Amendment rights if they try to censor students' 
stories simply because they're related to race.
    Chairman Owens. Thank you. I would like to now recognize 
Mr. Moran.
    Mr. Moran. Thank you, Mr. Chairman. Ms. Somin, I want to 
come to you just for a little bit of response for Mr. 
Hinojosa's criticism of Chief Justice Roberts. When you look at 
his writings, and he said in particular in the most recent 
opinion, where folks were talking today in the--about the 
dissenting opinion, that he said the dissenting opinion defends 
``a judiciary that picks winners and losers based on the color 
of their skin.''
    What would be the consequences if our judicial system 
applies different laws based on race?
    Ms. Somin. I agree that that would be very concerning. 
Individuals should be treated as individuals when they come 
before the law, and a judiciary that does not do that would 
be--I would be very concerned about it.
    Mr. Moran. Last week, the Students for Fair Admissions 
filed another lawsuit against West Point Military Academy, that 
is the military academy at West Point and the Department of 
Defense, citing the military academy's use of race as a 
preference in admissions. In fact, West Point publishes racial 
composition goals for every class, and these goals are adjusted 
yearly to reflect enlisted population.
    During the Students for Fair Admissions Harvard and UNC 
oral arguments, what was the discussion around the military 
academy's race preferences?
    Ms. Somin. There was a discussion concerning whether this 
was the kind of compelling interest that would evade scrutiny, 
that would allow the military academies to use race.
    Mr. Moran. Given the Students for Fair Admissions decision, 
how might the courts rule in the West Point Military Academy 
lawsuit? Do you have an opinion about that?
    Ms. Somin. The Students for Fair Admissions decisionmakes 
it clear that what is known as strict scrutiny applies to the 
use of race in admissions everywhere, including the military 
academies. Any use of race must serve a compelling interest and 
must be narrowly tailored to serve that compelling interest. 
That is, the institution cannot use race any more than is 
necessary.
    In the military context, what that compelling interest 
might look like might look a little different than the civilian 
context. Nonetheless, given the toughness of the standard 
enunciated in Students for Fair Admissions, I am skeptical that 
the military academies will be able to meet that heavy burden.
    Mr. Moran. Mr. Squires, I want to come to you now for a few 
questions if you do not mind. In an article that you and your 
colleagues from Heritage wrote titled ``Created Equal, A Road 
Map for an America Free of the Discrimination of Racial 
Preferences,'' it states ``Any racial preferences will provide 
opportunities for policymakers to focus on often-neglected 
factors that contribute to student success.''
    My question to you generally is what are those neglected 
factors that you were referring to and your colleagues when you 
wrote that article?
    Mr. Squires. I believe what we were referring to in our 
special report that came out after the decision particularly 
was around family and family structure, and as I said, the 
research is conclusive at this point, that children raised in 
two parent homes by married parents tend to do better on a host 
of educational and social outcomes, better than any other 
family arrangement.
    For some reason, this is not seen as a priority oftentimes 
with respect to our policy, and I think it is something that we 
need to discuss more. Obviously we cannot fix this in one 
particular generation, but that is part of the reason I talked 
about the success sequence, so that children way before they 
start a family, understand that they have a sense of agency.
    If they finish school, get a job, get married before they 
have children, their chances of being in poverty will be in the 
single digits. I think it is something that every student 
should know before they graduate from high school.
    Mr. Moran. You anticipated my very next question, because I 
wanted to raise that quote from your testimony, because it was 
astonishing to me to look at that and know that that is in fact 
a great recipe and a great formula to getting out of poverty, 
is to stay in school, to secure stable employment, to get 
married before you have children.
    Those factors are much more prominent than anything else, 
and so that traditional family environment is so important to 
raise our kids up and to allow them then to succeed, and to do 
much better than we did. That was one of the things as I look 
back on my upbringing, that I credit a lot of where I am today 
to is----
    Certainly was not money, certainly was not influence, but 
it was the stability and the security of loving parents that 
guided me through that time, to understand that my decisions 
would help me get further in life by working hard and by 
serving others and by instilling good values in me. Would you 
agree that that is a good formula ultimately to lead to success 
in this world?
