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    Transcript for A Conversation With Ted Shaw


    DAVID J. SKORTON: Welcome to “Beyond the White Coat.” I’m David Skorton, president and CEO of the Association of American Medical Colleges. Today we’ll hear from two legal experts, including a civil rights attorney from the University of North Carolina — one of the two institutions at the center of the U.S. Supreme Court’s recent decision on race-conscious admissions. Ted Shaw is the director of the University of North Carolina Center for Civil Rights. Previously at the University of Michigan, he helped initiate a review of its admissions policy that was later upheld in a case by the Supreme Court. Ted is joined by the AAMC’s Chief Legal Officer Frank Trinity, JD, to talk about the Supreme Court’s most recent ruling on race-conscious admissions. Frank and Ted, it’s all yours.

    FRANK TRINITY: Welcome, Professor Shaw. We're delighted that you're on our podcast. We're a medical organization, so it's unusual to have a lawyer. You're not the first lawyer. My colleague, Heather Alarcon, was the first, but I think you're the second guest who's a lawyer. So, on that note, I wanted to ask you, how did you decide to become a lawyer and how did you decide to become a civil rights lawyer?

    TED SHAW: Well, first, I appreciate you calling me Professor Shaw, but Ted is fine, and I'm glad to be with you. I'm honored to be with you. How did I become a civil rights lawyer? How did I become a lawyer and a civil rights lawyer? Actually, I wanted to do civil rights work first, and I thought a lawyer, being a lawyer, was the best way to do that work, given when I came along and what was going on. So, that's how I ended up going to law school. But I'm a child of the civil rights era. And for me the most important thing that was happening around me during my early years was the civil rights movement. And so that’s what led me to law school.

    TRINITY: Right. I wanted to ask you about your time at the Legal Defense Fund, which is the country's preeminent civil rights law firm. You were the fifth leader of the LDF. The first was Thurgood Marshall. Can you talk about your experience at LDF?

    SHAW: I can, of course. Although I'm compelled to say that — I am very much aware that for me — I was at the Legal Defense Fund for about 25, 26 years in total. The best part of being at the Legal Defense Fund was doing the work, the cases, for me. Yes, I was the fifth director counsel. By the time I was in that position, in some ways that job had changed significantly to run any organization. The primary responsibility of the leader of the organization is the board, it's administrative work, etc.

    So, for me, working at the Legal Defense Fund — I love being a litigator and doing the cases. And it was an extraordinary place to work. My colleagues were extraordinary people. And when I say that I'm not just talking about the lawyers. I'm talking about the full staff. And we were in the center of many of the most important issues, from my perspective, of our time. And it's a great organization and institution. You're right. It's the first public interest law firm in the country. And now there are so many. And when I say so many of the public interest law firms there are the ones that are progressive or liberal. There are very conservative ones. But it set the mold. It set the pattern. And it was other than my children and family, my wife — when I, when I look back at the end of my life, if I do any looking back, the thing I think I'll be most proud about is my years at the Legal Defense Fund.

    TRINITY: So the AAMC is an academic medical association. We represent academic medicine. And I wanted to ask you about your decision to become a professor, both at Michigan and at North Carolina.

    SHAW: Yeah. So, when I got out of law school, and I wanted to be, as I said, a civil rights lawyer, and there were two places I wanted to work. And I was blessed to work in both places. I was the first one is the Civil Rights Division of the Justice Department. The other one was the Legal Defense Fund. I never gave a thought to teaching. The last thing I wanted to do when I graduated from law school was to come back in any way to law school.

    So, I hadn't planned on that. but I found myself while I was at the Legal Defense Fund asked to teach as an adjunct, and so I started doing some of that, and there came a point at which I was contacted by the University of Michigan Law School. The short of it was they wanted me to teach. I said, I can't do that right now. I had just moved to L.A. to set up a West Coast office for the Legal Defense Fund. They asked me, how long before you, you'll be done with that mission. And I said, you know, three or four years or whatever. And they did contact me. That led to me teaching at the University of Michigan Law School, but also being recruited by a number of others. And so, that was my path into teaching law school. Although I only was at Michigan for three years — I planned to stay there — but got pulled back by the Legal Defense Fund to be the associate director counsel, a number two position. And then in time moved on to the director counsel position.

