“Race still does matter as an identity and as a way that people experience the world”

After graduating from high school in Lexington, Andrew Brennen  headed to the University of North Carolina at Chapel Hill. As a student there, he got deeply involved in the affirmative action debate, joining an effort that eventually turned into a U.S. Supreme Court brief strongly defending affirmative action in college admissions. He testified during the district court trial and sat in the gallery during the Supreme Court’s oral arguments on affirmative action, as well as defending race-conscious admissions in The New York Times and The Guardian. 

The NAACP Legal Defense Fund chose Andrew earlier this year for its Marshall-Motley Scholars Program. He and the nine other recipients get their law school costs fully paid for in exchange for committing to working in civil rights law on behalf of black communities in the South for the first eight years of their careers. Andrew is starting at Columbia Law this fall. 

In our recent conversation, Andrew discussed the importance of racial diversity, the flaws in our discourse about college admissions and the potential of civil rights law to improve Kentucky. (This interview has been condensed.) 

Perry: Most people attend a college that admits the overwhelming majority of those who apply. There are plenty of spots that black people and other students from minority groups can get at, say, the University of Louisville, University of Kentucky, University of Georgia, other schools like that. This fight over affirmative action, in terms of colleges, is really about 50-100  schools. Why is it important for black students to be in those particular schools? 

Andrew: The Supreme Court majority opinion made that case best when it exempted the military academies from its ruling, making the case that leadership of our military institutions should reflect the diversity of the enlisted soldiers. I’d apply that same logic to our economic, business and education institutions. These leadership positions need to be assumed by folks who represent the diversity of this country. 

Our top colleges and universities, for better or worse, are the pipelines to leadership of those institutions. So for these institutions to be diverse, the pipelines themselves need to be diverse. 

Is it possible that if there are not many black students at say, Yale or Harvard, that the power of those institutions declines? Maybe major employers hire from other places and those colleges become less of the pipelines? Shouldn’t American society be thinking about creating pipelines that aren’t dominated by 15-20 schools? 

I'm thinking about the pipelines at all levels, first of all. As I think about leadership roles within local communities, it’s important that they reflect the diversity of those communities. 

I totally think that we should be challenging the current system. It’s questionable how much schools like Harvard that claim nonprofit status are fulfilling a public mission that would justify that nonprofit status, especially as they continue to amass huge amounts of wealth in their endowments and continue to restrict the number of students that can be admitted. I definitely think it's worth questioning that system.

The red flag that I've been raising around this Supreme Court decision is that the research from other states and schools that have ended race-conscious admissions points to a pretty immediate, sharp decline in the number of black students. I think at least some schools are going to use creative means to preserve and continue to grow the diversity of the student body. But I’m concerned about how this affects things directly in the near term.

But I totally take your point that we should be challenging the system that accrues so much power among so few institutions.

One argument is that we should have affirmative action, but it should be based on class/socioeconomic status. So just to be very direct here. Your dad was the dean of the University of Kentucky’s law school. So let's assume you did not grow up in the poorest of families, maybe not the richest either. Why is it important for us to consider race, in addition to class?

There's two kinds of answers. The first has to do with the nature of race and class, they fundamentally reflect different experiences. …..Part of the conversation around affirmative action has to be reinforcing this idea that race still does matter as an identity and as a way that people experience the world.

That feeds right into the second, which I think is probably a more overarching frame worth discussing, which is this idea in general that the college admissions process is a true meritocracy. 

The reality is, for a lot of these top schools at least, that they receive many more qualified applicants than they have seats that they can fill. Harvard could fill their entire class with students who have perfect SAT scores. They choose not to do that because they are valuing a range of things in their college admissions process. And I think it's worth questioning, “What are the things they're valuing and why?” 

Like Harvard is not sitting there literally ranking all of their applicants and then picking the best ones. They have a highly holistic process that involves choosing among the qualified applicants.

Once you kind of push back on the meritocracy frame, you're able to weigh the different things that the colleges are weighing. 

I think the idea is that the most meritocratic person is one who scored a 1600 on the SAT, has a 4.0 GPA, is Asian, Black or Hispanic (so perhaps suffered from racial discrimination) and comes from a family that is on Medicaid. The assumption is that the most meritocratic people are those who arose from the hardest circumstances. Why is that flawed? 

I think you want all kinds of people to make up a college, a class. It’s not necessarily flawed if you think about it in terms of a meritocratic system. I think the flawed piece is to believe that the colleges are truly designing their admissions process for a perfectly meritocratic system.  I don't think that's what they're doing. They're driven by a variety of incentives. So to unilaterally remove one [race] just tilts the scales. 

Colleges themselves are not looking for the most meritocratic candidates. They have a variety of incentives in their admissions process. Some that are legit, some that are not.

So I agree the colleges aren’t currently evaluating merit in a straightforward way. But let’s say they did. They picked the kids based on lowest-income, scoring a 1600 on the SAT, 4.0, etc. Talk about that—why that still might not be the right frame? 

It’s just so reductionist. How do you compare, you know, two similar candidates of similar income levels from different counties in different states? How do you compare their relative merit? It’s just not a viable way to run an admissions process in this way. 

It’s just not possible to truly rank students in that sort of way. That's one of the fundamental flaws that are preventing us from having a more productive conversation about what it is we're valuing and how colleges are choosing to value different characteristics within the admissions process.