    Mr. Squires. Absolutely. If your child--if the first time 
your child is read to is when they start on their first day of 
kindergarten, something has gone wrong, regardless of what skin 
color that child is. Home environment matters a great deal as 
it relates to education, and I think of my own father, who was 
the chief educational officer in our home, who stayed on me 
consistently because he refused to allow me to settle for a B+ 
when he knew that I could be an A student.
    Students need obviously quality schools with dedicated 
teachers and administrators, but they also need to have the 
types of home environments that cultivate a sense of wonder and 
a lifelong love of learning.
    Mr. Moran. I love what you just said, and I will yield back 
by finishing, by saying this. I started my day out this morning 
talking to my first grader and my second grader back home on 
FaceTime, getting them to show me the books they had checked 
out from the library and talking about their reading levels, 
and what they needed to accomplish this week in school. It is 
very important. I yield back.
    Chairman Owens. Thank you. I would like to now recognize 
Ms. Leger Fernandez.
    Ms. Leger Fernandez. Thank you so very much, Mr. Chairman 
and Ranking Member and our witnesses. In New Mexico in Revo 
Mexico, we pride ourselves on our diversity. It is the 
foundation of our state's unique and beautiful culture and 
actually looked at across the country as what could a diverse 
nation look like. Well, it looks like New Mexico, and we are 
very proud of that.
    New Mexico's colleges and universities, while they also 
reflect that diversity, we have 30 minority serving 
institutions including four tribal colleges.
    I am here to say it wasn't always that way. Latino and 
Native American communities have to fight for their rightful 
place in our higher education system, because we know it is not 
just how much love you have at home, it is how much education 
you can get to go on and accomplish the things like sitting in 
Congress.
    Under the GI Bill, this is a story I say often, because 
people do not think about it when applied to New Mexico. Under 
the GI Bill, my father and other Hispanos and Jews could go to 
our local university. Guess what? The white only fraternity 
barred them, banned them.
    We can see that there has been an indisputable State of 
mind, active racism, active discrimination. What happened to 
that university? It became the country's first university with 
a Latino president at its head, and at UNM, which is our 
flagship university, it went and--went from about a 31 to about 
a 51 percent Latino population in 25 years because they worked 
at it. They wanted their universities to reflect their State.
    You have to put in the hard work to make sure that our 
institutions reflect like I like to quote John Adams, in 
miniature the diversity that is our country. That is our 
Founding Father who recognizes the importance of diversity. We 
have seen study after study that economic, education, 
Democrats, democratic benefits that flow when you have 
diversity, that in so many different ways the Supreme Court and 
Students for Fair Admissions v. Harvard ignored that fact.
    I want to thank you, Mr. Hinojosa, for the amazing work you 
did to bring those benefits to life. The decision is the 
decision. There are those of us who do not agree with it, but 
we must live by it. That does not mean that we cannot still 
work to diversify our educational institutions.
    Can you tell us in Congress what we can do to make sure 
there is more diversity at our colleges?
    Mr. Hinojosa. Yes, and I do want to say I am a New Mexico 
State University grad, to go Aggies.
    Ms. Leger Fernandez. Oh, maybe not flagship. One of our 
important universities, how about that?
    Mr. Hinojosa. The other flagship, as we like to say. There 
are lots of options for universities, and they have to think of 
things comprehensively, right? Affirmative action was never the 
silver bullet, right? It was not going to get us where we 
needed to go. Again, it was not these automatic admissions. 
There are plenty of extremely talented students across races 
and backgrounds who have been admitted through affirmative 
action programs.
    Now we do not have that as an option at most universities. 