    TRINITY: So, I wanted to ask you some questions about race-conscious admissions, which, I know you've been involved in that issue in one way or another your entire career. Little bit. So on the eve of the oral argument in the Harvard UNC case, I heard you speak at a rally. And you reflected on when you were a law student — the Bakke decision came out. And for our audience, in the Bakke case, the court rejected affirmative action as a remedial action to address societal discrimination. And said only that in a signal that perhaps the educational benefits of diversity might justify limited consideration of race. Can you talk about how you reacted to that decision when it came down in 1978?

    SHAW: Well, I was a rising second year student. I had been on the national board of the Black American Law Students Association at the time.

    Now it's just Black Law Students Association. And we had focused on the Bakke case all that year. So I knew how important it was. I was working here in Washington for the summer and the case hadn't been announced yet. I don't remember how I found my way into getting a seat in the Supreme Court that day, but I was there on June 28 of 1978 when Bakke was announced. I left the court just devastated because it was clear to me that for African Americans in many ways Bakke was a loss. and my view on that hasn't changed over the years, which is an odd thing to say for somebody who spent so much time defending Bakke. But the rationale that Justice Powell articulated, the diversity rationale, is not the original rationale for institutions to consciously work to admit African American students and other students of color, people from groups who historically have been excluded. The original rationale was an equal protection rooted or based — 14th Amendment rationale to remedy that history of discrimination and exclusion. Bakke, or I should say Powell's rationale was rooted in the First Amendment interest, not of the students who had been from groups that had been excluded, but in the First Amendment interest in higher educational institutions and enrolling diverse groups of students. A very different rationale, although overlapping and connected. So I didn't know how much, how much that diversity rationale could carry. But also, there was some things lost in Powell's rationale and Bakke for African Americans in particular. that in many ways have never been recovered.

    And there's some things that Bakke said, or Powell's opinions said in Bakke, that I thought then, and I continue to think, were just wrong or incorrect. So, it was not a clear victory. And yet, for the next 25 years until Grutter and then another twenty some-odd years, you know, the diversity rationale carried a lot. And I supported, but I still supported as a, in many instances, not in all, a second-best alternative for reasons that, I still believe in. So, it's now three months since the Supreme Court issued a decision in Harvard UNC, and in that case, the court has significantly changed the legal framework for admissions.

    TRINITY: How are you processing that decision now?

    SHAW: Still processing it, still trying to get a handle on what it's going to mean. I don't think we know yet, you know? While I think it's true hat the majority opinion, the Chief Justice's opinion, left the door open to diversity efforts that can consider minority applicants, people of color, and what that status has meant in their life, in their essays for example, it's clear that a significant part of the court wants to and intended to close the door to any consideration of race, under what I consider to be the mistaken, I think, largely false premise, that race consciousness equals racism, which I think is a false equation.

    What it's going to mean, I don't know. But we have some experience already in some states with what these kinds of decisions mean, and it's a mixed bag. Some of it's not good.

    TRINITY: The AAMC Filed an amicus brief in the Harvard/UNC case. Yeah, we made the argument that a diverse health care workforce is needed for the country's health. Yeah, but some have argued that there's a conflict between the notion of merit and diversity. What do you make of that argument?

    SHAW: Well, a couple of things that, well, there's actually not a couple of things. There's a lot to be said about that. One is the question of what is merit? What constitutes merit? How do we measure it? But not only that — how do we define merit in a world in which the way into these opportunities and these institutions is very uneven for people from different backgrounds? So a couple of things about this. One is that many Americans are deeply invested in the notion that merit is largely, if not exclusively, measured by standardized tests and standardized test makers won't even — in fact, they will say that to use standardized tests as the sole criterion for admissions and high-stakes decision is a misuse of that test and an abuse of those tests. Most Americans don't know that, and even if they're told that, they resist it. They don't want to believe it, etc. So there's that whole piece.

    But how do we measure merit from the standpoint and looking at people who have uneven privileges, uneven experience in terms of the schools that they go to in grade school, in high school, what opportunities they have, whether they can be exposed to taking standardized test prep or AP courses and things like that. It's a very complex set of issues that I think we have to talk about. I will say without hesitation that for African Americans in particular, and we don't live in a kind of biracial world never did, but certainly America at one time was more of that than it is now.

    But the point I'm making is that for African Americans in particular the experience of the schools that, the public schools that many of us go to, the opportunities we have there is very different. And then on top of that, we know that the strongest correlation that standardized test scores have is with the educational level of parents and also the economic status of parents. And we know that African Americans are disproportionately economically unprivileged. The mayor of Boston, who happens to be an Asian American woman, has talked a lot these days about how the median wealth of white families in Boston is about $247,000. The median wealth of black families in Boston is $8.