It feels like the conservative lawyers did a pretty good job pitting Asian-Americans against black Americans. Do you agree? 

The zero-sum conversation around affirmative action in college admissions, this idea that if you admit this black student, that’s coming at the expense of this potentially more qualified white student or Asian student, that oversimplifies what's at stake within the college admissions process. It gets back to where we started the conversation.  The risk, the potential harm that the Asian student might face in that scenario, pales in comparison to the harm that all of us face when you don't have democratic institutions that reflect the diversity of this country.

That’s not hypothetical. We’re really seeing it happen right now. I work in the education system. You have an education system that is overwhelmingly run by white people, and the student population is increasingly students of color. We need these institutions to reflect the diversity of this country, not just for touchy-feely sakes, but because we need them to be able to deliver on behalf of the communities that are making up this country. 

So how would you design admissions systems for colleges that get away from this meritocracy idea? 

That's an interesting question. I haven't really totally let myself wonder .. They definitely need to increase the number of students that are being admitted. The real thing is these schools just need to be more straightforward and honest about what it is that they're trying to do with their admissions process. And I think regulators should be scrutinizing whether or not that deserves nonprofit status. If Stanford's goal is to accrue and to multiply wealth, and it considers itself to be closed to the public and wants to extend admissions to children of alumni, Stanford should say that. 

That's what's happening now, but we're pretending like it's a meritocracy. Part of this is just about being honest. People should be able to choose. Do you want to go to a school whose explicit purpose is to accrue and hoard wealth and power among white people and uphold the patriarchy? Is that what you want out of a school? Or do you wanna go to a school that has a different mission? 

In other words, if Harvard's actual goals are, “We’re going to admit a few black students for pr reasons and we’re going to admit a lot of students whose parents might give huge donations to the university,” they should openly acknowledge both of those goals, as opposed to just the first one. 

Yeah, exactly.

We’re already seeing the results of this ruling. The University of North Carolina at Chapel Hill announced race could not be considered at all in admissions. Some other places are getting rid of scholarships that were designated for minority students. How bad is it and how bad will it get? 

I really couldn't say. I haven't taken a full-blown look nationally. 

I'm more focused on what's happening in Kentucky. I have been really disappointed to see university presidents in Kentucky talking about doing away with race-based scholarships. And I hope that black donors to these universities who have placed restrictions on their donations are paying attention to that.

I've heard of universities receiving letters [from conservative activists] threatening their use of different characteristics as part of the admissions process. 

It’s all a real shame. Civil rights advocates, who are already trying to defend voting rights and other issues that are disproportionately impacting black communities, have to now also be defending on college admissions. 

What specifically is happening at schools in Kentucky? 

UK is the one that has been talking about their race-based scholarships. Capilouto 

[Eli Capilouto is UK’s president] said explicitly that they're going to do away with them. I think that's problematic. 

They are probably looking at not just the race-based scholarships, but also the LBGTQ ones. 

You have committed to doing civil right laws in the South as part of this program you are in. What do you want to do specifically after you get your law degree? 

The main thing is education. That’s where my interest is. 

We have a state right to an education in Kentucky, because we had a class action lawsuit in the 80s that kind of overturned our entire education system, a powerful ruling from the state Supreme Court that charged the legislature with creating a really strong public education system. A lot of states ended up modeling their state constitutions and subsequent litigations after what happened in Kentucky. So we used to actually lead the nation on that. 

But since then, there’s been little done to really define what it means for Kentucky students to have a right to an education. 

When you have an education system where you have more suspension and expulsion events of black students than you have black students in the system, have those students had their right to an education met? At the Kentucky Student Voice Team, we've worked with a lot of students who have done everything right, gotten good grades and good attendance all throughout high school, and then end up in community college or school in Kentucky and find out that they have to take basically a year of remedial courses on their own dime. So they're in a ton of debt, having taken a bunch of remedial courses. That raises questions about whether or not students like that have received their right to an education. 

The state legislature has passed these anti-trans bills, where you have queer students who don't have access to sexual health education, who can't form clubs and express themselves as their fellow students can, who don't get to see themselves represented in their class curriculum just because they're queer, those students’ rights to education are being violated. So that’s the kind of thing I am interested in, from an education law and civil rights standpoint. 

I really believe that there are a lot of systems that intersect with our education system that drive the outcomes of that system. For example, the fact that we still buy new diesel school buses, even though we know that they poison kids, that they cause asthma, that they reduce educational outcomes. And the kids that are on the buses, whether that be in the inner city or throughout rural Kentucky, are the ones who inhale diesel exhaust the most. And there is no safe level of diesel exhaust for elementary middle school students to inhale.

So there are lots of issues that I think intersect environmental policy and educational policy that directly impact student outcomes and disproportionately students of color that I’d be interested in trying to work on. 

You have talked about wanting to keep doing work here in Kentucky. But you’re black, you’re young, you have a UNC degree and a Harvard degree already. Are you sure you want to come back and live in Kentucky?

Oh yeah. Oh yeah. Kentucky's my home. What do you mean? My brother lives here. My best friends live here. …. Kentucky's a beautiful state. 

My goal has always been to bring national resources and ideas and friends to Kentucky for the benefit of our home state.