We still have it available at the military academies and 
possibly others for other reasons. There are still other 
opportunities. There are the analyzing race-neutral programs 
such as percentage plans that were mentioned earlier in 
Washington State.
    Students attending their schools should be able to attend 
their State flagships. These are State flagships that should be 
representative of the State. We are not talking about racial 
balancing; we are talking about access in a true democracy. We 
are talking about need-based financial aid that needs to be 
increased considerably, climate support.
    These DEI programs that were mentioned earlier, those are 
actually pivotal to providing the support and building a 
healthy, inclusive climate that does help broaden perspectives 
across campuses and the like. There are many things that 
Congress can do. We have a lot of options in our written 
testimony about how Congress can also help move the bar to 
ensure that racial equity is not written out of policy in our 
universities and institutions.
    Ms. Leger Fernandez. In your written testimony that you 
just referenced, you also pointed out the importance of Pell 
grants, because Pell grants will help students from diverse 
socioeconomic, diverse racial backgrounds but with 
socioeconomic need access. I would point out that House 
Republicans proposed earlier this year to reduce Pell grant 
funding by 22 percent.
    Imagine that, 22 percent, 80,000 Pell grant opportunities 
go away. I am going to have to ask you to perhaps elaborate on 
that in writing, because I have run out of time. That is a way 
where we are cutting opportunities across our country for our 
most deserving students. Thank you, Mr. Chairman. I yield back.
    Chairman Owens. Thank you. I now recognize Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Squires, you 
mentioned that race should not be the only measure of 
diversity. I think everybody would agree with that.
    You want to look at all kinds of diversity. Does the 
college have the right to try to have a truly diverse college 
student, students because they are going to learn from each 
other and they are trying to be prepared for a diverse 
workforce. Does a college have a right to try to have a diverse 
student body?
    Mr. Squires. I think colleges have a right to determine 
admission standards. Again, I am not opposed to a diverse 
student body. I am actually very much in favor of a diverse 
student body. Again, part of that may be ethnic. Again, a big 
part of it is in terms of----
    Mr. Scott. There is value, there is value to diversity of 
the student body because students are learning from each other, 
and you are not going to learn much from a socioeconomically 
homogeneous student body.
    Mr. Squires. Well, a selective college has 100 students 
equally broken up into black, white, Hispanic and Asian, and 
all 100 went to Sidwell Academy. I am not sure how much 
diversity you are actually going to get. You may have people 
who look differently, but in terms of their life experiences 
they very much may be very much the same. I think----
    Mr. Scott. They should try to diversify that?
    Mr. Squires. What I am saying is people on the outside will 
look at say this is very much a diverse class, and what I am 
saying is the people will look the same.
    Mr. Scott. Okay. You can define diversity, but I think you 
are trying to say we should have as diverse as possible. Ms. 
Somin, you mentioned that the military academies should be 
diversified. Can you show why they need to be diversified and 
why that argument would not apply to other colleges?
    Ms. Somin. What I said was that the military, the 
compelling interest in diversity may look a bit different in 
the military context than the civilian context, that said 
strict scrutiny still applies to any cases involving the 
military academies.
    I am not certain that the military academies will be able 
to prove though that their use of diversity is in fact a 
compelling interest, and that the way that they are using race 
is narrowly tailored to serve that compelling interest.
    Mr. Scott. You do not think diversity in the military 
academies is a compelling State interest?
    Ms. Somin. That will need to be developed in the course of 
litigation. I agree that whether it is compelling, the analysis 
will look a little bit different than in a civilian context. 
The legal standard they have to meet is still high.
    Mr. Scott. If a plaintiff could prove that an admissions 
test is in fact discriminatory, should it be allowed?
    Ms. Somin. If a plaintiff can prove that a test is 
discriminatory, intentionally so, then that violates Title VI 
and possibly the Constitution at a public university.