    That's an extraordinary difference, but that's not atypical. So we act as if there's an even playing field when we come to this issue of merit. Is there anything but that?

    TRINITY: That's a good point. And my colleague, Dr. Alison Whelan, she's said in connection with merit for medical school applicants, academic credentials are necessary but not sufficient and that medical schools are looking for bedside manner, leadership skills, professionalism. And so that's why medical schools take a holistic review, an individualized review, and they're looking for the next generation of physicians.

    SHAW: Yeah, and if I may, and I realize I talk too much, but one of the things that Bakke got wrong, there's a passage in there when Powell, with all due respect, said that UC Davis Med School made was that if you had admitted... black and brown students that you would end up with more of those physicians serving in black and brown communities that are underserved. And Powell in a way that I think was a little indignant said, why would you make that assumption? There's nothing that suggests that those students would be more likely to serve in those contexts. I thought it was wrong when it was decided, but that's, I think, been blown away now. It's been disproven. And one of the studies that recently came out had to do with women, who have — black women who have doctors that are physicians, access to physicians who are black and brown that they have different health results than other doctors. This stuff does matter. It does. It does make a difference. So absolutely. And there's a growing body of evidence suggesting that a diverse health care workforce does lead to better health outcomes.

    TRINITY: Yeah, I wanted to ask about looking ahead with the Supreme Court. There's a case that might be heard by the Supreme Court next term. T.J. — Thomas Jefferson School of Science and Technology in Fairfax County. Yes. Right down the road here. So, in that case, the school board, they opened up slots for public school students more, more broadly. They put more focus on socioeconomic status, and they dropped an admissions test, and they've been sued. Now, those measures were race neutral and they were upheld by the fourth circuit. But that was before the Harvard/UNC case. Does the T.J. case concern you?

    SHAW: It does, and what you've just outlined goes back to what I was saying about what people believe about standardized tests. It's not that they don't have a place in the world, but the notion is that that's the so measure. And so I am concerned about that and the individual who was behind the Harvard and the UNC cases, Ed Blum, has made it clear that he is going to challenge everything and anything that he considers to be a proxy for race. So even if you have race neutral policies adopted, if he deems them to be adopted because an institution or people think that it's going to result in more or continued admission of black and brown students, he's going to challenge it.

    By the way, same individual who challenged an enormously important part of the Voting Rights Act that was struck down, the operating formula for Section 5 in 2013, he has an agenda. And I won't say more than that at this point, but for me it's clear. So, yes, I'm concerned about T.J. I'm concerned about, you know, where I grew up in New York City, Stuyvesant High School. The only criterion for admissions at Stuyvesant is a standardized test. The test makers go to the bank on these tests, but if you press them, they will tell you that it is a misuse of a standardized test to make it the sole criterion for admissions in high-stakes admissions. Not that it doesn't have its place, but there's a lot of misuse of standardized tests and abuse. And so, I think we're going to see around of litigation coming up that includes or if not centers on that issue.

    TRINITY: No, I think our medical schools would agree with that last point. Every year, at least 15% of the highest MCAT scores and GPAs, those applicants do not get into any medical school. Why is that? To get into medical school, you must be interviewed. And probably during the interview process, the schools see that there are better candidates for bedside manner and altruism and professionalism. They're the ones that are getting in. I wanted to move from race-conscious admissions. Take a little higher vantage point.

    OK, so our CEO, David Skorton — Dr. David Skorton, he's urged our community in the public space to try to be kind, empathetic, to listen to the other side, to be open to other opinions while speaking out on issues of importance to us. Now it's clear that the country is divided and there's a lot of vitriol out there yet you have been on many panels with people that have diametrically opposed opinions to you. Is that because you're a professor or is something more going on there?

    SHAW: Well, I've done it for a number of reasons. Yes, being a professor, I think, there are compelling reasons too in those kinds of programs and exchanges. But I've always believed that it's important to talk with people with whom we disagree. And, you know, there's a dialectical process that I think is worth engaging in. I think we're all better for doing that and the hope is that it moves us to a higher plane or place when we engage in social discourse. I am very concerned with where the country is now, in existential ways, you know, democracy But, even more, just how we treat each other as, citizens and others who live in this country. We are in a very dangerous place. Now, having said that, even I am struggling now, you know, the — one of the places that I went, I probably won't name it, I would go to their national conventions regularly. Part of it maybe this was arrogance. I was thinking that there shouldn't be any places where what they were saying — were not exposed to other views. But also, as I said, I believe in being exposed to other people's views. But I'm concerned with, some of the ways even this organization has gone about his business in recent years and so I've struggled because I don't want to be a fig leaf for some of what they've done. So maybe I won't go to their functions anymore, but I will still talk with others with whom I will disagree. I hope that we can find a better place, but when the country is being led by folks who don't even talk to one another, that’s hard to do.

    TRINITY: I wanted to ask about some of the anti-DEI legislation that's being proposed, and according to the Chronicle of Higher Education, 40 bills in 22 states have been proposed and seven have passed which would essentially prohibit or limit diversity, equity, and inclusion offices or staff or training in our community. This is causing great moral distress. And I'd like to get your perspective. What would you say to those in our community who are witnessing this or being directly affected by these state legislations?

    SHAW: Well, I hope they remain committed to what is the essence of, you know, diversity and inclusion initiatives. I mean, this is — the notion that we somehow are going to be cowed and frightened out of inclusion work, that's — I don't even know what to say about that. It's so deeply troubling. But I hope that commitment remains no matter what state legislatures say, although I know that we have to deal with the laws and we have to be careful about how we go about our business in this world in which we see a lot of regressive court decisions, but also legislative measures that are being enacted this country is going to continue to change. Change is always inevitable, but the demographics of the country are changing, will continue to change. For some people, that's made them unhinged, which explains a lot of what we've seen in recent years. But that change will continue, the notion that we don't respect each other, and that there are groups of people who are excluded, not included, etc. It's just a form of, I think, a societal suicide.

    So I just hope that we find a way to remain committed to these principles. Not just out of altruism. Altruism is a wonderful thing, I think. But what's more reliable is self-interest. And there are a lot of compelling reasons based in self-interest that we should continue this work. That's why all these amici briefs, including, you know, yours, were filed in the SFFA cases and before that in the Fisher cases and in Michigan and etc. So, this is a matter of self-interest. My colleague Geoffrey Young is — Dr. Geoffrey Young is helping the AAMC to support and promote pathway programs. These are programs where, going all the way down to middle school, they encourage students who might be from disadvantaged backgrounds, who might not otherwise think of themselves as having a future in medicine or science. When the Harvard/UNC case came out, at one of these programs some of the kids were asking, is there a future for us in medicine and science after this decision? What would you say to those students?

    SHAW: Yes. I would say there is a future. There may be those who may want to challenge that. But I think that they are on the wrong side of history. And even a Supreme Court decision isn't in many ways the last word. I think about, you know, I read this biography, a wonderful biography, a few years ago by David Blight of Frederick Douglass. And when I got to the point in that book where Dred Scott was decided, and I thought about Dred and Harriet Scott return to enslavement because of that decision, and the Chief Justice of the United States, you know, that same Supreme Court in another era saying that black people had no rights, that white people were bound to respect, but not only that, that the founding fathers never intended that anyone of African descent can be a citizen. Think about the despair in that moment. You know, free African Americans in the North and the West and all over the country, and including some free African Americans, as free as they could be, in the South, were told they could never be citizens. I mean, the case went far beyond what it should have decided. But what a moment of despair that was. Sometimes you can't see your way forward. But eight years later, slavery was dead in its grave. Took a civil war, but that's what happened. And another few years later, the 14th Amendment was enacted. You can't tell. All you can do is fight in the moment. I often say that if you fight, you may win, you may lose. But if you don't fight, you can't win. And so, my point is, is that we don't know the path forward. But we cannot give up hope. You got to keep fighting. These children have a future and a place. If it's in the medical profession that they want to do it, one way or another it's going to happen. But we all have to keep fighting to make sure that that's true.

    We don't know how it's going to happen, but I believe it's going to happen. That's the essence of hope. Wow. Well, what gives me hope from the perspective of AAMC Is the courage in which our medical schools and teaching hospitals met COVID. And even since before, we have things called medical legal partnerships where physicians and lawyers and social workers are addressing the health needs of their patients, which medicine is only a part of the solution and then the passion — the passion — that our community has to train the next generation of physicians. That, that gives me hope. You've given us all hope over your career, Ted, and I want to thank you for spending time with us today.

    SHAW: Well, thank you, Frank. And I can't tell you how much part of my hope comes from not only young people, but you know, folks like you, all like you who are doing this work and who believe in this.

    Um, I believe that, uh, I believe we'll prevail even if we have these difficult moments. Thank you. Okay. Thank you.

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