    Mr. Scott. A legacy program where the State like Virginia 
had a policy that essentially prevented most African-Americans 
from attending predominantly white institutions like UVA and 
Virginia Tech, would a legacy program where they would not 
benefit having grandparents that went there, should that legacy 
program with a discriminatory impact against African-Americans 
be allowed?
    Ms. Somin. Under Title VI, a program has to be 
intentionally discriminatory to be prohibited. The plaintiffs 
or challengers would have to show that a particular program is 
intentionally discriminatory.
    Mr. Scott. If it is discrimination but not intentional----
    Ms. Somin. I would distinguish between programs that have a 
disparate impact, that is those that have an adverse effect on 
a particular racial group, but that are not necessarily 
intended to be discriminatory. Title VI is not a disparate 
impact statute. It is what is known as a disparate treatment 
statute.
    Mr. Scott. Mr. Hinojosa, we know these tests are 
discriminatory, that legacy is discriminatory, athletic 
admissions can be discriminatory. Wealthy donors get in at a 
higher rate. When people talk merit, how fair is it to have 
merit without offsetting all those discriminatory impacts with 
affirmative action?
    Mr. Hinojosa. Yes. I think certain parts of America, some 
of which are represented here today at the hearing, have such a 
jaded view of what meritocracy really is about and what merit 
is about, trying to suggest that it is anchored in many of 
these systemic, oppressive barriers such as legacy admissions 
and such as standardized test scores that really tell you 
nothing else about students.
    They are simply used as barriers to admission, to prevent 
certain people, including the black and brown communities, 
Native American communities, from attending certain 
universities. It helps them excuse it and perhaps to sleep a 
little better on it, suggesting these are objective.
    Mr. Scott. Sorry. My time is up. Well, you indicated that 
the Supreme Court did allow race to be used to a certain 
extent. Can you elaborate on that?
    Mr. Hinojosa. Yes. The Supreme Court held not that 
affirmative action itself is completely done away with. Race-
based admissions programs in the way that the Supreme Court 
suggested that they are operated, cannot, you know, continue in 
the way that Harvard and UNC were doing it.

    They can occur still at military academies, because of 
their national security interests. There might be other 
interests that are defined as compelling. The Court said that 
the way that Harvard and University measured their compelling 
interest in diversity was not measurable, that it was not 
linked to their specific goals, and that they had no end time 
limit on. If a university was to identify compelling interest, 
for example if a university wanted to make sure that all its 
doctors were leaving a medical school community and they were 
leaving certain parts of the community----
    Chairman Owens. I am going to have to interrupt. You have 
to close up. Thank you so much, appreciate that----
    Mr. Hinojosa. All right. Thank you, Chairman.
    Chairman Owens. Okay. I would like to first of all thanks 
again, everybody, for answering those questions, and I wouldd 
like to now recognize Mr. Scott for his closing statement.
    Mr. Scott. Thank you. Mr. Chairman, I think it is clear 
that colleges have a right to have a diverse, and diverse in 
many ways student bodies. They learn from each other. The 
experience of a 4-year on campus liberal arts degree is such as 
that you come out as a different person, and a lot of that 
transformation has nothing to do with what happens in the 
classroom.
    It is working with the other students, and if you have a 
homogeneous student body, you are not going to learn nearly as 
much from your students as you have from if you have a diverse 
student body, and that is part of the educational process.
    We have heard some of the solutions, school choice. Let me 
just say just very briefly. School choice helps a few people 
that can choose, but it diverts money from the overwhelming 
majority and some of us are trying to help all students, not 
just a privileged few. The so called merit that we are talking 
about, and Mr. Hinojosa has gone into good detail on this, most 
of that is in fact discriminatory.
    The standardized tests have been studied and they have 
discriminatory impact against African-Americans. You can say 
whether it is intentional or not, but that is a fact. It is not 
fair to have a discriminatory test, discriminatory legacy 
admissions when African-Americans could not, because of public 
policy, go to predominantly white institutions in Virginia, and 
therefore cannot today benefit by having a grandparent that 
graduated from UVA or Virginia Tech.
    That should not be a factor. The fact that your parents can 
have, make huge donations, I think the wealth disparity between 
black and white is well-known. All of those factors have 
discriminatory impact, but they were offset by affirmative 
action.
    Now without the affirmative action, all you have are these 
discriminatory impacts, and that is a clear violation of Title 
VI. It is discrimination, and we have to do something about it. 
Now I do not know what we are going to do about it. You have 
got to have some kind of standards.
    If all the standards you come up with are discriminatory, 
that is a problem. If you want to know what to do, ask the 
Supreme Court. They are the ones that came up with this idea, 
not me. You cannot end up with just factors that have a 
discriminatory impact and then try to hide behind the fact that 
it was not intentional and therefore not actionable under Title 
VI because we don't have a private right of action.
    I want to thank our witnesses, particularly Mr. Hinojosa, 
who pointed out the discriminatory impact of what is left after 
affirmative action, and the challenges we have to make sure 
that equal opportunity is alive and well.
    Chairman Owens. Thank you again for our witnesses here. 
This is such an important topic. Let me just kind of set the 
record straight, for those who are not aware of this. Failure 
is not in the DNA of black Americans. Black Americans can think 
as well, if given the same opportunity, as any other American.
    For us to enter this conversation thinking that black 
Americans because they are black and because they had slavery 
200 years ago are inherently less intelligent is indeed racist. 
Do not, and I will kind of go back to a real quick point.
    My dad was born in 1928. Segregation was very strong in 
those days. His dad was--dropped out of second-third grade and 
went on to be a business owner. My dad in 1950 got his Ph.D. at 
Ohio State in Agronomy and went on to make circles around men 
and women at that same time that were not his color because he 
was taught about meritocracy.
    That generation was taught that if you want to go out and 
win, you work harder, you study harder, you run harder, and you 
do not feel sorry for yourself if bad things do happen. You man 
up, woman up, grit and get through it. Today, if that same 
success story would be to my dad, they would say he got through 
because of affirmative action, which is an insult to him and 
everybody else before and after him.
    We have an issue, a problem right now where black 
Americans, 75 percent in 2017 of black boys in the State of 
California could not pass standard reading and writing tests. 
Do you think they'll ever sit in this room succeeding? Do you 
think they will ever go to college or whatever and succeed? No.
    Just recently, a couple of days ago, Baltimore, 13 
districts, zero proficiency in math. Now affirmative action 
could get them to a college, but guess what is going to happen? 
They are going to fail. They are going to be upset. They are 
going to think the system is against them because they have not 
been prepared.
    We are going to look at the Super Bowl game this coming 
year. No one will ever talk about the fact that it is 
discrimination and meritocracy, because they know the best, the 
best talent is on the field that day. Those guys who got on 
that field, whether they are black, white, Hispanic, it does 
not matter how tall or short they are.
    They are there because they have proved themselves to be 
the best prepared to win the game. We can do the same thing 
intellectually. Do not allow this country to go down that 
pathway of thinking because of our color, we cannot think, we 
cannot compete.
    It is very, very--what is the word I am looking for--
insulting. I want to thank you guys for this conversation. This 
very helpful. I want to thank my colleagues.
    For America to have this process of thinking through this 
what we are going through right now, for us to be on the other 
side of affirmative action, which for 60 years has been a 
detriment to too many good people, we are now in the process of 
seeing how can we now make sure that we have a level playing 
field, that our kids come out of the school system they can 
compete, feel good about themselves and when they get to that 
position of success, never feel they have to apologize because 
they were given a head start because of their color.
    I am excited about this process, and we are going to find 
some solutions. I would like to again thank our witnesses for 
taking the time to testify before the Subcommittee today, and 
without objections and no further business, this Subcommittee 
stands adjourned. Thank you so much.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    [Whereupon, at 12:07 p.m., the hearing was adjourned.]

                                 [all]